Terms of Service

Updated 15 July 2019

Please read these Terms of Service (“Terms”) carefully as they form a contract by and between SIMSORT, LLC, a Wisconsin limited liability company (referred herein as “We”, “Us”, “Our” or related capitalized terms) and You, Your Affiliates, Users and Residents.

By clicking the “I Accept” button, accessing, downloading or using the Software, You are agreeing to be bound by these Terms.  If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Us that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms, “You”, “Your”, or related capitalized terms used herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not access or use the Software or System.

YOU MUST ACCEPT AND AGREE TO BE BOUND BY ALL OF THE CONDITIONS IN THESE TERMS, INCLUDING YOUR RESPONSIBILITIES, PAYMENT TERMS, PRIVACY POLICY, LIMITATIONS OF LIABILITY, WARRANTY DISCLAIMERS AND OTHER DISCLAIMERS, BEFORE YOU USE THE SIMSORT SITE OR THE SIMSORT SYSTEM.

  1. DESCRIPTION OF PRODUCTS AND SERVICES. We have developed an inventory management system (“System”) which consists of a Computer or Smartphone partnered to a Radio Frequency Identification (RFID) scanner and small RFID labels (also called RFID tags) attached to resident clothing and personal items (hardware herein collectively the “Equipment”), as well as a software web application on the Internet and a software application on the computer or smartphone (collectively the “Software”) to operate the Equipment, which utilize Internet-based services available for a subscription-based fee (“Paid Services”).
  2. LICENSE TERMS. We hereby grant You a limited, non-exclusive, non-transferable license to use the Software and Documentation in object code form solely for use in the Equipment, subject to the conditions of these Terms. You acknowledge and agree that the Software and Documentation is proprietary to Us and that these Terms grant You no title or right of ownership in the Software and Documentation.
  3. YOUR RESPONSIBILITIES.
    1. Administration. Your user accounts are administered through the SimSort customer access portal. You are responsible to assign responsible, authorized individual(s) to administer the Equipment and Software in the access portal. You are responsible for administration of user accounts and access including (i) adding, removing and modifying access for users associated with Your account; (ii) administrator information and access; (iii) billing information including keeping a valid Credit Card(s) or other form of payment accepted by Us (“Method of Payment”) on file; and (iv) resident information including assignment of Resident Software Licenses to Residents created within the Software.
    2. Security. You are responsible for all activity that occurs under Your account, including any activity by unauthorized users. You must safeguard the confidentiality of passwords and login information. If You become aware of any unauthorized access to Your account, You shall notify Us immediately at help@simsort.com. Unless so notified, We assume that any updates, changes, or activities performed in the customer access portal are done so with Your full authorization.
    3. Content. By uploading content (including, but not limited to, photographs, names of residents, names of items and item details) to the Software, You grant Us an unrestricted license to use the content for the purpose of operating the Software within the System. In addition, You represent and warrant to Us that (i) You have all necessary rights to distribute such content, either because You are the author of the content and have the right to distribute the same, or because You have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the content, and (ii) You do not violate the rights of any third party. Further, You hereby indemnify Us for any rights violations which may occur by the act of Us distributing said content within the System on Your behalf.
    4. Tracking of Persons. We do not calculate or record any geolocation data regarding the location of Equipment or identified (scanned) RFID Labels attached to items, or individuals wearing, carrying or using those items. Personal belongings scanned by the System are logged in Our database as having been scanned along with the name of the scanner. Names of the scanners, individuals and items are provided by You. You are responsible for following all applicable laws, regulations and policies regarding tracking of individuals when configuring System identifiers including but not limited to Resident names, Equipment identifiers, etc. Your acceptance of these Terms indicates Your acceptance of this responsibility and your total indemnification of Us related to these laws, regulations and policies.
  4. CHANGES TO THE SOFTWARE AND SYSTEM. We may update the System from time to time and You may receive notifications of such upgrades, enhancements or updates (“Updates”). Any new or modified features added to or augmenting or otherwise modifying the System or other Updates, modifications or enhancements to the System are also subject to these Terms. We reserve the right to deploy Updates at any time. We also retain the right to terminate specific features of the System, the System itself, or services related to the System at any time. We will make good faith effort to provide sixty (60) days’ notice whenever possible of such terminations.
  5. BILLING, PLAN MODIFICATION AND PAYMENTS.
    1. Paid Services. Use of the Software is a Paid Service provided by Us, requiring Your monthly subscription based on the number of Resident Software Licenses (Monthly Subscription) purchased by You. Subscriptions will continue indefinitely until cancelled by You.
    2. Automatic Renewal. To ensure uninterrupted service, recurring Paid Services are automatically renewed. This means that unless You cancel a Paid Service before the end of the applicable subscription period, it will automatically renew, and You authorize Us to use the Method of Payment We have on record to collect the then-applicable subscription fee as well as any Taxes. Paid Services are renewed monthly on the recurring calendar day of the month on which they were originally purchased, or the next calendar day (e.g., monthly purchases made on the 31st will reoccur on the 31st or 1st in the event a month does not have 31 days.)
    3. Management of Licenses. Resident Software Licenses (Monthly Subscription) are managed by You in the customer access portal, including addition of licenses, cancellation of licenses, and assignment of licenses to individual Residents of Your community. Reductions to the number of Resident Software Licenses will be reflected in the next monthly billing cycle. Addition of Resident Software Licenses will be billed immediately to Your Method of Payment on a pro-rated basis that corresponds with Your monthly billing cycle and then be renewed on a monthly basis according to Your subscription provisions.
    4. RFID Labels. RFID labels utilized as part of the System must be purchased through Us. Any RFID labels utilized by You but not purchased through Us are subject to a one-time activation fee of $0.50 per RFID label, which We will automatically bill in the monthly billing cycle immediately following their activation by You.
    5. Taxes. To the extent permitted by law, or unless explicitly stated otherwise, all fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees, or charges now in force or enacted in the future (“Taxes”). You are responsible for payment of all applicable Taxes relating to Your use of Our System, your payments, or your purchases. If We are obligated to pay or collect Taxes on the fees You have paid or will pay, You are responsible for such Taxes, and We may collect payment for such Taxes.
    6. Tax Exemptions. Tax Exempt organizations can provide appropriate documentation within the SimSort Store and customer access portal to have taxes removed from applicable sales. By so providing such information to Us, You certify that You are a Tax Exempt organization. In the event You provide this information to Us but are not Tax Exempt, You accept the responsibility for payment of any Taxes directly to the respective authority. Your acceptance of these Terms constitutes your acknowledgement and acceptance of this responsibility.
    7. Cancellation. You may cancel Your subscriptions for licenses at any time through the customer access portal. In such case, subscription auto-renewal will be cancelled immediately and access to system features will expire at the end of the previously paid billing cycle. See Section 7 for Our Data Retention policies.
    8. Fee Changes. We may increase or decrease fees for any Software subscription effective the first day of a billing renewal by giving You prior notice of at least sixty (60) days. If You do not cancel Your subscription prior to the fee change, You will be deemed to have accepted the new fees.
    9. Payment Failure. If Your payment fails or Paid Services are otherwise not paid for on time, We may immediately cancel or revoke Your access to the Software. If You contact Your bank or credit card company to decline or reverse the charge of fees for Paid Services, We may revoke your access to our System in general, and in this case Our Data Retention policy as stated in Section 7 will not apply.
    10. Refunds. While You may cancel a Paid Service at any time, refunds are issued at our sole discretion, unless otherwise required by applicable law.
  6. DATA PRIVACY AND SECURITY.
    1. Data Security. Our cloud-based database is hosted with a major services provider and We make every attempt to align security settings and standards to the US Department of Health and Human Services’ HIPAA Security Rules for electronic Personal Health Information data. We assume no responsibility for the unauthorized disclosure of protected health care information unless such disclosure is caused by the willful conduct or gross negligence of Us or Our agents, representatives or assigns.
    2. Access of Confidential Information. The data entered or uploaded by You into Our database is regularly available only to You and Your users through Our System. From time to time Our team and assigned agents may access this data, only for the purposes of providing Software support, Software development or System maintenance, or other purposes stated in this Section 6.
    3. Anonymized Data. We reserve the right to generate anonymized data on System use, patterns and behaviors, including the data entered or uploaded by You.
  7. DATA RETENTION. Data for communities that do not have active Paid Services and data for residents that are not assigned to at least one active Resident Software License (Monthly Subscription) will be retained for a minimum of twelve (12) months after de-activation.
  8. WARRANTY.
    1. Limited Equipment Warranty. We warrant to You that for a period of one (1) year after the date of original purchase of the Equipment, the Equipment will be free from defects in materials and workmanship. WE DO NOT WARRANT THAT THE SYSTEM WILL OPERATE WITHOUT INTERRUPTION OR WILL BE ERROR-FREE, OR THAT ALL ERRORS MAY BE CORRECTED. EXCEPT AS SET FORTH IN THIS SECTION 8, OUR SOLE LIABILITY, AND YOUR SOLE REMEDY, FOR BREACH OF THE FOREGOING WARRANTY WILL BE, AT OUR SOLE DISCRETION, REPAIR OR REPLACEMENT OF THE PRODUCT, OR, IF NEITHER OF THE FOREGOING ARE REASONABLY AVAILABLE, A REFUND OF THE AMOUNT YOU PAID, LESS AMOUNTS ATTRIBUTABLE TO YOUR PRIOR USE. Your acceptance of these Terms indicates acceptance of the Limited Equipment Warranty.
    2. Limitations. The foregoing warranty does not extend to problems in the System that result from: (i) Your failure to implement all bug fixes or error corrections to the System which are made available by Us; (ii) any use of the System in a manner for which it was not designed or as not authorized under these Terms; or (iii) any use of the System with other products, hardware or products not supplied by Us, and/or inconsistent with the documentation provided by Us.
    3. RFID Interference and Medical Device Safety. Our System only uses RFID devices in the Ultra High Frequency (UHF) radio spectrum, which to Our knowledge and belief have been tested by third-party laboratories and found to have no interference with pacemakers and implantable cardiac devices (ICDs). WE HAVE NOT TESTED AND DO NOT CERTIFY THESE RESULTS. Further, We are aware and hereby disclose to You that third-party laboratory testing has shown that UHF RFID systems can cause interference with non-implantable Infusion Pumps and AED devices if used within 1.4 meters (~5 feet) of the device. YOU ACCEPT ALL RESPONSIBILITY FOR SYSTEM USE IN ENVIONMENTS WHERE MEDICAL DEVICES ARE PRESENT. More information about RFID and medical devices can be found at the FDA’s web site.
    4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE, WE MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SYSTEM. WE AND OUR SUPPLIERS HEREBY SPECIFICALLY DISCLAIM ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THE IMPLIED CONDITION OF SATISFACTORY QUALITY. EXCEPT AS EXPRESSLY STATED IN SECTION 8.A., THE SYSTEM IS SUPPLIED ON AN “AS IS” BASIS WITHOUT WARRANTY. YOU ASSUME ALL RESPONSIBILITIES FOR SELECTION OF THE SYSTEM TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION AND USE OF THE SYSTEM. Some jurisdictions do not allow a limitation on implied warranties, and so the foregoing disclaimer may not apply to You. In any event, any implied warranties that may exist under the laws of Your jurisdiction are limited to the one (1) year period set forth in the limited warranty given under Section 8.A. above.
  9. LIABILITY.
    1. Limit to Liability. TO THE MAXIMUM EXTENT ALLOWED UNDER LAW, IN NO EVENT WILL WE OR OUR SUPPLIERS BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES, AND INCLUDING BUT NOT LIMITED TO, COST OF COVER, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING FROM THE USE OF (OR INABILITY TO USE) THE SYSTEM, NO MATTER HOW CAUSED AND ON ANY THEORY OF LIABILITY. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
    2. Limit to Damages. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU FOR THE SYSTEM.
  10. INTELLECTUAL PROPERTY RIGHTS.
    1. Ownership. Except for the rights granted to You under Section 2 and this Section 10, all rights, title and interest in and to all Our patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights in or related to the System (collectively, “Intellectual Property Rights”) shall belong to and remain exclusively with Us. We claim no intellectual property rights over the content You upload or provide to the System, excepting those detailed in these Terms.
    2. Your Grant of License to Us. You hereby grant Us a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the System or otherwise use any suggestions, enhancement requests, recommendations, endorsements, ratings, reviews or other feedback We receive from You. You also grant us rights as detailed in Sections 3, 6, and any other rights detailed in these Terms.
  11. AMENDMENTS TO THESE TERMS. We reserve the right, at Our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at Our sole discretion. By continuing to access or use Our System after any revisions become effective, You agree to be bound by the revised Terms. If you do not agree to the new Terms, you are no longer authorized to use the System.
  12. HEADINGS AND WAIVER. The headings used in these Terms are inserted solely for purposes of identifying the various section or subsection contained herein and are for the convenience of the parties hereto. A party’s waiver of any breach or the failure to exercise any of the rights contained within these Terms shall not be deemed a waiver of any subsequent breach or subsequent right to enforce any section or subsection herein.
  13. GOVERNING LAW. These Terms shall be governed by the laws of the State of Wisconsin without reference to principles of conflict of law.
  14. INDEMNIFICATION. You shall, at Your sole expense and cost, release, defend, indemnify and hold Us harmless from and against all liabilities, losses, damages, actions, suits, demands, claims of any kind and nature to the extent such relate to or arise out of the use and application of the System except as otherwise stated herein. To the extent that state or federal law limits the terms and conditions of this Section, it shall be deemed so limited to comply with such state and federal law. Such indemnities shall continue in full force and effect, notwithstanding the expiration or termination of these Terms.

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