Effective Date: November 2, 2018
These User Terms of Service (the “User Terms”) govern your access and use of our online organization productivity tools and platform (the “Services”). Please read them carefully. Even though you are signing onto an existing organization, these User Terms apply to you as a user of the Services.
First things First
These User Terms are Legally Binding.
These User Terms are a legally binding contract between you and us. As part of these User Terms, you agree to comply with the most recent version of our Acceptable Use Policy, which is incorporated by reference into these User Terms. If you access or use the Services, or continue accessing or using the Services after being notified of a change to the User Terms or the Acceptable Use Policy, you confirm that you have read, understand and agree to be bound by the User Terms and the Acceptable Use Policy. “We”, “our” and “us” currently refers to the applicable 5 Dynamics entity in the Contract (defined below).
Customer’s Choices and Instructions
You are an Authorized User in an Organization Controlled by a “Customer”.
An organization or other third party that we refer to in these User Terms as “Customer” has invited you to an organization (i.e., a unique domain where a group of users may access the Services). If you are joining your employer’s organization, for example, Customer is your employer. If you are joining a non-profit organization created by a friend using their personal email address, the friend is our Customer and they are authorizing you to join their organization.
What This Means for You—and for Us
Customer has separately agreed to our Customer Terms of Service or entered into a written agreement with us (in either case, the “Contract”) that permitted Customer to create and configure an organization so that you and others could join (each invitee granted access to the Services, including you, is an “Authorized User”). The Contract contains our commitment to deliver the Services to Customer, who may then invite Authorized Users to join its organization. When an Authorized User (including, you) submits content or information to the Services, such as profile data or picture (“Customer Data”), you acknowledge and agree that the Customer Data is owned by Customer and the Contract provides Customer with many choices and control over that Customer Data. For example, Customer may provision or de-provision access to the Services, manage permissions, share connections, and these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all Customer Data.
The Relationship Between You, Customer and Us
AS BETWEEN US AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A) INFORM YOU AND ANY AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF CUSTOMER DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ANY AUTHORIZED USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA AND THE OPERATION OF THE SERVICES; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF CUSTOMER DATA UNDER THE CONTRACT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ANY AUTHORIZED USER RELATING TO OR BASED ON CUSTOMER DATA, THE SERVICES OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS. 5 DYNAMICS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICES, WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.
THE APPLICATION CONTENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW. NEITHER THE COMPANY, NOR OUR SUBSIDIARIES OR LICENSORS, MAKE ANY WARRANTY THAT THE APPLICATION CONTENT OF THE SITE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE APPLICATION CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT YOU WILL ACHIEVE SUCCESSFUL RESULTS FROM FOLLOWING ANY INSTRUCTIONS, DIRECTIONS OR RECOMMENDATIONS ON THE SITE.
A Few Ground Rules
While You Are Here, You Must Follow the Rules.
To help ensure a safe and productive work environment, all Authorized Users must comply with our Acceptable Use Policy and remain vigilant in reporting inappropriate behavior or content to Customer and us.
You Are Here at the Pleasure of Customer (and Us).
These User Terms remain effective until Customer’s subscription for you expires or terminates, or your access to the Services has been terminated by Customer or us. Please contact Customer if you at any time or for any reason wish to terminate your account, including due to a disagreement with any updates to these User Terms or the Acceptable Use Policy.
Limitation of Liability
If we believe that there is a violation of the Contract, User Terms, the Acceptable Use Policy, or any of our other policies that can simply be remedied by Customer’s removal of certain Customer Data or taking other action, we will, in most cases, ask Customer to take action rather than intervene. We may directly step in and take what we determine to be appropriate action (including disabling your account) if Customer does not take appropriate action or we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties. IN NO EVENT WILL YOU OR WE HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS YOU ARE ALSO A CUSTOMER (AND WITHOUT LIMITATION TO OUR RIGHTS AND REMEDIES UNDER THE CONTRACT), YOU WILL HAVE NO FINANCIAL LIABILITY TO US FOR A BREACH OF THESE USER TERMS. OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY BREACH OF THE USER TERMS IS ONE DOLLAR ($1) IN THE AGGREGATE. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND DO NOT LIMIT EITHER PARTY’S RIGHT TO SEEK AND OBTAIN EQUITABLE RELIEF.
You agree to defend, indemnify, and hold 5 Dynamics and our parent, subsidiary and other affiliated companies, and their employees, contractors, officers and directors harmless from all liabilities, claims and expenses, including attorney’s fees, that arise from your use or misuse of the Application, Website or the content therein. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
The sections titled “The Relationship Between You, Customer, and Us”, “Limitation of Liability”, and “Survival”, and all of the provisions under the general heading “General Provisions” will survive any termination or expiration of the User Terms.
The following terms and expressions shall have the following meanings:
- Additional Terms: the terms and conditions and policies applicable to Your use of the Simpli5 website, services, Application, Reports, and the products, in addition to this Agreement.
- Agreement: this User Terms of Service, as may be renewed and/or amended from time to time.
- Application: means the Simpli5 Application, the website, its features, algorithms, tools, wizards, content, and data.
- Content: means any and all content consisting of text, sounds, pictures, photos, video and/or any type of information or communications.
- Documentation: any online or otherwise enclosed documentation provided by 5 Dynamics.
- Effective Date: the date on which this Agreement is entered into by clicking on ACCEPT.
- IP Rights: means (i) patents, pending patent applications, designs, trademarks, and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow, trade secrets and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals in relation to any such rights.
- Password: refers to a code You select, which, in combination with your email address, gives You access to your user account.
- UI: the user interface of the Simpli5 Application.
- User Account: refers to the account with the Email Address and Password that You create for Your use of the Simpli5 Application.
- You: refers to you, the end user of the Simpli5 Application.
You hereby agree to the use of electronic communication in order to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Simpli5 website. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which requires an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
License and Restrictions
License: Subject to the terms of this Agreement, 5 Dynamics hereby grants You a limited, personal, non-exclusive, non-sublicensable, non-assignable license to use the Simpli5 Application on Your computer for the sole purpose of personally using the Simpli5 Application.
No Granting of Rights to Third Parties: You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Simpli5 Application or any part thereof.
Exclusive Ownership: Any and all IP Rights in the Simpli5 Application, the Simpli5 website and 5 Dynamics’ online materials are and shall remain the exclusive property of 5 Dynamics. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with 5 Dynamics’ IP Rights. Any unauthorized use of 5 Dynamics’ IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
No Removal of Notices: You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or 5 Dynamics’ rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
Your Use of the Simpli5 Application
You agree that you shall only use the Simpli5 Application in the manner for which it is designed, for the purposes of performing an assessment, reviewing the resulting assessment report, downloading any reports or information permitted by the Simpli5 Application for download, and for such other purposes for which you may be expressly authorized in writing by 5 Dynamics. You agree not to duplicate, re-distribute, disassemble, decompile, modify, merge into other materials, copy or reverse engineer 5 Dynamics proprietary software, the Simpli5 Application, or any information obtained from the Simpli5 Application. You agree that you will not attempt to unlock or bypass any copy-protection, licensing or authentication algorithm utilized by 5 Dynamics software or the Simpli5 Application. You agree that you shall not remove or modify any copyright notice, nor any “About” dialog, or the method by which it may be invoked. Infringements of the proprietary materials, trademarked materials and copyrighted materials and information included in the Application and other violations of these conditions of use may result in severe civil and/or criminal penalties and shall be prosecuted to the maximum extent allowed by law. You agree that 5 Dynamics may revoke or restrict your access to the Simpli5 Application at any time.
You agree that Your use of the Simpli5 Application is for legitimate purposes only and shall not adversely affect the functionality or performance of the Simpli5 software or services provided by 5 Dynamics.
Nothing in this Agreement will give You any right to use 5 Dynamics’ promotional materials.
Ownership of and Use of Reports
The Simpli5 Application, as well as the assessments and assessment reports created through your use of the Simpli5 Application, are the sole property of 5 Dynamics. Your rights in the assessments and/or the assessment reports created through your use of the Simpli5 Application include and are expressly limited to the following: (1) the limited access rights to use the Simpli5 Application to complete the assessment; (2) limited access rights to use the Simpli5 Application to view the assessment report related to the assessment; (3) the opportunity to download certain reports and information as permitted by the Simpli5 Application; and (4) the opportunity to use what you have learned from the process of using the Simpli5 Application and seeing the assessment reports, as one data point in assessing the significance of your indicated personal characteristics. You grant 5 Dynamics the royalty free, irrevocable, perpetual rights to use, copy, modify, distribute, aggregate, compile and/or publish in its original or modified form the information contained in assessment reports or derived from the assessment process, provided that in doing so 5 Dynamics does not provide your personal information to identify you to others as the subject of the assessment report.
You acknowledge and agree that You are solely responsible for any Content that You upload, submit, post, transmit or display through the Simpli5 Application and/or Simpli5 website and that 5 Dynamics is not responsible to You or any third party for any Content that is used by You or any other 5 Dynamics user.
You agree that You shall not use any Content that is subject to any third-party IP Rights, unless You have a license or specific permission from the owner to use such third-party Content, and to grant 5 Dynamics the license.
You hereby agree to grant 5 Dynamics a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable and transferable license to: (i) reproduce, modify and publish any Content that You use on the publicly accessible areas of the Simpli5 website for the purposes of displaying and distributing such Content on the Simpli5 website for such time as You continue to use such Content on the Simpli5 website; and (ii) distribute and/or display through the Simpli5 Application any Content that You provide or make available using the Simpli5 Application for the sole purposes of making the Simpli5 Application available to You.
5 Dynamics reserves the right (but shall have no obligation) to decide whether any Content that You use complies with this Agreement and any additional terms. 5 Dynamics may in its sole discretion remove such Content and/or terminate this Agreement and Your User Account if You use any Content that is in breach of this Agreement and/or any additional terms at any time and without prior notice to You.
5 Dynamics, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Simpli5 Application. 5 Dynamics has no obligation to make available to You any subsequent versions of the Simpli5 Application.
5 Dynamics may, in its sole discretion and to the maximum extent permitted within Your jurisdiction, modify or discontinue or suspend Your ability to use any version of the Simpli5 Application without any notice to You, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where You, at 5 Dynamics’ discretion, are in breach of the Terms, creating problems, possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.
You agree that you will treat the Simpli5 Application, the assessments, the assessment reports, any information downloaded by you or disclosed to you by 5 Dynamics through the Simpli5 Application, and your password and related access information to the Simpli5 Application as Confidential Information and the trade secrets of 5 Dynamics. You shall not provide access to the Simpli5 Application to any other person without the express written permission of 5 Dynamics. You will not disclose the Simpli5 Application contents, assessments or assessment reports to any third party without the express written permission of 5 Dynamics.
Use of Your Personal Information
You agree that by using the Simpli5 Application, your information will be stored in the Simpli5 database and can be used in the generation of reports or profiles. Further, you agree that your information may be shared with other users of the Simpli5 system. By providing an email address, you agree that you are granting 5 Dynamics the approval to use your email address to send you communication notices from the Simpli5 system including, but not limited to system updates, shared profile information, reports, invitations, contacts from other users, or marketing communication concerning system enhancements and upgrades. 5 Dynamics does not share your personal information with any third-party organizations unless required by law.
You agree You will use the Simpli5 Application solely for lawful purposes. In this respect You may not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You; (b) use any type of virus, spider, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Simpli5 Application; (c) send any unsolicited communication not permitted by applicable law; (d) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way; (e) use the Simpli5 Application to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party; or (f) use (including as part of your user name) any material or content that is subject to any third party proprietary rights, unless you have a license or permission from the owner of such rights.
You represent and warrant that You are authorized to enter into and comply with the Terms. Furthermore, You represent and warrant that You will at any and all times meet with Your obligations under the Terms, as well as any and all laws, regulations and policies that may apply to the use of the Simpli5 Application.
Term, Termination, Updates
This Agreement will be effective as of the Effective Date and will remain effective until terminated by either 5 Dynamics or You as set out below.
You may terminate the Terms with immediate effect at any time. Without limiting other remedies, 5 Dynamics may limit, suspend, or terminate this license and Your use of the Simpli5 Application, prohibit access to the Simpli5 website, and delete Your User Account with immediate effect, automatically and without recourse to the courts, if we think that You are in breach of the Terms, creating problems, legal liabilities (actual or potential), infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. 5 Dynamics shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to Your User Account. We reserve the right to cancel User Accounts that have been inactive for more than (1) year.
Upon termination of this Agreement: (a) all licenses and rights to use the Simpli5 Application shall immediately terminate; and (b) You will immediately cease any and all use of the Simpli5 Application.
Except as otherwise set forth herein, all notices under the User Terms will be by email. Notices to 5 Dynamics should be sent to firstname.lastname@example.org, except for legal notices, which must be sent to email@example.com. A notice will be deemed to have been duly given (a) the day after it is sent, in the case of a notice sent through email. Notices under the Contract will be delivered solely to Customer in accordance with the terms of that agreement.
No failure or delay by either party in exercising any right under the User Terms, including the Acceptable Use Policy, will constitute a waiver of that right. No waiver under the User Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The User Terms, including the Acceptable Use Policy, will be enforced to the fullest extent permitted under applicable law. If any provision of the User Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the User Terms will remain in effect.
You may not assign any of your rights or delegate your obligations under these User Terms, including the Acceptable Use Policy, whether by operation of law or otherwise, without the prior written consent of us (not to be unreasonably withheld). We may assign these User Terms in their entirety (including all terms and conditions incorporated herein by reference), without your consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.
Governing Law; Venue; Waiver of Jury Trial; Fees
The User Terms, including the Acceptable Use Policy, and any disputes arising out of or related hereto, will be governed exclusively by the same applicable governing law of the Contract, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Contract. In any action or proceeding to enforce rights under the User Terms, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
Contacting 5 Dynamics
Please also feel free to contact us if you have any questions about 5 Dynamics’ User Terms of Service. You may contact us at firstname.lastname@example.org or at our mailing address below:
5 Dynamics LLC
2802 Flintrock Trace, Suite 259
Austin, TX 78738