This Agreement is made between you and the simPRO entity set out in the Proposal (“simPRO” or. “Licensor”). You are bound by this Agreement from the Acceptance Date. If you do not agree to the terms of this Agreement, do not sign the Proposal. simPRO may modify this Agreement from time to time, subject to the terms set out in clause 18 of this Agreement.
The following definitions will apply to this Agreement:
- “Acceptance Date” means the date the Proposal is signed by you.
- “Account” means the account issued to you by simPRO for you to be able to access the Software, and all users and usernames relating thereto.
- “Additional Training” means any training services provided by simPRO in addition to the Implementation Training.
- “Agreement” means the Proposal, the simPRO Terms and Conditions of Service, Statements of Work and any schedules attached hereto as varied from time to time but shall exclude any changes made to the Agreement by you unless simPRO has expressly agreed otherwise.
- “Authorised Representative” means the Users designated by you in the Proposal who are authorised to create User Accounts, request variations to your Account, administer your use of the Service and otherwise represent you or act on your behalf for the purpose of this Agreement.
“Billing Date” means:
For a Proposal for simPRO IoT:
- If the Commencement Date is on or between the 15th and the end of the month, the 1st of the month; or
- If the Commencement Date is on or between the 1st and the 14th of the month, the 15th of the month;
- For any other Proposal, the Commencement Date.
- “Business Day” means a weekday where trading banks are ordinarily open in the jurisdiction applicable to this Agreement.
- “Cancellation Fee” means thirty percent (30%) of the Initial Investment (excluding any portion attributable to Hardware).
- “Claim” means any claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, Loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort, equity, by operation of law or otherwise and whether involving a third party or a party to this Agreement.
- “Cooling-off Period” means the Cooling-off Period specified in the Proposal.
- “Commencement Date” means the earlier of the first day you have access to the Software or setup of the first Hardware.
- “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that, where permitted by law, the receiving party will promptly inform the providing party of any such requirement in advance and cooperate with any attempt to procure a protective order or similar treatment.
- “Content” means the graphics, text, data, audio, photos, music, sounds, video or similar information or material provided, uploaded or submitted by you or any User to simPRO or the Software in the course of utilising the Software.
- “Hardware” means any computer hardware provided by simPRO including, but not limited to, simTRAC hardware and/or IoT Hardware.
- “Initial Implementation” means any services listed in the Proposal under the heading Training and Implementation in the Initial Investment.
- “Initial Investment” means the sum of all items listed in the Proposal under the heading Initial Investment.
- “Intellectual Property Rights” means any intangible property right provided by law, including but not limited to (i) trademark, trading names, trade dress and service mark rights, (ii) copyrights, (iii) patent rights, (iv) trade secret rights and (vi) design rights.
- “IoT Hardware” means any hardware specified in a Proposal or other document relating to “simPRO IoT”, including but not limited to any and all nodes, sensors, gateways, SIM card, batteries or other hardware required for the operation of the IoT Software.
- “IoT Software” means the software platform known as “simPRO IoT”, modules, tiers, extensions and related mobile application or extensions thereto, including all source code, object code, architecture, designs, functionality, content (excluding your Content), concepts, features, and documentation relating thereto, as well as updates and customisations to any of the foregoing.
- “Losses” means any costs, liabilities, losses, Claims, damages and expenses (including reasonable legal/attorneys’ fees whether incurred or awarded) of any kind or nature whether arising in contract, tort (including but not limited to negligence), equity, by operation of law or otherwise.
- “Ongoing Investment” means the sum of all items listed in the Proposal under the heading Ongoing Investment. For the purposes of simPRO IoT, Ongoing Investment excludes any sensor subscriptions that relate to inactive sensors but includes any sensors that were active at any time.
- “Parameters” means any limit, measure, range, condition or other parameter monitored or capable of monitor by the IoT Hardware.
- “Personnel” means any representative, director, employee, contractor or agent employed, engaged or instructed by a party.
- “Professional Services” means all software consulting and management services, information technology services, customisation services, installation services, Additional Training or other stipulated services provided to you as identified in a Proposal or Statement of Works other than the Support Services.
- “Proposal” means any Proposal and Product Information document entered into between the parties as varied from time to time.
- “Related Entities” has the meaning set out in clauses 21, 22, 23, 23.7(a) and 25 as applicable.
- “Services” means, collectively any and all services provided to you by simPRO including but not limited to services set out in a Proposal, the provision of any Software or Hardware or the supply of Professional Services.
- “Service Level Schedule” means the schedule attached as Schedule A.
- “Software” means the software platform known as “simPRO”, the software platform known as “simPRO IoT”, the software embedded or relating to the Hardware known as “simTRAC”, and including all modules, tiers, extensions, add-ons and related mobile application or extensions thereto, including all source code, object code, architecture, designs, functionality, content (excluding your Content), concepts, features, and documentation related thereto, as well as all updates and customisations to any of the foregoing.
- “Spam” means emails or other form of communication sent to a recipient who has not granted verifiable consent for the message to be sent to them (unless the recipient’s email details were obtained by the sender in the course of the sale or negotiations for the sale of a product or service to that recipient, and the email concerns the sender’s similar products and services only), or who has withdrawn such consent or has otherwise refused the use of their details for direct marketing. For clarity, consent is defined as “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to them”.
- “Special Categories” means the processing of special categories of data as defined in Article 9 of the Regulation (EU) 2016/679 (General Data Protection Regulation) and includes any category of data which is sensitive in nature.
- “Statement of Work” or “SOW” means a written description of Professional Services only to be performed by simPRO under this Agreement, which shall specify as applicable, the fees associated with the work and other responsibilities of the parties. Each SOW shall remain in effect until terminated in accordance with this Agreement and/or the terms of the SOW.
- “Support Services” means the support services further identified in Schedule B.
- “Term” means the length of this Agreement as specified in the Proposal or as renewed or amended from time to time.
- “Upfront Payment” means the Upfront Payment specified in the Proposal.
- “User” means any individual expressly permitted by you in connection with your business or use of the Service who are authorised to use the Service and have been supplied with access to the Services by you (or by simPRO at your request).
- “User Account” means an individual username and password account issued to you under your Account.
- “Workflow” means any process or sequence of events caused by a breach of the Parameters.
- “You”, “you”, “Your” or “your” means the legal entity or individual specified in the Proposal entering into this Agreement in their own right or on behalf of an entity as described in the Proposal.
- “Your Data” means any information or data collected by simPRO or provided or submitted by you or any User in the course of utilising the Services.
A reference to:
- Legislation (including subordinate legislation) is to that legislation as amended re-enacted or replaced, and includes any subordinate legislation issued under it;
- A deed or agreement, or a provision of a deed or agreement, is to that deed, agreement or provision as amended, supplemented, replaced or novated;
- A person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and
- Anything (including a right, obligation or concept) includes each part of it; and
- A singular word includes the plural, and vice versa.
- License. Subject to payment in full of the fees due to simPRO and compliance with this Agreement, simPRO grants you during the Term, for the number of Users specified in the Proposal, a non-transferable, non-exclusive license, without right to sublicense, to access and use the Software and Software functionalities identified in the Proposal, as hosted by simPRO.
- Software Upgrades and Modifications. You agree that simPRO may update, upgrade or modify the Software, at any time, including the removal or modification of previously available functionality; provided, however, that any such updates, upgrades, enhancements and/or modifications shall not materially reduce the functionality of the Software. Subject to the foregoing, unless separately identified as having additional terms, any updates, upgrades, enhancements and/ or modifications provided to the Software will automatically be considered part of the Software and will be subject to the terms of this Agreement.
This clause 5 applies if the Services include the provision of Hardware:
- Subject to payment in full of the fees due to simPRO for the Hardware as set out in the Proposal and compliance with this Agreement, simPRO agrees to sell you the Hardware in accordance with the Proposal.
You agree that:
- Upon delivery of the Hardware pursuant to clause 5.3, ownership and risk of loss or damage to the Hardware shall pass to you.
Without limiting simPRO’s rights under this Agreement, simPRO is not liable for:
- Any defective or malfunctioning Hardware; or
- Hardware not installed in accordance with any manufacturer directions.
- If the Hardware purchased becomes defective or is recalled by the manufacturer, you must notify simPRO in writing within ten (10) Business Days. If the Hardware can be returned and if requested by simPRO, you must return the Hardware to simPRO at your cost and cooperate with simPRO and the manufacturer (as applicable) to arrange for a replacement or remedy of the defect, unless otherwise instructed by simPRO.
- Refund: Notwithstanding anything else in this Agreement, you acknowledge that the cost for and any costs related to the Hardware are non-refundable. simPRO may, at simPRO’s sole discretion, elect to refund you the cost of any Hardware, where you have terminated this Agreement during your Cooling-off Period, provided that the Hardware has not been dispatched by simPRO prior to the termination.
- Delivery: Subject to payment of the Initial Investment in accordance with the Proposal and satisfaction of any other matter required in a Proposal or required by simPRO, simPRO will deliver the Hardware to the address identified in your Proposal or any other location that is agreed between the parties. The Hardware shall be deemed to have been delivered in good working order and in accordance with this Agreement unless you notify simPRO to the contrary within three (3) Business Days of delivery.
- You and Your Personnel are responsible for unpacking, inspecting for defects, and installing and configuring the Hardware in accordance with any instructions provided to you and in a professional and workmanlike manner.
If the Hardware includes IoT Hardware, you acknowledge you are responsible for:
- Investigating, selecting, setting up and updating the Parameters and Workflow in accordance with the IoT Hardware specifications and simPRO IoT capability; and
- Providing simPRO no less than five (5) Business Days’ notice of your selection of or desired change to the Parameters in the form required by simPRO from time to time.
Your Obligations: In addition to any other obligations under this Agreement, with respect to the Hardware you agree to:
- Maintain and service the Hardware entirely at your own cost and strictly in accordance with the requirements and recommendations of simPRO and the manufacturer;
- Not attempt to alter, adapt, tamper, reverse engineer or make any addition to the Hardware or the Software;
- Use the Hardware in accordance with any Hardware specifications, instructions, directions, guidelines or manuals provided by simPRO (as applicable) or the manufacturer;
- Providing any information reasonably requested by simPRO, including in relation to installation, operation, inspections, servicing or defects; and
- Comply at your own cost with all applicable laws relating to the use of the Hardware, including obtaining and maintaining any licenses, permits, authorities or registrations required.
- Availability. Unless you have subscribed to the Service Level Schedule set out in the Proposal, you acknowledge that simPRO will, subject to planned downtime make reasonable efforts to ensure that the Software is generally available; however, simPRO does not guarantee, represent or warrant that access to the Software will be uninterrupted or error-free. simPRO does not guarantee that you will be able to access or use all of the Software’s features at all times. simPRO will make reasonable efforts to notify you of system outages and scheduled downtime.
- Service Level Schedule: If you have subscribed to the Service Level Schedule, as indicated in your Proposal, and paid the associated fees, simPRO will make commercial best efforts to ensure that the Software is available in accordance with the terms of the Service Level Schedule. Your sole remedy for any failure to provide the Software in accordance with the Service Level Schedule shall be the service credits identified therein.
Suspension of Services: simPRO may suspend or interrupt the Services, in whole or in part, if:
- You or any Users are using the Services in breach of this Agreement or in breach of the law;
- Your system, your Account, User Accounts or Hardware has been compromised or unlawfully accessed;
- Suspension of the Services is necessary to protect the infrastructure of simPRO or its affiliates, or is necessary to protect simPRO’s other customers;
- Suspension is required under the law or necessary to protect simPRO’s rights; and
- If you fail to pay the fees applicable under this Agreement when due and you have not remedied the failure within fifteen (15) Business Days after receiving notification in writing.
Passwords and Access.
- simPRO shall issue you User Accounts for the Software in accordance with the number of Users specified in the Proposal.
- Other than access by simPRO, you must use reasonable efforts to restrict unauthorised individuals and entities access to your Account or any User Accounts.
You are responsible for:
- All activities that occur under your Account; and
- Maintaining the security and confidentiality of all your Account usernames and passwords. You must notify simPRO promptly of any unauthorised use of your Account or any other known or suspected breach of security of which you become aware.
- Software Ownership: The Licensor retains all right, title and interest in and to the Software, and all Intellectual Property Rights related thereto. Title to and ownership of any modifications, upgrades, updates or customisations of the Software from any source shall be held exclusively by simPRO.
- Subject to clause 7.1, you grant simPRO an exclusive, worldwide, royalty-free and irrevocable licence to make, use, sell, reproduce, modify, sublicense, disclose, distribute and otherwise exploit error reports, corrections, and suggestions provided by you concerning the Hardware or Software and modifications based thereon or incorporated therein, which may include new functional features.
- Hardware Ownership: You acknowledge that you have no right, title and interest in and to the Intellectual Property Rights in the Hardware, including any and all modifications, upgrades, updates or customisations from any source.
- Content. Your Content is and shall remain your property or the property of the applicable third party. You grant simPRO a non-exclusive, worldwide, royalty-free and irrevocable license to use, reproduce, modify and prepare derivative works of your Content for the Term of this Agreement solely in connection with the provision of the Services.
- You agree to perform such acts, and execute and deliver such instruments and documents, and do all other things as may be reasonably necessary to evidence or perfect the rights of simPRO set forth in this clause 7.
If you have subscribed to the Support Services, as indicated in your Proposal, and paid the associated fees, simPRO will make commercial best efforts to provide the Support Services in accordance with this Agreement.
- For the purposes of this clause, “Implementation Training” means any items listed under the Training and Implementation section of your Initial Investment.
- The relevant fees for the Implementation Training will be set out under the Training and Implementation section of your Initial Investment.
- You acknowledge that any and all unused Implementation Training expires twelve (12) months from the Acceptance Date. If you require further training, you must contact simPRO to purchase Additional Training.
- Notwithstanding anything else in this Agreement, you acknowledge that a minimum of five (5) Business Days’ notice is required to change or cancel any training scheduled with simPRO. If less than five (5) Business Days’ is given, you will incur the full costs of the relevant training days plus any non-refundable out of pocket expenses, such as travel costs and disbursements that simPRO has incurred.
- If you or your Authorised Representative request Professional Services, simPRO shall issue a Statement of Works covering such Professional Services.
- Unless stated otherwise in an applicable SOW, any estimates of time provided in connection with deliverables or Services, are good faith projections, but are not guarantees. Unless otherwise agreed to by the parties in writing, in the event that simPRO provides Professional Services on a “time and materials” rate basis, simPRO shall charge you at simPRO’s standard rates then in effect. In the event that simPRO provides Professional Services hereunder on a “fixed fee” rate basis, such fixed fee will cover only the specific tasks, expenses, and deliverables that the Statement of Work defines as included within the fixed fee. Unless otherwise agreed to by the parties in writing, any and all deliverables that you request that fall outside the Statement of Work or are otherwise not expressly included within such fixed fee payment schedule will be provided on a time and materials basis at simPRO’s standard rates then in effect.
- You shall pay simPRO for the Professional Services in accordance with the payment terms set forth in the applicable Statement of Work. Subject to the Statement of Works, simPRO shall invoice you for all such fees when due, which shall be paid by you within thirty (30) days of receipt.
- simPRO shall be entitled to reimbursement for all documented, reasonable, out-of-pocket expenses incurred in connection with the provision of Professional Services to you under this Agreement, including, without limitation, travel, lodging, meals and transportation. simPRO shall provide estimates of such expenses in each SOW. Such expenses are to be invoiced to you as they are issued and are to be paid by you as set out in the invoice. Any expenses in excess of five hundred dollars ($500.00) shall require your pre-approval.
Unless otherwise indicated therein, all SOW may be terminated by either party:
- If the other party breaches a material term of the SOW or this Agreement and such breach is not remedied within fifteen (15) Business Days’ notice; or
- At any time for any reason.
- In consideration of the parties’ rights to terminate a SOW at any time, the parties agree that simPRO will not be liable for any Losses incurred or suffered by you or any other person as a result of either parties’ termination of a SOW in accordance with clause 10.5(b).
- Upon termination of a SOW for any reason, without limitation to any other rights at law or equity, simPRO shall cease all work being performed thereunder and issue you with a final invoice. Termination of a SOW shall not eliminate your obligation to pay for time, expenses or deliverables incurred or performed prior to termination. In the event that you terminate a fixed fee SOW before deliverables are completed but after they have been commenced by simPRO, such SOW shall be converted to a time-and-materials SOW for such commenced but incomplete deliverables, and simPRO shall invoice you for the reasonable time incurred in connection with such incomplete deliverables.
- You are authorised to permit Users access to the Software via a User Account up to the number of Users identified in the Proposal as amended from time to time.
You understand and agree that:
You and your Users are not permitted to distribute, upload, transmit, store, make available or otherwise publish or process through the Software, Content that:
- Is unlawful or encourages another to engage in anything unlawful;
- Contains a virus or any other similar programs or software which may damage the operation of simPRO’s or another’s computer;
- Violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party;
- Is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying.
- You understand and agree that simPRO reserves the right to edit, modify or remove content being hosted by simPRO, including for violations of the above standards.
- Your Users may only use the Software and Hardware in accordance with applicable law.
- The Software may place phone calls and text messages, which may incur fees with your carrier or your User’s carriers. You agree that simPRO is not responsible for such fees.
- Certain aspects of the Software and Hardware may permit tracking of individuals and items. It is your sole responsibility to alert individuals interacting with, using or being tracked by the Software and/ or Hardware of such abilities. You must comply with all applicable laws relating to such notifications.
- The Hardware will require certain third party services in order to operate. You will conduct your own enquiries into the extent of third party services and their suitability to support the operation of the Hardware. You agree that simPRO is not responsible for any lack of or interruption in the third party services or for any fees associated with the third party services.
- You must not sublicense, resell or supply the Software for use in, or for the benefit of, any other organisation, entity, business, or enterprise without simPRO’s prior written consent or unless authorised under this Agreement.
- Initial Investment Payment: If there is an Upfront Payment, then upon acceptance of the Proposal you will be issued with an invoice for the Upfront Payment. The Upfront Payment is payable on the Acceptance Date. If any further amount is payable for the Initial Investment, the amount must be paid as set out in the Proposal.
- Ongoing Investment: If there is an Ongoing Investment, then you must pay the Ongoing Investment amount on or before the Billing Date and subsequently on or before the monthly anniversary of the Billing Date. You acknowledge that the Ongoing Investment is a monthly fee and must be paid in advance at all times.
- Other Fees: You agree to pay all fees for the provision of the Services and/or Hardware as set out in the Proposal, in the manner identified in the Proposal and for the duration of the Term. If Statements of Work are executed, you shall pay the fees in the Statements of Work at the times identified therein. If no time is identified in a Proposal or Statement of Work, fees will be payable within thirty (30) days of receipt of an invoice from simPRO for said fees. Fees are exclusive of applicable tax, which shall be your responsibility.
- Set-off: You acknowledge that all payments to be made by you under this Agreement must be made without deduction or set-off unless otherwise expressly agreed in writing by simPRO. simPRO may, in simPRO’s sole discretion, deduct and set-off any amount owing or that may become owing from you to simPRO, whether in relation to this Agreement or otherwise, from any amount that simPRO owes to you from time to time.
- simPRO may use a third-party payment processor (“Payment Processor”) to charge you through an online account for use of the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. simPRO is not responsible for error by the Payment Processor.
- You agree to pay simPRO, through the Payment Processor, all fees and charges owed to simPRO associated with the Services. You authorise simPRO, through the Payment Processor, to charge the fees and charges (including any recurring fees and charges) to your chosen payment provider or method (“Payment Method”).
- If your allocated Payment Method is rejected or is declined for insufficient funds you agree that simPRO may pass on the costs of any charges or fees levied by your chosen payment provider in your next payment to simPRO.
- SIMPRO MAY SUBMIT PERIODIC CHARGES WITHOUT YOUR FURTHER AUTHORISATION, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY SIMPRO) THAT YOU HAVE TERMINATED THIS AUTHORISATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE SIMPRO REASONABLY COULD ACT.
- Unless specified in an invoice, amounts due are exclusive of all applicable taxes, levies, or duties, and you will be responsible for payment of all such amounts. If you believe that any specific charge under this Agreement is incorrect, you must contact simPRO in writing within thirty (30) days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final.
- Your account will be considered delinquent (in arrears) if payment in full is not successful when a charge is initiated. In addition to other applicable remedies, simPRO reserves the right to suspend and/or terminate your access to the Services and/or terminate this Agreement if your Payment Method is declined or fails, and your account therefore is delinquent. Charges to delinquent accounts are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable legal/attorneys’ fees and court costs.
- Responsibility for Your Data: You acknowledge that the Software is an operations management tool only and is not a backup system. Although simPRO may provide you with copies of your Data from time to time, you understand that it is your responsibility to back up your Data in the manner and at intervals of your own choosing and that simPRO is not responsible for storing your Data. simPRO does not have an obligation or liability with respect to the deletion of, corruption, or failure to, maintain copies or backups of your Data.
- Ownership of Data: To the extent permitted by law, your Data will remain your property or, the sole property of such Users or their licensors, as applicable. Subject to this Agreement, you grant to simPRO a non-exclusive license to use, copy, store, transmit and display your Data to the extent necessary to provide and maintain the Software and to provide services to you and your Users.
Privacy: You agree that:
- simPRO may monitor you and your User’s use of the Software and may collect and use data and related information, including but not limited to information about you and your User’s use of the Software, which may be gathered periodically to ensure compliance with this Agreement, to study and improve the Software, to facilitate the provision of updates, product support and to provide the services under this Agreement. Aggregated statistical data will be the property of simPRO. Furthermore, simPRO may communicate with you and your Users regarding the Software and its functions, and for other requirements of simPRO.
- You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of any data to simPRO for the duration and purposes of this Agreement.
- You will not use simPRO’s Services to store any Special Category of personal data and acknowledge that simPRO will not be liable under this Agreement for any data that may be stored without simPRO’s express written consent that is classified as Special Category data.
- Any collection of your Data or a User’s data by simPRO shall be collected in accordance with simPRO’s Personal Data Protection Policy (as amended from time to time), which you agree forms part of this Agreement. A copy of simPRO’s Personal Data Protection Policy can be found at www.simprogroup.com or provided on request.
- Nothing in this Agreement prevents simPRO from disclosing your Data to the extent required by law such us if required by subpoena or court order.
- You warrant that you will not utilise your User Account or, the Software to send marketing emails and/or other forms of marketing communication to Users or Third Parties either representing you or simPRO and our Services without their express consent. Consent must be given in accordance with relevant and applicable law.
- You must provide proper evidence of your compliance with clause 14.4(a) at our request. If you cannot provide such evidence or, we find any evidence of Spam activity on your Account, we may suspend the provision of any Services and your User Accounts pending further investigation.
- In the event of Spam activity being confirmed, simPRO may terminate this Agreement, your Account, the provision of any Services and your User Accounts at simPRO’s discretion. If simPRO terminates this Agreement in accordance with this clause 14.4, you will forfeit all payments, credits or rights to receive the Services under this Agreement and we shall have no further liability to you.
You acknowledge that:
- You will be required to use third party products and/or services in support of the Services under this Agreement (“Third Party Services”).
- The Third Party Services are not provided by simPRO and simPRO provides no warranty and accepts no liability in relation to Third Party Services.
- Any referral for Third Party Services that may be made by simPRO is provided for your convenience only and shall not constitute any warranty or guarantee of any kind from simPRO.
- The Third Party Services may be subject to additional terms and conditions.
When simPRO indemnifies you:
THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
- simPRO will defend, indemnify, and hold you and your Personnel harmless from and against all Losses arising from any third party suit, action, or proceeding arising from the actual or alleged infringement of any copyright, patent, trademark, or misappropriation of a trade secret by the Hardware or Software (other than in connection with your Content, your Data, the Hardware or any modifications or alterations of the Hardware or Software) (“Infringement Action”).
- In case of an Infringement Action, simPRO may, in its discretion, procure a license that will protect you against the Infringement Action without cost, replace the Software or Hardware with non-infringing versions, or if it deems such remedies not practicable, simPRO may terminate this Agreement without incurring any liability.
- If simPRO terminates this Agreement in accordance with this subclause 16.1(a), you will receive a pro-rata refund of licence fees prepaid prior to the date of termination. You will not be entitled to any refund for a period in which you have received the Services in accordance with this Agreement.
When you indemnify simPRO: To the extent permitted by law, you will compensate, reimburse and indemnify simPRO, simPRO’s Personnel and simPRO’s Related Entities from and against all Losses, howsoever arising, that simPRO, simPRO’s Personnel and simPRO’s Related Entities incur or may suffer or incur in connection with any Claim:
- Alleging that your Data, your Content or other data or information supplied by you or your Personnel infringes the Intellectual Property Rights or other rights of a third party or has caused harm to a third party;
- Relating to your breach or alleged breach of this Agreement or any applicable law;
- Arising out of your or your Personnel’s act, omission, negligence or intentional misconduct;
- Arising out of Claims relating to use of your Account or you or your Users’ use of the Services; or
- Arising out of Claims relating to liability excluded, waived, assumed or acknowledged as the Client’s responsibility in this Agreement.
- At simPRO’s sole discretion, simPRO may elect to require you to undertake any action or be directly responsible for any amount that is or will be your responsibility under clause 16.1(b) before simPRO undertakes or is required to undertake the action or pays or is required to pay the amount. The parties expressly agree that any selection made under this clause 16.1(c) does not prejudice simPRO’s rights under this Agreement or at law, including any right to recover any amount payable by you under this Agreement as a debt payable on demand.
- In case of any Claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim.
- The Indemnitor will defend and/or settle, at its own expense, the Claim, subject to indemnification under this Agreement.
- Each party will cooperate in good faith with the other to facilitate the defence of any such Claim and will tender the defence and settlement of any action or proceeding covered by this clause to the Indemnitor upon request.
- Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability or the Indemnitee is simPRO.
Disclaimers and Limitations
- TO THE EXTENT PERMITTED BY LAW AND THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE, HARDWARE AND ALL SERVICES SUPPLIED BY SIMPRO ARE PROVIDED “AS IS”, WITHOUT ANY FURTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED. YOU ASSUME ALL RESPONSIBILITY FOR EXERCISING INDEPENDENT JUDGEMENT IN DETERMINING WHETHER THE SOFTWARE, HARDWARE OR THE MATERIALS GENERATED THEREBY ARE ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. SIMPRO DOES NOT WARRANT OR GUARANTEE THAT USE OF THE SOFTWARE OR HARDWARE WILL BE FREE FROM DEFECTS, ERROR-FREE OR UNINTERRUPTED OR THAT CONTENT LOSS WILL NOT OCCUR.
- TO THE EXTENT PERMITTED BY LAW, SIMPRO IS NOT LIABLE FOR ANY LOSSES OR CLAIMS WHETHER ARISING IN CONTRACT, TORT, EQUITY, BY OPERATION OF LAW OR OTHERWISE ARISING OUT OF THIS AGREEMENT OR THE SERVICES EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
Hardware, Testing and Third Party Services: You acknowledge that: simPRO has partnered with third parties to provide the Hardware and relies on you and Third Party Services for the Software to operate. Subject to your obligations to indemnify simPRO and this clause 16.2 and to the extent permitted by law, simPRO, simPRO’s Personnel and simPRO’s Related Entities will not be liable to you or any third party for any Losses, including but not limited to, any Losses arising out of:
- The Hardware in any way;
- Your installation, testing or lack of testing of the Hardware;
- The selection, setup and update of the Parameters and Workflows;
- Your failure to follow simPRO’s reasonable directions;
- Any lack or interruption of signal, power, internet or other Third Party Service howsoever arising,
except where the sole and direct cause of the Loss is a defect in the Software.
- Parameters and Workflows: simPRO may provide you or make available for your information, documentation relating to the available or potential Parameters or Workflows for general or specific scenarios. This documentation is for your information only and cannot be relied upon for the identification of the suitable Parameters and Workflows in your individual circumstances. simPRO relies on you to select your chosen Parameters and Workflows based on your own investigations and to ensure that the Parameters and Workflows are setup and maintained as you require. simPRO, simPRO’s Personnel and simPRO’s Related Entities will not be liable to you or any third party for any Losses in any way relating to the selection, setup or update of the Parameters and Workflows. simPRO may also provide Services to you to assist in the setting up of the Parameters and Workflows. You acknowledge that these Services do not remove your liability for monitoring and ensuring the correct selection, setup or update of the Parameters and Workflows in accordance with your needs from time to time.
Total Aggregate Liability: In no event will simPRO’s aggregate liability (including, to the extent permitted by law. liability for direct Losses) exceed the lesser of:
- The Ongoing Investment due for the twelve (12) month period measured by the monthly payment obligation at the time of the event or circumstance giving rise to the Claim; and
- The Ongoing Investment paid by you prior to the time of the event or circumstance giving rise to the Claim.
- Consequential Damages: In no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, earnings, revenue, profits, goodwill, use or other economic advantage, financial penalties imposed by any government or agency or any other indirect or consequential loss arising from or in relation to this Agreement). This clause will continue to apply notwithstanding termination of this Agreement by either party.
- Neither party will use the other party’s Confidential Information except already provided for in this Agreement and as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its Personnel or advisors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder or to assist a party in meeting its legal obligations. The confidentiality obligations set forth in this clause 17 will survive for as long as applicable information meets the definition of Confidential Information.
Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either:
- Return all Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or
- Destroy all Confidential Information and all copies thereof in the receiving party’s possession or control.
Notwithstanding the foregoing, nothing herein shall require a party to remove or delete the other party’s Confidential Information from its long-term backup storage, provided that any such retained information shall remain subject to the confidentiality obligations of this Agreement.
- Where a party is required to disclose Confidential Information pursuant to any legal process, that party will, where permitted by law, give prompt notice to the other party, if legally permissible, to enable the disclosing party to challenge such demand.
- Variations to Fees: simPRO may change your current fees and charges at any time by providing notice in accordance with clause 18.3.
Variations to Services: If your Proposal includes a month to month license, then this clause 18.2 applies to you:
- You or your Authorised Representative may request a variation to your Agreement to add or decrease Users or Hardware at any time by submitting a request through your Account.
- If you upgrade your subscription in any way by adding Users or Hardware, you will be charged the fees for your upgraded subscription from the next Billing Date following the date simPRO provides you with access to the upgraded subscription.
- If you downgrade your subscription by reducing Users or Hardware, you will be charged the fees for your downgraded subscription from the date of the next monthly anniversary of the Billing Date immediately following the date the downgrade becomes effective.
- Any charges incurred prior to the date of the downgrade is effective are non-refundable and you are not be entitled to any pro-rata refund or credit to your Account.
- Variations to this Agreement: simPRO may make any changes to this Agreement or simPRO’s policies at simPRO’s sole discretion by written notice. If we reasonably expect the change to have a detrimental impact on you, we will give you thirty (30) days’ notice in writing of the change. If you do not agree to the change, you may terminate this Agreement within thirty (30) days of the date of our notice in writing.
Date of Variation: Any variation to this Agreement or simPRO’s policies will be deemed effective and binding upon you:
- From the date of notice; or
- If we expect the variation to have a detrimental impact on you, from expiry of the notice period, provided you have not otherwise exercised your right to terminate this Agreement in accordance with clause 18.3.
- Cooling-off Period: This subclause 19.1 applies if a Cooling-off Period is provided for in your Proposal. If you elect to terminate this Agreement during the Cooling-off Period, you must provide simPRO with written notice of your election prior to the conclusion of the Cooling-off Period. Subject to this Agreement, if written notice is received within this timeframe, any amount paid by you to simPRO for the Services will be refunded to you. You acknowledge that the purpose of the Cooling-off Period is to for you to confirm that the Services and Hardware are satisfactory to your needs.
- Cancellation Fee: If you elect to terminate this Agreement at any time after the conclusion of the Cooling-off Period and prior to the Commencement Date, simPRO is entitled to withhold the Cancellation Fee and any non-refundable expenses reasonably incurred by simPRO in relation to Initial Implementation. You acknowledge that the Cancellation Fee is withheld in consideration for Services rendered prior to the date of termination. If this Agreement is terminated at any time on or after the Commencement Date, simPRO is entitled to withhold the full Initial Investment. This clause in no way limits simPRO’s rights or remedies whether under this Agreement or any law or the non-refundability of any Hardware.
- Fixed Term: This subclause applies if the Term identified in the Proposal is for any period other than Monthly. Your rights to the Software commence on the Commencement Date and will continue until the expiry of the Term (“Expiry Date”). Either party may terminate any time, however you must provide simPRO with at least ten (10) Business Days written notice of the termination. You acknowledge that if you terminate this Agreement or if this Agreement is terminated due to your breach, then you must pay out the duration of your Term up to the Expiry Date immediately upon simPRO’s request. Unless notice in writing is provided otherwise, on expiry of the Term, the Term will be converted to a Monthly Term and clause 19.4 of this Agreement shall apply.
- Monthly Term: This subclause applies if the Term identified in the Proposal is Monthly. Your rights to the Software commence on the Commencement Date and will continue on a month to month basis until terminated by either party. Either party may terminate at any time however, you must provide simPRO with at least ten (10) Business Days written notice of the termination. On termination by either party, you will continue to have access to the Software and be liable for the fees until the next monthly anniversary of the Billing Date following expiry of the notice period. To the extent permitted by law, payments are not uable and simPRO does not provide refunds or credits for any partial subscription periods.
Termination for Variation: If this Agreement is terminated in accordance with clause 18.3, you must give us notice in writing of the termination. You will continue to have access to the Software and be liable for the fees until the second monthly anniversary of the Billing Date following expiry of the notice period in clause 18.3. You must pay:
- Any fees or charges incurred up to the date on which your termination takes effect; and
- Any outstanding amounts owed to simPRO under this Agreement.
- Termination for Breach: simPRO, in its sole discretion, may suspend or terminate usernames and passwords, accounts, use of the Software and/or terminate this Agreement if you materially breach this Agreement and, if the breach is remediable, such breach has not been remedied within fifteen (15) Business Days of providing you with written notice of such breach.
- Survival: Any clause capable of surviving termination or expiration of this Agreement, shall survive such termination or expiration. Such clauses include, but are not limited to clauses 7, 14, 16, 17, 19, 20, 21, 22, 23, 24, 25, and 26.
- If any dispute, controversy or Claim arising out of or in relation to this Agreement, including with regard to the Agreement’s existence, validity or termination, arises then you and simPRO agree to notify each other of the details of each matter in dispute, any amount claimed and the full details of the reasons why each matter is disputed (“Dispute Notice”).
- If the dispute involves an error in the Services, simPRO shall attempt to identify and correct the error in accordance with this Agreement.
- If the dispute cannot be resolved to the satisfaction of either party within sixty (60) days, then a director from each party (or other senior representative of the parties with authority to settle the dispute) will, within ten (10) Business Days of a written request from one party to the other, meet in a good faith effort to resolve the dispute (“Meeting Request Notice”).
- If the dispute is not resolved at that meeting, the parties agree to enter into mediation in good faith to settle the dispute and will do so in accordance with the Mediation Procedure in force at the time of the dispute. To initiate the mediation a party must give notice in writing to the other party to the dispute, referring the dispute to mediation (“Mediation Notice”). A copy of the referral should be sent to the Mediation Institution for your residence.
- Unless otherwise agreed between the parties within ten (10) Business Days of receipt of the Mediation Notice, the mediator will be nominated by the Mediation Institution. Each party shall pay an equal share of the mediator’s fees, costs and expenses.
- If there is any point on the logistical arrangements of the mediation, other than the nomination of the mediator, upon which the parties cannot agree within ten (10) Business Days from receipt of the Mediation Notice, where appropriate, in conjunction with the mediator, the Mediation Institution will be requested to decide that point for the parties.
- Unless otherwise agreed, the mediation will start not later than twenty (20) Business Days from receipt of the Mediation Notice. If the dispute is settled, the parties must sign a copy of the terms of settlement.
In the event that a dispute has not settled within ten (10) Business Days after the mediator has been appointed, or such other period as agreed to in writing between the parties, the dispute shall be referred to final and binding arbitration in accordance with the following:
- The arbitration shall be administered by the Arbitration Institution and will be conducted in accordance with the Arbitration Procedure in force at the time of the dispute, as modified by this clause 20.
- The number of arbitrators shall be one (1). The arbitrator shall not be the same person as the mediator unless the parties each consent in writing to the arbitrator so acting.
- The language of the arbitration shall be English.
- You and simPRO agree that any error, dispute or proceedings, transcripts, statements, documents, discovery, correspondence or any and all other non-public information related to the error or dispute shall be treated as confidential in accordance with clause 17.
- Nothing in this Agreement shall prevent a party from seeking urgent injunctive relief from the courts in the place of your residence.
- Pending resolution of a dispute, the parties shall continue to perform their respective obligations under this Agreement.
- General: If you reside within Australia, the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
- “Related Entities” has the meaning set out in the Corporations Act 2001 (Cth).
Disclaimers and Limitations:
- Nothing in this Agreement shall exclude any condition, representation, warranty, guarantee or liability that cannot be excluded as a matter of law, including but not limited to those contained in the Australian Consumer Law to the extent that they apply.
simPRO’s liability arising from the breach of any condition, representation, warranty or guarantee shall at simPRO’s discretion, be limited to and completely discharged by any one or more of the following:
If the liability relates to the supply of goods:
- The replacement of the goods or the supply of equivalent goods;
- The repair of the goods;
- The payment of the cost of replacing the goods or of acquiring equivalent goods; or
- The payment of the cost of having the goods repaired;
If the liability relates to the supply of services:
- The supplying of the services again; or
- The payment of the cost of having the services supplied again.
- Any mediation shall be administered by the Australian Disputes Centre (“Mediation Institution”).
- Any mediation shall be in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation (“Mediation Procedure”).
- Any arbitration shall be administered by the Australian Centre for International Commercial Arbitration (“Arbitration Institution”).
- Any arbitration shall be in accordance with the ACICA Expedited Arbitration Rules (“Arbitration Procedure”).
- The seat of arbitration shall be Queensland, Australia.
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of Queensland, Australia and subject to this Agreement, the parties agree to submit to the exclusive jurisdiction of the courts of that State.
- All electronic notices must be provided to simPRO by email at firstname.lastname@example.org.
- All other notices must be addressed and provided to simPRO at 31 McKechnie Drive, Eight Mile Plains, Queensland, 4113, Australia.
- General: If you reside in the United States of America, the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
- “Related Entities” means with respect to the applicable party, any corporation, company, partnership, trust, sole proprietorship or other entity or individual (each, an "Entity") which: (a) is owned or controlled by such party; (b) owns or controls such party; or (c) is under common ownership or control with such party. "Own" means ownership of more than fifty percent of the voting securities, membership interest or other interest in the Entity, either directly or through a subsidiary relationship. "Control" means the power to manage or direct the affairs of the Entity, either directly or through a subsidiary or contractual relationship.
Compliance with Export Laws:
- Each party shall not use, export or re-export without compliance with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software and Hardware including, without limitation, the International Traffic In Arms Regulations (“ITAR”) (22 C.F.R. parts 120-130 (2010)); the Export Administration Regulations (“EAR”) (15 C.F.R. parts 730-774 (2010)); the U.S. anti-boycott regulations, including those under the EAR and U.S. Department of the Treasury regulations; and the various economic sanctions regulations of the U.S. Department of the Treasury, Office of Foreign Assets Control. You represent, on behalf of yourself and your employees, agents and contractors, that you are not a person listed on the Specially Designated Nationals and Blocked Persons list maintained by the U.S. Treasury, Office of Foreign Assets Control, the Denied Persons or Denied Entities lists maintained by the U.S. Department of Commerce, Bureau of Industry and Security, the Debarred Persons List maintained by the U.S. Department of State, Office of Defense Trade Controls, any successors to the foregoing; or any similar lists maintained by any agency of the United States government. You will ensure that no person who has access to simPRO’s Confidential Information is listed on any of the foregoing lists. You further represent that you do not engage in: (A) prohibited dealings or transactions with any persons on the foregoing lists; and (B) dealings or transactions which would cause you to be in violation of any embargo law.
- You represent, warrant and covenant that to the extent a Foreign Person accesses the Software and Hardware or any information provided in connection with this Agreement, You will: (A) obtain prior written consent from simPRO; and (B) comply with all U.S. laws governing exports and re-exports, including EAR and ITAR. As used in this Section, a “Foreign Person” has the same meaning as “Foreign National” as defined in EAR and “Foreign Person” as defined in ITAR, as applicable.
You represent, warrant and covenant that you and no agent, affiliate, employee or other person associated with or acting on behalf of you, directly or indirectly: (i) has previously provided or will provide anything of value in the form of any unlawful contribution, gift, entertainment or other unlawful expense to any foreign official or foreign political party for the purpose of gaining or retaining business or obtaining any unfair advantage; (ii) has violated any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended ("FCPA") (15 U.S.C. 78dd-I, and 78dd-3 (1977) (as amended 1998)); or (iii) made any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment. Without limiting or waiving simPRO’s other remedies available under this Agreement or at law, you will, at simPRO’s option, pay to simPRO an amount equal to any monetary payment or thing of value provided to a third party in violation of this Section.
DISCLAIMER OF WARRANTIES:
EXCEPT AS EXPRESSLY STATED OTHERWISE, SIMPRO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE, HARDWARE AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, AND SIMPRO HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
- Any mediation or arbitration shall be administered by the American Arbitration Association (“Mediation Institution” or “Arbitration Institution”).
- Any mediation shall be in accordance with the AAA Commercial Mediation Procedures (“Mediation Procedure”). All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties and their respective attorneys, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
- Any arbitration shall be in accordance with the AAA Commercial Arbitration Rules (“Arbitration Procedure”). Any court proceedings for preliminary relief, or relief in aid of arbitration, will be brought in state or federal court in Denver, Colorado. Any award, order, or judgment pursuant to arbitration under this provision will be deemed final and binding and may be enforced in any court of competent jurisdiction. The parties agree that the arbitrator will have no power or authority to make awards or issue orders of any kind that are prohibited by this Agreement. All arbitration pursuant to the Arbitration Procedure will be conducted on a confidential basis. The arbitrator may, as part of the arbitration award, permit the substantially prevailing party to recover all or part of its attorneys’ fees and other out-of-pocket costs incurred in connection with the arbitration.
- The seat of arbitration shall be Denver, Colorado.
- If you reside in the United States of America, you agree that you and simPRO waive the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceedings as to all disputes. The arbitrator may not consolidate more than one party’s Claims. If this paragraph is held unenforceable, then this paragraph shall be severed, and the remaining provisions of the arbitration agreement remain in force.
Governing Law and Jurisdiction:
The construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction. Subject to the provisions of Section 22.5, which such section shall prevail in the event of a conflict, the parties hereby consent to the exclusive jurisdiction of the federal and state courts in Denver, Colorado and agree to accept the service of process of such courts such that any suit brought by either party against the other party for claims arising out of or related to this Agreement shall be brought in the federal and state courts located in Denver, Colorado.
Subject to the provisions of Section 22.5, if any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its actual attorneys’ fees and court costs from the non-prevailing party.
WAIVER OF JURY TRIAL:
SUBJECT TO THE PROVISIONS OF SECTION 22.5, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- All electronic notices must be provided to simPRO by email at email@example.com.
- All other notices must be addressed and provided to simPRO at 329 Interlocken Pkwy. Suite 100, Broomfield, CO 80021.
- General: If you reside in Canada, the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
Compliance with Export Laws
The Software and Hardware may be subject to Canadian export control laws. Each party shall comply with the export laws and regulations of Canada and other applicable jurisdictions in providing and using the Software and Hardware. Without limiting the foregoing, you warrant and represent that:
- You are not named on any Canadian government list of persons or entities prohibited from receiving exports;
- You shall not, directly or indirectly, export, re-export or release the Software or Hardware to, or make the Software or Hardware accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation; and
- You shall comply with all applicable federal laws, regulations and rules and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), before exporting, re-exporting, releasing or otherwise making the Software or Hardware available outside Canada.
- Any mediation shall be administered by the ADR Institute of Canada (“Mediation Institution”) in accordance with the National Mediation Rules (“Mediation Procedure”).
- If the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 applies, then any arbitration shall be in accordance with the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5.
- If the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 does not apply, any arbitration shall be in accordance with the Arbitrations Act, 1991, S.O. 1991, c. 17.
- Such arbitration shall be conducted by a single arbitrator, appointed by a Judge of the Ontario Superior Court of Justice upon the application of any of the parties. Any such arbitration shall be held in the Municipality of Metropolitan Toronto.
- The seat of arbitration shall be Toronto, Canada.
- The procedure to be followed shall be agreed by the parties or, in default of agreement, determined by the arbitrator. The arbitrator shall have the power to proceed with the arbitration and to deliver the arbitrator’s award notwithstanding the default by any party in respect of any procedural order made by the arbitrator.
- The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
Intellectual Property Rights
simPRO reserves and shall retain its entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, subject to the licence expressly granted to you in this Agreement. You covenant and agree to safeguard all Software from infringement, misappropriation, theft, misuse or unauthorized access.
Disclaimer of Liability
IN NO EVENT WILL SIMPRO OR ITS RELATED ENTITIES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE. YOU ARE PROVIDED THE SOFTWARE UNDER THIS AGREEMENT SOLELY FOR YOUR BENEFIT AND AT YOUR DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THIS AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR LIABILITY SIMPRO OR ITS RELATED ENTITIES, OR ANY OF ITS OR THEIR LICENSORS OR SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL BE SOLELY TO YOU AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH HEREIN.
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in the Province of Ontario, Canada, and, subject to this Agreement, the parties agree to submit to the exclusive jurisdiction of the courts located closest to Toronto, Ontario.
- All electronic notices must be provided to simPRO by email at firstname.lastname@example.org.
- General: If you reside in the United Kingdom, the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
- “Related Entities” means any business entity from time to time controlling, controlled by, or under common control with, either party.
- “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks, service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
VAT and Taxes
- All sums payable under this Agreement are exclusive of any VAT chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for VAT purposes.
- Where, under this Agreement, any party makes a supply to any other party (“Recipient”) for VAT purposes and VAT is or becomes chargeable on that supply for which the supplying party is required to account to the relevant tax authority, the Recipient shall, subject to the receipt of a valid VAT invoice, pay the supplying party (in addition to and at the same time as, any other consideration for that supply) the amount of such VAT.
- Where any party is required by this Agreement to reimburse or indemnify any other party for any cost or expense, that first party shall reimburse or indemnify the other party for the full amount of the cost or expense, including any VAT on that amount, except to the extent that the other party is entitled to credit or repayment for that VAT from any relevant tax authority.
- All taxes, charges, levies, assessments and other fees of any kind imposed on the purchase or import of the Products shall be your responsibility and for your account.
- Any mediation shall be administered by the Centre for Effective Dispute Resolution (“Mediation Institution”) in accordance with the CEDR Model Mediation Procedure (“Mediation Procedure”).
- Clause 20.8 is deleted.
- In this clause “Data Protection Legislation” shall mean the Data Protection Act 2018, Regulation (EU) 2016/679 (General Data Protection Regulation) (“GDPR”) (as applicable) and any other laws relating to the protection of personal data and the privacy of individuals.
- In addition to each party’s obligations under clause 14 (Your Data), both parties will comply with all applicable requirements of the Data Protection Legislation, this clause 24.4 and simPRO’s Personal Data Protection Policy (as amended from time to time), which you agree forms part of this Agreement. A copy of simPRO’s Personal Data Protection Policy can be found at www.simprogroup.com or provided on request.
- You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to simPRO for the duration and purposes of this Agreement.
simPRO shall, in relation to any personal data processed in connection with the performance by simPRO of its obligations under this Agreement:
- Assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- Notify you without undue delay on becoming aware of a personal data breach;
- At your written direction, delete or return personal data and copies thereof on termination of the Agreement unless otherwise required by law store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and
- Maintain complete and accurate records and information to demonstrate its compliance with this clause 24.4 and immediately inform you if, in the opinion of simPRO, an instruction infringes the Data Protection Legislation.
Third party rights:
This Agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in England and Wales, and, subject to this Agreement, the parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.
- All electronic notices must be provided to simPRO by email at email@example.com.
- All other notices must be addressed and provided to simPRO at Suite 6, James Hall Parsons Green St. Ives Cambridgeshire PE27 4AA, United Kingdom.
- General: If you reside within New Zealand, the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
- “Related Entities” means any Associated Person as that term is defined in section YB of the Income Tax Act 2007.
Consumer Guarantees Act 1993 & Fair Trading Act 1986: If you are using or receiving the Services for the purpose of a trade or business, you acknowledge and agree to contract out of:
- The provisions of the Consumer Guarantees Act 1993; and
- Sections 9, 12A, 13 or 14(1) of the Fair Trading Act 1986.
Privacy Act 1993:
SimPRO Software New Zealand Limited located at Level 1, 703 Rosebank Road, Avondale, Auckland 1026, may collect personal information about you or your Users as a result of performing its rights and obligations under this Agreement (refer clause 14 and simPRO’s Personal Data Protection Policy (as amended from time to time) for more information about the purposes for which the information may be used). This information is stored using our cloud-based system which is accessed by us over the internet. In addition, you agree that any information about you or your Users provided to simPRO may be used by simPRO at any time for any purposes connected with its business. You have rights to access and correct your personal information under the Privacy Act 1993.
- Any mediation or arbitration shall be administered by the Arbitrator’s and Mediator’s Institute of New Zealand (“Mediation Institution” or “Arbitration Institution”).
- Any mediation shall be in accordance with the Arbitrator’s and Mediator’s Institute of New Zealand Mediation Protocol (“Mediation Procedure”).
- Any arbitration shall be in accordance with the Arbitrator’s and Mediator’s Institute of New Zealand Arbitration Rules (“Arbitration Procedure”).
- The seat of arbitration shall be Auckland, New Zealand.
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in Auckland, New Zealand and, subject to this Agreement, the parties agree to submit to the exclusive jurisdiction of the courts of New Zealand.
- All electronic notices must be provided to simPRO by email at firstname.lastname@example.org.
- All other notices must be addressed and provided to simPRO at Level 1, 703 Rosebank Road, Avondale, Auckland 1026, New Zealand.
- Notice: simPRO may give notice by means of electronic mail to your email address specified in the Proposal or on record in your Account or by written communication sent by post or by courier service to your address in the Proposal or on record in your Account. Such notice will be deemed to have been given upon the expiration of thirty-six (36) hours after mailing (if sent by first post or sending by courier) or twelve (12) hours after sending (if sent by email), or, if earlier, when received. Such notice will be deemed to have been given twelve (12) hours after sending, or, if earlier, when received. A party may, by giving notice, change its applicable address, email, or other contact information.
- Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
- No Agency: No joint venture, partnership, employment, or agency relationship exists between you and simPRO as a result of this Agreement or use of the Service.
- As Principal: simPRO is entering into this Agreement as principal and not as agent for or on behalf of any other simPRO entity.
- No Waiver: The failure of simPRO to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by simPRO in writing.
- Force Majeure: Subject to your payment, and excluding a party’s inability to pay debts as they come due, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, pandemics, epidemics, quarantines, stay-at-home and similar orders, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
- Assignment: Except for an assignment to a parent or subsidiary, this Agreement may not be assigned by either party without the prior written approval of the non-assigning party, provided that simPRO may assign this agreement to (i) an affiliate of simPRO, (ii) an acquirer of all or substantially all of simPRO’s assets involved in the operations relevant to this Agreement; or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.
- Entire Agreement: This Agreement, together with the Proposal and any applicable schedule or document incorporating these simPRO Terms and Conditions of Service by reference comprise the entire agreement between you and simPRO and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. To the extent of any inconsistency between a Proposal, SOW, these simPRO Terms and Conditions of Service and any other document, these simPRO Terms and Conditions of Service prevail unless expressly stated otherwise.
- Exclusion of CISG: The application of the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from this Agreement.
Service Level Schedule
- Service Level: Subject to the exclusions below, simPRO shall ensure that the Software has no less than 99.5% Uptime (as defined herein). “Uptime” means the Software is operational and is available to communicate with the internet in simPRO’s server location (which may be at a co-location facility).
Remedy: If the level of Uptime is not provided, as Customer’s sole and exclusive remedy, Customer will be entitled to a credit (subject to the applicable procedures in this Agreement) in accordance with the schedule below. Credits may only be used towards future invoices from simPRO, and shall not entitle Customer to a cash refund of any kind, even if the Agreement is terminated or expires before use of all of Customer’s credits.
Uptime Level Available Credit 99.0%-99.5% Credit equal to 6% of monthly fees 99.0%-98.5% Credit equal to 7% of monthly fees 98.5%-98.0% Credit equal to 8% of monthly fees 98.0%-97.5% Credit equal to 9% of monthly fees Below 97% Credit equal to 10% of monthly fees
- This credit does not apply to the extent that the failure to achieve the Uptime is due or relates to: (a) scheduled maintenance or downtime, (b) any modifications or alterations of the Software made by any individual or entity other than simPRO or its authorised agents; (c) any violation of the Agreement by Customer or it’s Users; (d) any unavailability that cannot be reasonably recreated by simPRO; (e) Customer’s failure to comply with the documentation published for the Software; (f) any third party software; (g) the Public Circuit (as defined below); (h) failures due to Force Majeure events; and/or (i) Customer’s or its Users’ inability to access the Software due to problems with software, hardware, telecommunications, or networking equipment located in Customer’s or its Users’ own facilities, including internet connection. “Public Circuit” means the third party provided circuits, overland and/or submarine cabling, and other connectivity infrastructure from a point of demarcation starting immediately after the ingress/egress router or similar appliance at Customer’s or its User’s site to the point immediately before the ingress/egress router or similar appliance at the facility used by simPRO to host the Software. .
All capitalised terms used herein shall have their definitions from the Agreement of the “Definitions” section below.
Support Services consist of (a) Account Management, (b) Upgrades, (c) Error Correction, and (d) Feature Requests.
Licensor may assign a Customer Success Manager to serve as Customer’s point of contact. The Customer Success Manager will be available to answer Customer’s questions and advise on how to get the most value from simPRO’s service. Named contacts from Customer may contact the Customer Success Manager via email and phone during simPRO’s business hours.
During the Term, if simPRO releases any Upgrades to the Software, it shall, pursuant to a mutually agreed-upon schedule, make available and install such Upgrades in the Hardware and Software being used by Customer. Notwithstanding the foregoing, nothing herein shall require simPRO to release Upgrades to the Software. All Upgrades shall be considered within the definition of Software under the Agreement, and licensed pursuant to the terms of the Agreement.
All Errors shall be reported to simPRO by emailing:
- For Australia: email@example.com;
- For United States: firstname.lastname@example.org;
- For Canada: email@example.com;
- For United Kingdom: firstname.lastname@example.org;
- For New Zealand: email@example.com,
or by submitting a ticket through the Support Center. Licensor shall make its best efforts correct any Error reported by Customer in accordance with the priority level reasonably assigned to such Error by simPRO.
Priority 1 Errors - simPRO shall (i) provide an Initial Response within two (2) business hours (ii) initiate Management Escalation immediately; and (iii) provide Customer with a Status Update within two (2) hours if simPRO cannot resolve the Error.
Priority 2 Errors - simPRO shall (i) provide an Initial Response within four (4) business hours; (ii) initiate Management Escalation within twelve (12) hours; (iii) provide Customer with a Status Update within twenty-four (24) hours if simPRO cannot resolve the Error.
Priority 3 Errors - simPRO shall (i) provide an Initial Response within one (1) Business Day (ii) initiate Management Escalation within three (3) Business Days (iii) provide Customer with a Status Update within three (3) Business Days if simPRO cannot resolve the Error.
If simPRO believes that a problem reported by Customer may not be due to an Error in the Software, simPRO will so notify Customer. At that time, Customer may (1) instruct simPRO to proceed with problem determination at Customer’s expense as set forth below, or (2) instruct simPRO that Customer does not wish the problem pursued at its expense. If Customer requests that simPRO proceed with problem determination at its expense and simPRO determines that the error was not due to an Error, Customer shall pay simPRO, at simPRO’s then-current and standard consulting rates for all work performed in connection with such determination, plus reasonable, out-of-pocket related expenses actually and directly incurred therewith. Customer shall not be liable for (i) problem determination or repair to the extent problems are due to Errors in the Software; or (ii) work performed after Customer has notified simPRO that it no longer wishes work on the problem determination to be continued at its possible expense (such notice shall be deemed given when actually received by simPRO). If Customer instructs simPRO that it does not wish the problem pursued at its possible expense or if such determination requires effort in excess of Customer’s instructions, simPRO may, at its sole discretion, elect not to investigate the error with no liability therefor. If Customer requests that simPRO proceed with problem determination at its expense and simPRO determines that the error was due to an Error, then simPRO shall be responsible for the cost of any such work.
Customer may submit requests for new features through its Success Manager, and if acceptable, simPRO shall be engaged and performed pursuant to a Statement of Work under the Agreement. All new features shall be considered within the definition of Software under the Agreement, and licensed pursuant to the terms of the Agreement. Licensor will inform customer, using commercially reasonable efforts, of the status of the development of the requested feature. If simPRO does not plan to build the requested feature, or if it plans to build the feature but on a timeline that is not acceptable to Customer, simPRO may, at its discretion, offer Customer the option to accelerate the development of the feature for a cost. Costs for accelerated feature development will depend on the feature being developed, and may include time, materials, and licensing fees and shall be previously approved by Customer.
Licensor shall have no obligation to support or provide maintenance with respect to or in the case of: (i) altered or damaged Software or Hardware by a party other than simPRO; (ii) problems with the Hardware or Software caused by Customer’s negligence, abuse or misapplication, or unauthorised use of Software other than as specified in the simPRO’s user manual or as approved by simPRO; (iii) other causes beyond the control of simPRO. Licensor shall have no liability for any changes in Customer’s hardware or software systems that may be necessary to use the Services due to a Workaround or maintenance.
“Business Hours” are from 9 a.m. to 9 p.m., Eastern Standard Time, Monday through Friday, excluding holidays.
“E-mail support” means ability to make requests for technical support assistance by e-mail at any time (with reasonable efforts by simPRO to respond within one (1) Business Day) concerning the use of the then current release of the Software.
“Initial Response” means the first contact by a Support Engineer after the incident has been logged and a ticket generated.
“Management Escalation” means, if the initial Workaround or Fix does not resolve the Error, notification of simPRO management that such Errors have been reported and of steps being taken to correct such Error(s).
“Priority 1 Error” means an Error that renders the Software completely inoperative E.g. Customer or Users cannot access the Service due to unplanned service downtime.
“Priority 2 Error” means Customer or Users can access the Software, however one or more significant features are unavailable.
“Priority 3 Error” means any other error that does not prevent the Customer or Users from accessing a significant feature of the Software.
“Error” means a Priority 1 Error, Priority 2 Error and Priority 3 Error.
“Status Update” means if the initial Workaround or Fix cannot resolve the Error, notification of the Customer regarding the progress of the Workaround or Fix.
“Upgrades” means, other than routine bug fixes and updates, additional software added to the Software that provides new functionality or modules to the Software.
“Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of the Software.