1) Services To Be Provided: Cloud Simpliciti (CS) offers the following automated telephone message transmittal service (the “Service“): (a) appointment reminder calls, (b) prescription renewal reminder calls, and (c) group calls of the Client’s recorded message, in each case to such domestic telephone numbers as Client may enter on its account page on Cloud Simpliciti (CS)’s web site, www.CloudSimpliciti.com. Cloud Simpliciti (CS) shall use commercially reasonable efforts to provide said Service, subject to the Client’s timely payment of Service Fees (hereinafter defined) and compliance with the provisions of these Terms and Conditions.
2) Client’s Entry of Call Data: Client shall either, enter all data required for Cloud Simpliciti (CS)’s providing group call Service, on-line on the Client account page on Cloud Simpliciti (CS) web site, or can have Cloud Simpliciti (CS) upload the data on their behalf. Cloud Simpliciti (CS) grants to Client a non-exclusive, non-transferable, revocable right to use Cloud Simpliciti (CS)’s application software (the “Cloud Simpliciti (CS) Program“) during the Term for purposes of entering such Data and enabling Cloud Simpliciti (CS) to provide Service.
(3) Service Interruptions: In the event of any interruption or failure of or delay in Service (an “Interruption“), Cloud Simpliciti (CS) shall (a) subject to Client’s timely advising Cloud Simpliciti (CS), by e-mail or telephone call, of the Interruption, credit Client all incomplete calls (an “Interruption Credit“), and (b) use commercially reasonable efforts to advise Client, by e-mail or telephone call, of all such Interruptions not corrected by 8:00 P.M., local time, of said day. SUCH INTERRUPTION CREDITS SHALL BE CLIENT’S ONLY REMEDY FOR OR IN CONNECTION WITH INTERRUPTIONS, whether arising from or in connection with delays or difficulties with telephone or electric service or other untoward circumstances, software or hardware malfunction or downtime, fire, natural disaster, act of government, labor dispute, or any other act or condition not caused directly by running CS. Client understands and acknowledges that such interruptions and down time can occur, Client agrees to hold Cloud Simpliciti harmless of any and all claims due to such interruptions, Client is only entitled to additional time to use for calling and thereby maintain the same credit which was available to client prior to any interruptions.
(4)Non-Disclosure and Limits on Use of Client’s Confidential Information: Cloud Simpliciti (CS) shall not use Client Data other than in connection with its Service, and shall not disclose such Data other than as requested by a governmental agency or body or as is, in the opinion of legal counsel satisfactory to Cloud Simpliciti (CS), required by law.
(5) Payment of Service Fees: The number of calls per group call and the number of group calls per call selected by the Client, with the applicable charge per call (also “Service Fee“) for Clients ordering group calls are (in either case) to be entered by Client on its account page on Cloud Simpliciti (CS)’s web site or on Cloud Simpliciti (CS)’s order form. All Package Fees are payable before service begins or upon Cloud Simpliciti (CS)’s written consent, within 10 days of service Payments more than 14-days past due shall be subject to a charge on the past due balance calculated at the rate of 1% per month (or if lower, at the maximum rate permitted by law).
(6) Credit or Debit Card Account Automatic Payment Authorization: By registering for Service by calling a Cloud Simpliciti (CS) representative and giving them credit card or debit card information, or by completing and signing Cloud Simpliciti (CS)’s order form and entering such information thereon, Client authorizes Cloud Simpliciti (CS) to charge said account and to instruct payment there from, when due, to Cloud Simpliciti (CS) of all Service Fees payable. Client authorizes Cloud Simpliciti (CS) to execute Client’s signature to effect such charges and payments, and to such instructions.
(7)Client’s Representations and Warranties: (a) HIPAA Privacy Compliance Client represents and warrants to Cloud Simpliciti (CS) that all Service to be provided by Cloud Simpliciti (CS) pursuant to Client’s request will, subject only to Cloud Simpliciti (CS)’s compliance with the provisions of paragraph 5 of this Agreement, will not violate any HIPAA law or regulation protecting the privacy of health information. (b) Do Not Call Laws Compliance Client represents and warrants to Cloud Simpliciti (CS) that the Service will not violate any Federal and State law and regulation applicable to unsolicited telephone calls. Client takes full responsibility of all Do Not Call laws and understands that Cloud Simpliciti (CS)’s services are merely a tool to help them communicate with clients or potential clients and that advice from Cloud Simpliciti (CS)’s employees should not be taken as legal advice, a third party legal team should be contacted to confirm DNC compliance. (c) No Defamatory Statement, etc. Client represents and warrants to Cloud Simpliciti (CS) that no statement it requests or be transmitted by group call will be defamatory or unlawful or intended in connection with any unlawful purpose.
(8)Sales Tax: Client shall be responsible for and pay the amount of all sales and use taxes applicable to the Service.
(9)Independent Contractors: The parties to this Agreement are independent contractors, and no principal-agent, partnership, joint venture or employer-employee relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
(10) Indemnities; Warranty; Limitation on Liabilities: (a) For Breach of Agreement Each party shall indemnify and hold the other party (and its employees, officers, directors and stockholders) harmless from, and shall pay to the indemnified party (and its employees, officers, directors and stockholders) the amount of their losses, liabilities, damages and expenses (including collection agency fees and charges, costs of witnesses and investigation, and reasonable attorneys’ fees) arising, directly or indirectly, from or in connection with any breach by the indemnifying party of this Agreement, provided that Cloud Simpliciti (CS)’S INDEMNITY OBLIGATIONS SHALL NOT EXCEED THE SUM OF ALL SERVICE FEES RECEIVED FROM CLIENT DURING THE PRIOR THREE MONTHS, AND Cloud Simpliciti (CS) SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES OR LOSSES. (b) For Third Party Claims In addition, Client shall Indemnify Cloud Simpliciti (CS) (and its employees, officers, directors and stockholders), and shall pay to the indemnified party (and its employees, officers, directors and stockholders) the amount of their losses, liabilities, damages and expenses (including collection agency fees and charges, costs of witnesses and investigation, and reasonable attorneys’ fees) arising, directly or indirectly, from any and all claims related to the Service or arising, directly or indirectly, from or in connection with this agreement, by or on behalf of any entity or person not a party to this agreement. (c) As Exclusive Remedy THE INDEMNITIES HEREUNDER PROVIDE THE PARTIES’ EXCLUSIVE MONETARY REMEDIES UNDER OR IN CONNECTION WITH THIS AGREEMENT. (d) Limitation on Cloud Simpliciti (CS)’s Liabilities Cloud Simpliciti (CS)’s total liabilities under or in connection with this agreement shall not exceed the sum of all Fees received from Client during the prior three months. (e) Cloud Simpliciti (CS)’s Warranty Cloud Simpliciti (CS) warrants that it has no reason to believe that the Cloud Simpliciti (CS) Program or its provision of Service infringes a patent, copyright, trade secret or other intellectual property right of any third party. THE ABOVE WARRANTY IS THE ONLY WARRANTY MADE BY Cloud Simpliciti (CS). CLIENT DISCLAIMS RELIANCE ON, AND WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
(11) Miscellaneous: (a) Right to Decline to Provide Service. CS may, with or without cause, decline to provide Service to a Client or a Service to a Client, in its sole and absolute discretion, and shall refund all Service Fees received in connection with any Service not provided pursuant to this provision. (b) Applicable Law These Terms and Conditions constitute the agreement of the parties, and they shall be governed under the laws of the State of California as they apply to a contract entered into and performed wholly within that State, without giving effect to principles of conflicts of laws. (c) Jurisdiction The Supreme and Civil Courts of the State of California, shall have jurisdiction over the parties with respect to any dispute be(tween them arising under or in connection with this agreement. THE PARTIES CONSENT TO SUCH JURISDICTION AND VENUE, AND WAIVE TRIAL BY JURY (d) Notices Notices under this agreement may be give by e-mail or in a writing delivered to the other party. (e) No Third Party Rights No third party shall have any right or remedy under or in connection with this agreement or the provision or failure to provide any Service. (f) Entire Agreement This agreement constitutes the entire and only agreement of the parties. It cannot be amended, waived, or discharged except by writing signed by the party to be charged therewith. (g) No Representations Other Than as Set Forth Herein Each party acknowledges that no promise, representation, inducement, agreement, or warranty, other than those set forth or referred to herein, has been made to induce the execution of this agreement or in connection with its performance. (h) Electronic Signature By registering for Service on Cloud Simpliciti (CS)’s web site or by purchasing a package on Cloud Simpliciti (CS)’s website, Client agrees to these Terms and Conditions, with the same effect as if its signature on this statement of them had been executed and delivered by Client to Cloud Simpliciti (CS).