SIMIOACCELERATE TERMS OF SERVICE

ACCEPTANCE OF THE TERMS OF SERVICE

These Terms of Service, and the additional terms incorporated herein (collectively, the “Terms”) contain the terms and conditions that govern the respective performances of the parties as set forth herein during Client’s Subscription Term and thereafter, including Client’s access to the Platform and Services, and are deemed accepted upon Client’s Subscription activation. Once accepted, these Terms form a legally binding contract between Client and SimioCloud.

PLATFORM ACCESS AND SERVICES

During a Subscription Term, SimioCloud will deem Client’s Subscription as active, enabling Client and its authorized Users, on a non-exclusive and subscription basis, subject to Client’s payment of the subscription fees and compliance with the other terms and conditions of these Terms, to access the Platform and Services available therein.

SUPPLEMENTAL TERMS

Client’s use of certain features and functionality of the Platform and the Services that are made available therein may be subject to additional terms (“Supplemental Terms”) as the Services are evolving. Such Supplemental Terms will either be set forth in the applicable supplemental Services or will be presented to you for your acceptance if determined to be required for your access to the supplemental Services requested. If these Terms are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Services.

LICENSE TO USE THE PLATFORM AND SIMIOCLOUD DATA

During the Subscription Term, subject to these Terms, Client is granted a limited, non-exclusive, non-transferable worldwide license to access the Platform and Services available therein that corresponds with the Client’s selected Subscription plan. Additionally, if the Services accessed by the Client within the Platform results in the Client’s access to and ability to use SimioCloud Data, Client is granted a limited, non-exclusive, non-transferable worldwide license to use the SimioCloud Data, subject to the SimioCloud Data Terms and Conditions of Use, located here: Data Terms and Conditions of Use, which are incorporated into these Terms.

CLIENT DATA TO BE PROVIDED BY CLIENT

Client will provide Client Data to SimioCloud in accordance with SimioCloud’s Client Data Specifications, located here: Client Data Specifications, which are incorporated into these Terms.

Client will upload to the Platform only Client Data for which it has full legal authority to collect and provide to third parties for the uses as contemplated under these Terms.

Client acknowledges that certain types of Client Data may be required to be uploaded to the Platform for Client’s access to specific Services. Client’s ability to utilize certain Services is conditioned upon Client uploading the required Client Data to the Platform. Client is solely responsible for ensuring the Client Data required to be uploaded is uploaded into the Platform for Client’s and/or SimioCloud’s uses.

LICENSES GRANTED BY CLIENT TO SIMIOCLOUD

Permitted Use of Client Data When Providing Services to Client. During the Subscription Term, Client hereby grants to SimioCloud a limited, non-exclusive, non-transferable worldwide license to use the Client Data uploaded to the Platform by Client for purposes of providing the Services selected by Client, including without limitation in connection with creating Digital Audiences and Direct Mail Audiences for the Client’s use as permitted by these Terms. If Client does not authorize SimioCloud to utilize the Client Data as part of the Cooperative Database, Client will only have access to the Non-Cooperative Services that are available within the Platform.

Permitted Use of Client Data When Providing Cooperative Services to Third Parties/Cooperative Database Use of Client Data. Additionally, if authorized by Client and subject to the terms of this section, during the Subscription Term Client hereby grants to SimioCloud a limited, non-exclusive, non-transferable worldwide license to use the Client Data uploaded to the Platform by Client to enhance and improve the Cooperative Database for SimioCloud’s internal uses in providing its Cooperative Services to Client and to other SimioCloud customers. The foregoing license is subject to the following:

(i) SimioCloud may only use Client Data in accordance with this section that is associated with a Client donor for which SimioCloud has a confirmed Data Match;

(ii) Client Data will only be utilized by SimioCloud in deriving output from the Cooperative Database when providing Cooperative Services to other SimioCloud customers that have also licensed their own data, similar to the Client Data, to SimioCloud for use in connection with SimioCloud’s Cooperative Database as permitted by this section;

(iii) SimioCloud will not identify Client to any other current or prospective customer as a contributing data source to the Cooperative Database; and

(iv) no customer of SimioCloud will be permitted the ability to access any Client Data in raw form, through the Cooperative Services or otherwise, or to select, as an output from the Cooperative Services, any SimioCloud Data based upon a match to the Client Data.

Opting Out of the Cooperative Database. Client may opt-out its Client Data from the Cooperative Database at any time and for any reason. Opting the Client Data out of the Cooperative Database can be done by the Client’s Account Administrator within the Administration tab within the Client’s Account. For Client to have access to Cooperative Services that are available within the Platform, Client must be a Cooperative Database Participant. During such times that Client has elected to opt-out its Client Data from the Cooperative Database, Client will only have access to Non-Cooperative Services.

SECURITY OF CLIENT DATA

In addition to any other obligations in these Terms to protect Client Data from unauthorized access and use, SimioCloud will comply with the “SimioCloud Information Security Overview”, located here: Information Security Overview, incorporated herein, in its protection of the Client Data from unauthorized use and access.

DATA CONVERSION

Client acknowledges that SimioCloud Data, in the form of a Digital Audience or Direct Mail Audience, is licensed for Client’s use subject to the usage restrictions stated in the SimioCloud Data Terms and Conditions of Use. Notwithstanding the foregoing, or anything in these Terms to the contrary, any information initially acquired by Client as SimioCloud Data or otherwise was acquired through Client’s use of the Services hereunder including, without limitation, information pertaining to consumers consisting of new customers or donors that Client has acquired through its use of a Digital Audience or Direct Mail Audience will cease to be considered SimioCloud Data subject to these Terms upon Data Conversion, which occurs for Digital Audiences and Direct Mail Audiences as follows:

(i) Digital Audiences. SimioCloud does not consider the consumer records to be SimioCloud Data subject to a license for purposes of these Terms that are associated with consumers that the Client has received confirmed Online Interaction Data as a result of the Client’s use of any SimioCloud Data consisting of Digital Audiences; and

(ii) Direct Mail Audiences. SimioCloud does not consider the consumer records to be SimioCloud Data subject to a license for purposes of these Terms that are associated with consumers that the Client has acquired as a new customer or donor to the Client as a result of the Client’s use of any SimioCloud Data consisting of Direct Mail Audiences.

Notwithstanding the foregoing, as SimioCloud sources consumer information that comprises the SimioCloud Data from multiple sources, SimioCloud is under no obligation to cease its use of any consumer record following Data Conversion with respect to the Client’s use of that consumer’s personal information pursuant to the actions described in subsections (i) and (ii) of this section above.

SUBSCRIPTION FEES; PAYMENT AND INVOICING; TAXES

Client agrees to pay SimioCloud the fees for the Subscription based on the terms of the specific Subscription plan selected by Client and activated by SimioCloud. SimioCloud will invoice Client on a monthly basis. Payment shall be due within 30 days of the invoice date.

All fees and other amounts payable by Client are exclusive of taxes and similar assessments. Client is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on SimioCloud’s income.

If any fees are past due, SimioCloud may, without limiting SimioCloud’s other rights and remedies, suspend Client’s access to the Platform and Services until such amounts are paid in full.

ROLE OF ACCOUNT ADMINISTRATOR

In addition to the duties and responsibilities of the Account Administrator as stated in these Terms, the Account Administrator shall have the sole responsibility to invite Users to join the Client’s Account, ensure Users are granted appropriate accesses within the Platform, in accordance with the Client’s own governing documents, to any Client Data uploaded to the Platform, and approving any accesses to the functionalities within the Platform that are appropriate to the User’s role. Client shall be responsible for all uses of the Client Data, Platform and Services by its Users.

TERM AND TERMINATION; EFFECT OF TERMINATION; ACCOUNT DEACTIVATION

Term and Termination. Client’s initial Subscription Term will be determined by the specific Subscription plan selected by Client at the time of Subscription activation. Unless otherwise agreed by the Parties, each Subscription Term will automatically renew on a month-to-month basis upon expiration of the initial Subscription Term and continue in effect until terminated as permitted by these Terms.

After the initial Subscription Term, either Client or SimioCloud may terminate Client’s Subscription at any time by providing to the other Party written notice of termination at least 30 days prior to the effective termination date. In addition to the foregoing termination rights and any rights of SimioCloud to suspend Client’s access to the Platform of Services as permitted by these Terms, if a Party believes the other Party is in breach of these Terms, the Party not in breach may terminate the Client’s Subscription with immediate effect if such breach remains uncured for a period of 15 days from the date written notice of the claimed breach is given by the non-breaching Party to the breaching Party.

Effect of Termination. Upon termination of the Client’s Subscription for any reason the Client’s access to all Services and SimioCloud Data will be terminated effective immediately.

Account Deactivation Following Termination. Client’s Account Administrator may deactivate the Client’s Account at any time following the end of the Subscription Term. Upon deactivation of the Client’s Account, all Client Data will in the possession of SimioCloud be promptly deleted by SimioCloud, but not later than 30 days following Account deactivation.

COMPLIANCE WITH LAWS

Each Party agrees to comply with applicable laws, including but not limited to U.S. Data Protection Laws, that are applicable to each Party with respect to their respective performance of and compliance with these Terms. SimioCloud will comply with its obligations in accordance with the DPA when acting as a “Processor” or “Service Provider” when processing Personal Data in the form of Client Data used to perform Services specifically for Client (which, in turn, Client may be the “Controller” or “Business” under applicable U.S. Consumer Data Protection Laws). SimioCloud will also comply with its obligations under U.S. Data Protection Laws when acting as a “Controller” or “Business” under applicable U.S. Data Protection Laws in its own processing of Personal Data, in the form of SimioCloud Data and Client Data, when used by SimioCloud to perform Cooperative Services specifically for other SimioCloud customers as permitted by these Terms.

SimioCloud’s compliance with its obligations under applicable U.S. Data Protection Laws acting as a “Controller” or “Business” is described in SimioCloud’s Privacy Notice / Products and Services Privacy Policy, located here: SimioCloud Privacy Notice / Products & Services Privacy Policy | SimioCloud. As stated in the DPA, Client may be deemed a Controller as defined under applicable U.S. Data Protection Laws, with respect to SimioCloud Data that Client acquires from SimioCloud pursuant to these Terms for the Client’s uses as permitted by these Terms, and Client will comply with its obligations under applicable U.S. Data Protection Laws when acting in such capacity if and when required.

CONFIDENTIALITY

Definition of Confidential Information. “Confidential Information” is information that is identified as confidential at the time of disclosure or would reasonably be considered confidential in the circumstances under which it was disclosed including, but not limited to, any non-public information concerning any aspects of the business of the disclosing Party including: financial condition and projections; business, marketing or strategic plans; customer/client/donor list and any information contained therein including, without limitation; customer/client transactions; pending or threatened litigation; prospective contractual relations, collection, tabulation and analysis of data; computer programming methods, source code, object code, specifications, plans, drawings and similar materials; programs, databases, inventions (whether or not eligible for legal protection under patent, trademark, or copyright laws); research and development; price lists; databases; trade secrets; product prototypes and designs; techniques, formulae, algorithms and other non-public process information; and any other document clearly marked “confidential”.

For the avoidance of doubt and not to limit the generality of the foregoing: (A) SimioCloud’s Confidential Information includes, but is not limited to, any non-public information regarding the Platform and Services to which the Client has access during the Subscription Term including, but not limited to SimioCloud’s data mapping and audience creation/modeling techniques and processes, any other related transactional data and information identified by SimioCloud as confidential; and (B) Client’s Confidential Information includes, but is not limited to, Client Data and Client’s marketing strategies, goals and results as may be communicated by Client to SimioCloud.

Obligations Regarding Confidential Information. SimioCloud and Client will use the same degree of care not to disclose the other Party’s Confidential Information to third parties, other than those disclosures as authorized by these Terms, that such Party uses to protect its own Confidential Information of a similar nature, but in no event will such degree of care be less than reasonable.

Permitted Disclosures of Confidential Information. SimioCloud may engage third parties in accordance with these Terms for certain aspects of the Services including, without limitation, the hosting of any Client Data while in SimioCloud’s possession or control. SimioCloud is responsible for ensuring compliance by such third parties with these Terms to the same extent that SimioCloud is responsible for the acts or omission of SimioCloud’s own employees. Except to the extent disclosed by Client or required to be disclosed to communicate with SimioCloud’s or Client-designated agents or service providers, SimioCloud will not disclose that Client is a recipient of any of the Services without Client’s approval.

Required Disclosures of Confidential Information. In the event either Party receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information of the other Party, the recipient Party shall promptly notify the disclosing Party and tender to it the defense of such demand. Unless the demand shall have been timely limited, quashed, or extended, the recipient Party shall thereafter be entitled to comply with such demand to the extent permitted and required by law. If requested by the Party to whom the defense has been tendered, the recipient Party will reasonably cooperate (at the expense of the requesting Party) in the defense of any such demand.

PROHIBITED USES

Client and its Users may use the Platform and Services for lawful purposes only in accordance with these Terms. Client agrees, on behalf of itself and its Users, not to use the Platform and Services in any way that violates any applicable federal, state, local, or international law or regulation, including without limitation any laws regarding the export of data or software to and from the US or other countries.

Additionally, Client agrees, on behalf of itself and its Users, not to:

Use the Services in any manner that could disable, overburden, damage, or impair the Platform or interfere with any other party's use of the Platform, including their ability to engage in real time activities through the Platform.
Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
Use any manual process to monitor or copy any of the material on the Platform, or for any other purpose not expressly authorized in these Terms, without our prior written consent.
Use any device, software, or routine that interferes with the proper working of the Platform.
Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Platform, the server on which the Platform is stored, or any server, computer or database connected to the Platform.
Attack the Platform via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Platform.
copy, modify, create derivative works or improvements of the Platform or the Services.
make the Platform or the Services available to anyone other than Users.
reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to SimioCloud’s source code.
sell, resell, rent, lease, or otherwise make available the Platform or the Service to any third party.
use the Platform or the Services to store, create, or transmit infringing, libelous, or otherwise unlawful material, or to store or transmit material in violation of third-party rights, or otherwise access or use the Platform or the Services in any manner or for any purpose that infringes of violates intellectual property rights of any third party.
access or use the Platform or the Services for purposes of competitive analysis of the Platform or the Services, or to develop a competing service or product or for any other purpose that is to the detriment or commercial disadvantage of SimioCloud.

In the event Customer fails to comply with this section, SimioCloud may, without limiting SimioCloud’s other rights and remedies, suspend the Client’s access to the Platform or the Services without incurring any obligation or liability, until such breach has been remedied to SimioCloud’s reasonable satisfaction.

ACCESSING THE PLATFORM

SimioCloud reserves the right to withdraw or amend any material we provide on the Platform or Services in our sole discretion without notice. SimioCloud will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time-to-time, we may restrict User access to some parts of the Platform or the entire Platform. You must ensure that all persons who access the Platform through your internet connection are aware of these Terms and comply with them.

NOTICE OF SIMIOCLOUD’S USE OF SERVICE PROVIDERS

The Platform, including Client Data, may be hosted in an environment provided from any location by an established third-party cloud service provider (“CSP”) (e.g., Amazon Web Services (AWS); Google Cloud; Microsoft Azure; Snowflake) that resides in a segmented, secured instance managed by SimioCloud (“Cloud Environment”). Minimum CSP information security, certification, and independent audit standards will include ISO/IEC 27001 and AICPA SSAE 18 SOC 2 Type II / SOC 3 (collectively, “CSP Standards”).

A description and evidence of the CSP Standards will be available at the CSP’s public-facing website. Any terms in these Terms inconsistent with applicable CSP standards or requiring further documentation of the CSP Standards shall not apply to the CSP. Client Data maintained in the Cloud Environment will remain logically segregated from the data of any other SimioCloud clients. Any act or omission of the CSP in providing the Cloud Environment to support the Platform will be deemed an act or omission of SimioCloud, for which SimioCloud will be liable in accordance with these Terms. SimioCloud may also use select subcontractors for the provision of certain components of the Platform, and provide Client Data to such third-party providers for such limited purposes only, provided that the subcontractor has agreed to confidentiality and information security standards with respect to the Client Data that are no less protective of the Client Data than these Terms.

PROPRIETARY RIGHTS RELATED TO THE PLATFORM

The Platform and all of its contents, features, and functionality, including but not limited to code, software programs, processes, creative templates, methodologies, algorithms, software, text, displays, images, video, and audio (and the design, selection, and arrangement thereof) and all related know-how and residual knowledge developed, created, or used by SimioCloud or its agents or third-party licensors in connection with its creation and ongoing maintenance of the Platform and Services, any documentation relating thereto, and any modifications, enhancements, new versions, or derivative works thereof, and all trade secrets, copyrights, patents, and other intellectual and proprietary rights therein, are SimioCloud’s Confidential Information and are owned by and remain the property of SimioCloud or its third-party licensors.

Further, all SimioCloud Data is and will remain, as between SimioCloud and Client, SimioCloud’s proprietary information and the property of SimioCloud and/or its third-party licensors, except as stated in these Terms. In addition, to the extent that Client is permitted to utilize or otherwise have access to any of the data analysis tools, statistical models, or data derived from the use by third parties of the Platform or Services, as may be made available by SimioCloud to Client as part of the Services, Client acknowledges and agrees that any such available features and data are confidential and proprietary to SimioCloud, and the availability to Client and use of same by Client will be subject to, as well as limited to the term of, the Client’s Subscription.

CLIENT PROPRIETARY RIGHTS

All Client Data is owned exclusively by Client and any use thereof by SimioCloud will be pursuant to the license to use Client Data as granted by Client to SimioCloud in these Terms. In addition, any information initially acquired by Client as SimioCloud Data or otherwise was acquired through Client’s use of the Services hereunder including, without limitation, information pertaining to consumers consisting of new customers or donors that Client has acquired through any direct mail, digital and mobile marketing campaigns facilitated by SimioCloud through its provision of the Services and/or SimioCloud Data will not be deemed SimioCloud Data after Client’s acquisition of that consumer as a new customer or donor. Client acknowledges that it will obtain no rights to the SimioCloud Data beyond the use thereof as permitted by these Terms.

TRADEMARKS

SimioCloud’s name, the terms, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates and licensors. Client may not use such marks without the prior written consent of SimioCloud. All other names, logos, product and service names, designs, and slogans on the Platform are the trademarks of their respective owners.

INDEMNIFICATION

General Indemnification Obligations of the Parties. Each Party will indemnify, defend, and hold harmless the other Party and its employees, principals (shareholders or holders of an ownership interest, as the case may be), and agent from and against any losses, damages, costs, expenses (including court costs and reasonable attorneys’ fees), judgments, assessments, fines, and other liabilities arising out of or resulting from claims or suits, or threats thereof, initiated or made by third parties (“Claims”) resulting from such Party’s breach of these Terms.

Notice and Defense of Claims. For a Party to receive the benefit of the foregoing indemnities from the other Party, the Party seeking indemnification (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) in writing of the existence of a Claim. The Indemnified Party, at its discretion, will specify in such notice if the Indemnified Party is tendering to the Indemnifying Party the defense of the Claim or if the Indemnified Party will maintain control of the defense of the Claim. If the Indemnified Party tenders the defense of the Claim to the Indemnifying Party: (A) the Indemnifying Party shall promptly assume control of the defense of such Claim and sole responsibility for all costs associated therewith including, without limitation, defense costs and the cost of funding any judgment or award (as issued by a court or through other dispute resolution proceeding) or any settlement; and (B) the Indemnified Party will thereafter provide the Indemnifying Party reasonable cooperation (at the Indemnifying Party’s expense) in the defense of the Claim. If the Indemnified Party retains control of the defense of the Claim, the Indemnified Party shall control the defense of such Claim and the Indemnifying Party shall pay all such costs of defense and/or any judgment, award or settlement with respect to the Claim within 30 days upon the Indemnifying Party’s receipt of written request(s) therefor from the Indemnified Party.

If the Indemnified Party retains control of the defense of the Claim, the Indemnifying Party will have no obligation to indemnify the Indemnifying Party under any settlement made without the Indemnifying Party’s written consent (which will not be unreasonably withheld). If the Indemnified Party tenders the defense of the Claim to the Indemnifying Party, the Indemnifying Party will not settle the Claim under this section on the Indemnified Party’s behalf without first obtaining the Indemnified Party’s written permission (which will not be unreasonably withheld). Each Party will promptly communicate to the other any offer received by or proposed to be made in settlement of any claim or suit that is subject to indemnification under this section, and each Party will promptly and reasonably consider any such settlement offer or proposal that the other Party desires to accept or make.

LIMITED WARRANTY; LIMITATION OF LIABILITY

Limited Warranties of the Parties. Each Party represents and warrants to the other Party that: (A) it is a duly formed entity (i.e., corporation or limited liability company) in good standing under the laws of the state of its incorporation or organization; (B) it is qualified to transact business in all states where the ownership of its properties or nature of its operations requires such qualification; (C) it has full power and authority to enter into these Terms; and (D) the execution and delivery of these Terms have been duly authorized.

Disclaimer of Warranties. THE WARRANTIES EXPRESSLY MADE ABOVE ARE THE EXCLUSIVE WARRANTIES MADE HEREIN, AND SIMIOCLOUD MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND TO CLIENT OR TO ANY THIRD-PARTY INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE MERCHANTABILITY, SUITABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE), THE AMOUNT OR NET REVENUE GENERATED OR ANY OTHER RESULTS TO BE DERIVED FROM THE USE OF THE PLATFORM AND/OR SERVICES OR THE USE OF ANY OF THE SIMIOCLOUD DATA ACQUIRED BY CLIENT PURSUANT TO THESE TERMS.

Disclaimer of Damages and Limits of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER SIMIOCLOUD NOR ITS SUPPLIERS WILL BE LIABLE TO CLIENT OR TO ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OR "COSTS OF COVER" (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCURING SUBSTITUTE SERVICES) WHICH ARISE OUT OF THE PURCHASE, SALE AND/OR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY OF SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, WHETHER SUCH DAMAGES ARE ASSERTED IN AN ACTION BROUGHT IN CONTRACT, IN TORT OR PURSUANT TO SOME OTHER THEORY AND WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN OR WAS FORESEEABLE. To the fullest extent permitted by laws, excluding SimioCloud’s acts of gross negligence or willful misconduct, Client further acknowledges that SimioCloud’s maximum aggregate liability to Client under any legal theory for damages arising directly or indirectly out Client’s access and use of the Platform and Services in accordance with these Terms will not in any event exceed the actual amount of fees paid by Client to SimioCloud for the 3-month period immediately preceding the date of the event that gave rise to the claim.

GEOGRAPHIC RESTRICTIONS

SimioCloud is based in the United States. We provide the Services, and the website on which the Platform is hosted, for use only by persons located in the United States. We make no claims that the Platform or any of its contents is acceptable or appropriate outside of the United States. Access to the Platform and its contents may not be legal by certain persons or in certain countries. If you access the Platform or the website on which it is hosted or its contents outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

NOTICES

Any notices to be given hereunder to any other Party, including any notice of a change of address, will be in writing and will be deemed validly given if: (A) delivered personally; (B) sent by overnight or second day express delivery service; (C) sent by email to the email address of the receiving Party specified at the time of Subscription activation, which shall be deemed validly given on the next business day after being sent unless the sender receives an automated message that the email has not been delivered; or (D) sent by registered or certified mail, postage prepaid, return receipt requested, to the address specified by a party through the Subscription activation process.

ASSIGNMENT RIGHTS

The Terms, or a Party’s rights and/or obligations hereunder, may not be assigned, transferred, delegated, sold or otherwise disposed of other than as expressly set forth in this section and subject to the limitations set forth herein. These Terms, or a Party’s rights and/or obligations under these Terms, may be assigned, transferred, delegated, sold or otherwise disposed of: (A) in whole or in part by either Party with the prior written consent of the other Party; (B) in whole or in part by SimioCloud to any of its Affiliates; or (C) in its entirety by either Party, in connection with a merger, acquisition, corporate reorganization, the sale of all or substantially all of its assets. Any attempt by a Party to assign any of its rights or obligations under these Terms in breach of this section will be void and of no effect. These Terms will be binding upon and will inure to the benefit of a Party’s permitted successors and assigns.

WAIVER

No waiver of any provision of these Terms will be valid unless it is in writing and signed by the Party making the waiver. Any waiver of a breach or observance of any provision of these Terms will not be construed as a waiver of any subsequent breach.

FORCE MAJEURE

Neither Party will be responsible for any failure to perform (except for payment obligations) due to unforeseen circumstances or to causes beyond its control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, earthquakes, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials or failures of telecommunications or electrical power supplies. A Party whose performance is affected by a force majeure event will be excused from such performance to the extent required by the force majeure event so long as such Party takes all reasonable steps to avoid or remove such causes of nonperformance and immediately continues performance whenever and to the extent such causes are removed. Both Parties will use all reasonable efforts to overcome or work around the force majeure event as soon as reasonably practicable.

GOVERNING LAW AND VENUE

The validity and effect of these Terms will be governed by and construed in accordance with the laws of the State of Colorado without regard to its conflict of laws rules of that State or any other state. All legal proceedings relating to the subject matter of these Terms will be maintained in the state or federal courts sitting in Denver, Colorado and each Party agrees that jurisdiction and venue for any such legal proceedings will lie exclusively with such courts.

TO THE EXTENT NOT PRECLUDED BY APPLICABLE STATE LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THESE TERMS, CLIENT’S SUBSCRIPTION, OR OTHERWISE TO ANY TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF.

SEVERABILITY

If any provision of these Terms will be determined by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the remainder of these Terms, which will be construed as if such invalid or unenforceable provision had never been a part of these Terms but in a manner so as to carry out as nearly as possible the Parties’ original intent.

ENTIRE AGREEMENT

These Terms constitute the full and entire agreement and understanding between the Parties with regard to the subject matter hereof. All prior and contemporaneous agreements, covenants, representations and warranties, express or implied, oral and written, of the Parties with regard to the subject matter of these Terms are superseded by these Terms.

CHANGES AND UPDATES TO THESE TERMS OF SERVICE

The Platform and the Services are evolving. As a result, these Terms may be updated by SimioCloud from time to time upon reasonable notice, which may be provided via Client’s account, email, or by posting an updated version of these terms at: SimioCloud Legal Documents.

DEFINITIONS USED IN THESE TERMS

The following capitalized terms, when used in these Terms, will be used with the meanings ascribed to such terms below:

Account means a Client’s master account for access to the Platform by one or more associated Users and managed by an Account Administrator.

Account Administrator means the User associated with a Client’s Account that has the authority to manage a Client’s Account.

Affiliate means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party, with "control" and its variations meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of the entity in respect of which the determination is being made through the power to vote more than fifty percent (50%) of its voting interest through equity securities or membership units, whether by ownership, contract, voting trust or otherwise.

Client means any entity with an active Subscription.

Client Data means data pertaining to the Client’s donors that Client provides to SimioCloud for SimioCloud’s use as permitted in accordance with these Terms.

Cooperative Database means SimioCloud’s proprietary cooperative database solution from which SimioCloud provides the Cooperative Services to derive the SimioCloud Data.

Cooperative Database Participant means any Client that has authorized the use of that Client’s Client Data in connection with the Cooperative Database in exchange for access to Cooperative Services.

Cooperative Services means those Services of SimioCloud that are provided through the Platform that utilize the Cooperative Database, which are only made available to Cooperative Database Participants.

Data Conversion means the process whereby the license from SimioCloud to Client to use the consumer information included in a Digital Audience or Direct Mail Audience converts to Client’s ownership of the consumer information in accordance with these Terms.

Data Match means the process utilized by SimioCloud that confirms a match exists (based on name and address, email address, or other identifiers) between a consumer’s record in the Client Data and a consumer’s record in the Cooperative Database that has been acquired by SimioCloud from at least one other source.

Data Processing Addendum or DPA means the Data Processing Addendum, located here: Data Processing Addendum, and incorporated herein, which may be amended from time to time as required to ensure compliance with applicable U.S. Consumer Data Protection Law(s).

Digital Audience means an audience of SimioCloud Data generated by SimioCloud and licensed for use in connection with a Digital Campaign.

Digital Campaign means any campaign targeting a Digital Audience through one or more Digital Channels.

Digital Channel means any one or more methods of marketing, for fundraising, advocacy, or other purposes permitted by SimioCloud, to members of the public through digital marketing channels that are authorized by SimioCloud for use of its Digital Audiences pursuant to these Terms, including without limitation pay-per-click advertising, social media marketing, email marketing, influencer marketing, display advertising, mobile/SMS text marketing, and connected television (CTV) marketing.

Digital Data means email addresses and telephone numbers (for SMS test messaging) utilized in the process of deploying, and/or that facilitate the ability to deploy, one or more Digital Campaigns.

Direct Mail Campaign means a campaign that involves the physical delivery of printed mailable materials to designated recipients via the postal service or other similar means.

Direct Mail Audience means a list of consumers’ personally identifiable information, consisting of names and addresses, generated by SimioCloud and licensed for use in connection with a Direct Mail Campaign.

Non-Cooperative Services means those Services of SimioCloud that are provided through the Platform that do not utilize the Cooperative Database.

Online Interaction Data means the data captured following the deployment of a Digital Campaign to a Digital Audience that represents an action taken by a consumer recipient thereof to engage with the Digital Campaign in the form of a “click” or “conversion” of that donor prospect to a digital donor.

Party or Parties means SimioCloud and/or Client, as appropriate in context.

Platform means the SimioAccelerate fundraising audience generation enablement application through which Client will access the Services.

Services means SimioCloud’s data-driven solutions, including but not limited to Cooperative Services and Non-Cooperative Services, that are accessible via the Platform that enable the Client to engage with current and/or prospective donors for fundraising or other mission-critical purposes via Digital Campaigns and/or Direct Mail Campaigns.

SimioCloud means Simio Cloud, LLC.

SimioCloud Data means all data, excluding Client Data, and other deliverables sourced, derived or created by SimioCloud and licensed to Client by SimioCloud pursuant to providing Client any one or more of the Services for Client’s use as permitted by these Terms, including but not limited to the contents of Digital Audiences and Direct Mail Audiences.

Subscription means the authorization granted by SimioCloud to Client to access the Platform and the contents therein, including without limitation the Services, during the Subscription Term.

Subscription Term means the period of time from the date of activation of the Client’s Subscription until the date Client’s subscription is deactivated.

U.S. Data Protection Laws means all enacted consumer data protection laws in the United States, including but not limited to the California Consumer Privacy Act, as amended by the California Privacy Rights Act (collectively, the “CCPA”), the Colorado Privacy Act (“CPA”) and the Virginia Consumer Data Privacy Act (“VCDPA”), as each may be amended from time-to-time.

Users means individuals who are authorized by Client to access the Platform on behalf of and for the benefit of Client with an active Account that enables access to the Platform.