Terms & Conditions - simPRO Lite

simPRO legal information

This Agreement is made between you and simPRO Software Pty Ltd (“simPRO”). You are bound by this Agreement from the Acceptance Date. If you do not agree to the terms of this Agreement then you should cease using the Services immediately. We may modify this Agreement from time to time, subject to the terms set out in clause 14 of this Agreement.

Definitions

The following definitions will apply to this Agreement:
1. “Acceptance Date” means the date of your acceptance of these terms.
2. “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.
3. “Agreement” means these Terms and Conditions as varied from time to time but shall exclude any changes made to the Agreement by you unless simPRO has expressly agreed otherwise.
4. “Billing Date” means the Commencement Date or, if a free trial period is undertaken, the calendar day following the expiration of the free trial period.
5. “Business Day” means a weekday where trading banks are ordinarily open in the jurisdiction applicable to this Agreement.
6. “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.
7. “Commencement Date” means the first day you have access to the Software.
8. “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is by its nature confidential, 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.
9. “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.
10. “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.
11. “Licensor” means simPRO or its licensor(s).
12. “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 and excludes those described in subclause 12.2(g).
13. “Personnel” means any representative, director, employee, contractor or agent employed, engaged or instructed by a party.
14. “Related Entities” has the meaning set out in clauses 17, 18, 19, 20, 21 and 22 as applicable.
15. “Services” means our provision of the Software.
16. “Software” means the software platform known as “simPRO Lite”, 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 but excludes Third Party Software.
17. “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”.
18. “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.
19. “Term” means the period commencing on the Commencement Date and ending on the date this Agreement is terminated.
20. “Third Party Software” means any third party software provided or made available by simPRO from time to time in connection with the Services.
21. “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).
22. “User Account” means an individual username and password account issued to you under your Account.
23. “You”, “you”, “Your” or “your” means the legal entity or individual agreeing to these terms.
24. “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.
Interpretation

A reference to:
1. Legislation (including subordinate legislation) is to that legislation as amended re-enacted or replaced, and includes any subordinate legislation issued under it;
2. 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;
3. 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
4. Anything (including a right, obligation or concept) includes each part of it; and
5. A singular word includes the plural, and vice versa.
Scope of Agreement

This Agreement applies to the Services and will govern any additional Services or variation to the Services simPRO may provide to you from time to time. From the Acceptance Date you are agree to this Agreement and simPRO’s policies as communicated and amended from time to time (including simPRO’s Personal Data Protection Notice (General)) located at https://www.simprogroup.com/legal as amended from time to time (“Personal Data Protection Notice”). simPRO may modify this Agreement from time to time, subject to the terms set out in clause 14.
Software
1. License to Software. Subject to payment in full of the fees due to simPRO and compliance with this Agreement, simPRO grants you during the Term a non-transferable, non-sublicensable, non-exclusive license to access and use the Software as provided by simPRO.
2. 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.
3. License to Third Party Software. Your access to, and use of, Third Party Software is at your sole risk and will be governed by the contractual relationship between you and the relevant third party vendor.
Access and Availability
1. Availability. You acknowledge that simPRO will, subject to scheduled 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.
2. Suspension of Services: simPRO may suspend or interrupt the Services, in whole or in part, if:
  1. You or any Users are using the Services in breach of this Agreement or in breach of the law;
  2. Your system, your Account or User Accounts has been compromised or unlawfully accessed;
  3. Suspension of the Services is necessary to protect the infrastructure of simPRO or its affiliates, or is necessary to protect simPRO’s other customers;
  4. Suspension is required under the law or necessary to protect simPRO’s rights; and
  5. 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.
3. Passwords and Access.
  1. simPRO shall issue you User Accounts for the Software.
  2. You must use all commercially reasonable efforts to prevent unauthorised individuals and entities access to your Account or any User Accounts.
  3. You are responsible for:
    1. All activities that occur under your Account other than those performed by simPRO; and
    2. 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.
  4. simPRO may access your Account in its proper performance of the Services.
Ownership
1. 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, including paid professional services, shall be held exclusively by Licensor. In addition, to the extent you provide any verbal or written ideas, suggestions, feedback, error reports or corrections concerning the Software (“User Feedback”), you hereby assign, transfer and convey to the Licensor all worldwide right, title, and interest in and to any and all User Feedback, including, without limitation, any ideas, inventions, discoveries, original works of authorship, findings, conclusions, concepts, and improvements in such User Feedback. 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 6.1.
2. Third Party Software: You acknowledge that your Intellectual Property Rights in Third Party Software will be governed by the contractual relationship between you and the relevant third party vendor.
3. Content. As between you and simPRO, your Content is and shall remain your property. 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 to the extent required for the provision of the Services.
Your Obligations
1. You are authorised to permit Users access to the Software via a User Account subject to your payment of the applicable fees.
2. You understand and agree that:
  1. You and your Users are not permitted to distribute, upload, transmit, store, make available or otherwise publish or process through the Services, Content that:
    1. Is unlawful or encourages another to engage in anything unlawful;
    2. Contains a virus or any other similar programs or software which may damage the operation of simPRO’s or another’s computer;
    3. Violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party;
    4. Breaches the terms of simPRO’s privacy policies or any applicable third-party privacy policy;
    5. includes any Special Category of personal data;
    6. Is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying.
  2. 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.
  3. Your Users may only use the Software and Third Party Software in accordance with applicable law.
  4. 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.
  5. Certain aspects of the Software and Third Party Software 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 Third Party Software of such abilities. You must comply with all applicable laws relating to such notifications.
  6. You must not sublicense, resell or supply the Services 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.
Payment
1. Fees: Except when you are in a free trial period, you shall pay for a subscription based on the pricing of your selected plan.
2. Set-off: You acknowledge that all payments to be made by you under this Agreement must be made without set-off unless otherwise expressly agreed in writing by simPRO. simPRO may, in simPRO’s sole discretion, 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.
Payment Processors
1. simPRO uses 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 policies agreed between you and the Payment Processor as well as the terms of this Agreement.
2. 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 method (“Payment Method”).
3. 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 Payment Method in your next payment to simPRO.
4. ONCE AUTHORISED BY YOU, 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.
5. Other than taxes imposed on simPRO relating to its income, receipts and employment-related taxes, you will bear responsibility for all applicable taxes, duties, and other governmental charges, including sales or value-added tax, use and withholding taxes (collectively, “Taxes”) resulting from the Services. You will pay the Taxes as are necessary to ensure that the net amounts received by simPRO after all Taxes are paid are equal to the amounts that simPRO would have been entitled to in accordance with this Agreement as if the Taxes did not exist.
6. 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 deemed final.
7. 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.
8. You agree that simPRO may change third-party processors from time to time with reasonable notice to you of the same.
9. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIMPRO DISCLAIMS ALL LIABILITY IN CONNECTION WITH THE ACTS AND OMISSIONS OF THE PAYMENT PROCESSOR.
Your Data
1. Ownership of Data: As between you and simPRO, Your Data is and will remain your property.
2. License to Data: 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 Services to you and your Users.
3. Privacy: You agree that:
  1. simPRO and its Related Entities may monitor you and your User’s use of the Services and may collect and use data and related information, including but not limited to information about you and your User’s use, which may be gathered periodically to ensure compliance with this Agreement, to study and improve the Services, 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 Services and their functions, and for other requirements of simPRO.
  2. 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.
  3. 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, which is classified as Special Category data.
  4. Any collection of Your Data or a User’s data by simPRO and its Related Entities shall be collected in accordance with the Personal Data Protection Notice which you agree forms part of this Agreement. A copy of the Personal Data Protection Notice can be found at https://www.simprogroup.com/au/legal or provided on request.
  5. Nothing in this Agreement prevents simPRO and its Related Entities from disclosing Your Data to the extent required by law such as if required by subpoena or court order.
4. Spam:
  1. You warrant that you will not utilise your User Account or the Services 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.
  2. If we suspect Spam activity on your Account, we may suspend the provision of any Services and your User Accounts pending further investigation.
  3. 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 10.4, you will forfeit all pre-payments, credits and rights to receive the Services under this Agreement.
Third Party Services

You acknowledge that:
1. You may be required to use third party products and/or services in support of the Services under this Agreement (“Third Party Services”).
2. The Third Party Services are not provided by simPRO and simPRO provides no warranty and accepts no liability whatsoever in relation to Third Party Services.
3. Suggestions, recommendations or resales by simPRO for, or of, Third Party Services are made by simPRO without warranty or guarantee of any kind. You assume all responsibility for exercising independent judgment in determining whether the suggestions, recommendation or resales are sufficient for your purposes.
4. The Third Party Services may be subject to the third party vendor’s additional terms and conditions.
Liability
1. Indemnity:
  1. When simPRO indemnifies you:
    
    TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
    1. 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 third party Intellectual Property Rights by the Software (other than in connection with your Content, Your Data, the Third Party Software, any modifications or alterations to the Software not performed by simPRO or its suppliers, misuse of the Software or your breach of this Agreement) (“Infringement Action”).
    2. In case of an Infringement Action, simPRO may, in its sole discretion and without additional cost to you, procure a license that will protect you against the Infringement Action, replace the Software with a non-infringing version, or if it deems such remedies impractical, simPRO may terminate this Agreement without incurring any liability.
    3. If simPRO terminates this Agreement in accordance with this subclause 12.1(a), you will receive a pro-rata refund of fees prepaid prior to the date of termination. You will not be entitled to any refund for the periods in which you have received the Services in accordance with this Agreement.
  2. When you indemnify simPRO: To the maximum extent permitted by law, you will compensate, reimburse, indemnify and hold simPRO, simPRO’s Personnel and simPRO’s Related Entities harmless 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:
    1. 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;
    2. Relating to your breach or alleged breach of this Agreement or any applicable law;
    3. Arising out of your or your Personnel’s act, omission, negligence or misconduct;
    4. Arising out of Claims relating to use of your Account or you or your Users’ use of the Services; or
    5. Arising out of Claims relating to liability excluded, waived, assumed or acknowledged as your responsibility in this Agreement.
  3. 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 12.1(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 12.1(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.
  4. 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.
  5. The Indemnitor will defend and/or settle, at its own expense, the Claim, subject to indemnification under this Agreement.
  6. 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.
  7. 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.
2. Disclaimers and Limitations
  1. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT ONLY TO THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT THE SERVICES ARE PROVIDED “AS IS”, WITHOUT ANY FURTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED. YOU ASSUME ALL RESPONSIBILITY FOR EXERCISING INDEPENDENT JUDGMENT IN DETERMINING WHETHER THE SERVICES OR THE MATERIALS GENERATED THEREBY ARE ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. SIMPRO DOES NOT WARRANT OR GUARANTEE THAT USE OF THE SERVICES WILL BE FREE FROM DEFECTS, ERROR-FREE OR UNINTERRUPTED OR THAT CONTENT LOSS WILL NOT OCCUR.
  2. TO THE MAXIMUM 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.
  3. Third Party Software, Testing and Third Party Services: You acknowledge that, to the maximum 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:
    1. Third Party Software in any way;
    2. Your installation, testing or lack of testing of the Third Party Software;
    3. Your wilful misconduct, recklessness, negligence or misuse;
    4. Your failure to follow simPRO’s reasonable directions;
    5. Any lack or interruption of signal, power, internet or other Third Party Service howsoever arising,
  4. Your Data: For loss or corruption of Your Data, simPRO’s liability will be limited to taking reasonable steps to try and recover that data from available backups.
  5. Total Aggregate Liability: In no event will simPRO’s aggregate liability exceed the subscription fees paid by you in the six (6) months prior to the time of the event or circumstance giving rise to the Claim.
  6. Consequential Damages: To the maximum extent permitted by law, neither party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, earnings, revenue, profits, goodwill, use or other economic advantage, loss of business, production or opportunity, loss or corruption of data, wasted overheads, 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 the termination or expiration of this Agreement.
  7. Free trial, preview, beta, or other pre-release feature or service: simPRO may include a free trial or a preview, beta, or other pre-release feature or service offered to obtain customer feedback ("Preview"). FREE TRIALS AND PREVIEWS ARE PROVIDED "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE”. Free trials and Previews may not be covered by customer support and are subject to any additional notices provided with the free trial or Preview. Certain named Previews may be intended for future release at additional cost despite being offered for free during the Preview period. simPRO may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into "General Availability."
Confidentiality
1. 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 13 will survive for as long as applicable information meets the definition of Confidential Information.
2. 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:
  1. 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
  2. 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, which: (i) must be retained for compliance purposes; (ii) is contained in systems, archives or backups which cannot be practicably deleted; (iii) must be retained as required by applicable law, accounting standard, stock exchange rule or for sound corporate governance purposes, provided that any such retained information shall remain subject to the confidentiality obligations of this Agreement.
3. 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.
4. Commencing day thirty-one (31) following termination or expiration of this Agreement or the Services, simPRO reserves the right to permanently delete your Confidential Information and/or Your Data.
Variations
1. Variations to Fees: simPRO may change your current fees and charges at any time by providing notice in accordance with clause 14.3.
2. Variations to Services: You may request a variation to your Agreement to increase or decrease Users at any time by submitting a request through your Account. When increasing users, simPRO will process such requests subject to your payment of the applicable subscription fees. When decreasing users, simPRO will process such requests and the reduced subscription fees will take effect on the first monthly anniversary of the Billing Date following such requests.
3. 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 it involves a change in price and/or a material change to your rights or responsibilities, 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 in accordance with clause 15.1 below.
4. Date of Variation: Any variation to this Agreement or simPRO’s policies will be deemed effective and binding upon you:
  1. From the date of notice; or
  2. If it involves a change in price and/or a material change to your rights or responsibilities, from expiry of the notice period, provided you have not otherwise exercised your right to terminate this Agreement in accordance with clause 15.1.
Term and Termination
1. Monthly Term: 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 by notice to the other party. Termination will be effective on the first monthly anniversary of the Billing Date following such notice. To the extent permitted by law, payments are not refundable and simPRO does not provide refunds or credits for any partial subscription periods.
2. Termination for Breach: simPRO may suspend or terminate usernames and passwords, accounts, use of the Software and/or terminate this Agreement if you 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.
3. 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 6, 10, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22 and 23.
Dispute Resolution
1. 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.
2. If the dispute involves an error in the Services, simPRO shall attempt to identify and correct the error in accordance with this Agreement.
3. 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.
4. 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 13.
5. Nothing in this Agreement shall prevent a party from seeking urgent injunctive relief from the courts in the place of your residence.
6. Pending resolution of a dispute, the parties shall continue to perform their respective obligations under this Agreement.
Australia
1. General: If you reside within Australia the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
2. Definitions:
  1. “Related Entities” has the meaning set out in the Corporations Act 2001 (Cth)
3. GST
  1. All sums payable under this Agreement are exclusive of any GST chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for GST purposes.
  2. Where, under this Agreement, any party makes a supply to any other party (“Recipient”) for GST purposes and GST 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 tax invoice, pay the supplying party (in addition to and at the same time as, any other consideration for that supply) the amount of such GST.
  3. 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 GST on that amount, except to the extent that the other party is entitled to credit or repayment for that GST from any relevant tax authority.
4. Disclaimers and Limitations
  1. 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 (together, the “Non-Excludable Conditions”).
  2. simPRO’s liability arising from the breach of a Non-Excludable Condition shall at simPRO’s discretion, be limited to and completely discharged by any one or more of the following:
    1. If the liability relates to the supply of goods:
      1. The replacement of the goods or the supply of equivalent goods;
      2. The repair of the goods;
      3. The payment of the cost of replacing the goods or of acquiring equivalent goods; or
      4. The payment of the cost of having the goods repaired;
    2. If the liability relates to the supply of services:
      1. The supplying of the services again; or
      2. The payment of the cost of having the services supplied again.
5. Governing Law
  
  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.
6. Notices:
  
  All notices must be provided to simPRO by email at accounts@simpro.com.au with a copy sent to simPRO at Building 17, Garden City Office Park, 2404 Logan Road, Eight Mile Plains, Queensland, 4113, Australia.
United States of America
1. 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.
2. Definitions:
  1. “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.
3. Compliance with Export Laws:
  1. 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 Services 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.
  2. You represent, warrant and covenant that to the extent a Foreign Person accesses the Services 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.
4. Anti-Corruption:
  
  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.
5. DISCLAIMER OF WARRANTIES:
  
  EXCEPT AS EXPRESSLY STATED OTHERWISE, SIMPRO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES 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.
6. 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. 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.
7. Attorney’s Fees:
  
  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.
8. WAIVER OF JURY TRIAL:
  
  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.
9. Notice:
  
  All notices must be provided to simPRO by email at accounts.us@simpro.us with a copy sent to 329 Interlocken Pkwy. Suite 100, Broomfield, CO 80021.
Canada
1. General: If you reside in Canada, the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
2. Definitions:
  1. “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.
3. Compliance with Export Laws
  
  The Services 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 Services. Without limiting the foregoing, you warrant and represent that:
  1. You are not named on any Canadian government list of persons or entities prohibited from receiving exports;
  2. You shall not, directly or indirectly, export, re-export or release the Services, or make the Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation; and
  3. 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 Services available outside Canada.
4. 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.
5. Disclaimer of Liability
  
  IN NO EVENT WILL SIMPRO OR ITS RELATED ENTITIES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS OR VENDORS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICES. YOU ARE PROVIDED THE SERVICES 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, SERVICE PROVIDERS OR VENDORS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE SERVICES SHALL BE SOLELY TO YOU AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH HEREIN.
6. Governing Law
  
  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.
7. Notice:
  
  All notices must be provided to simPRO by email at accounts.us@simpro.us with a copy sent to 329 Interlocken Pkwy. Suite 100, Broomfield, CO 80021.
United Kingdom and Ireland
1. General: If you reside in the United Kingdom or Ireland, the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
2. Definitions:
  1. “Related Entities” means any business entity from time to time controlling, controlled by, or under common control with, either party.
  2. “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.
3. VAT and Taxes
  1. 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.
  2. 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.
  3. 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.
  4. 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.
4. Data Protection:
  1. 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.
  2. In addition to each party’s obligations under clause 10 (Your Data), both parties will comply with all applicable requirements of the Data Protection Legislation, this clause 20.3 and the Personal Data Protection Notice, which you agree forms part of this Agreement. A copy of the Personal Data Protection Notice can be found at https://www.simprogroup.com/au/legal or provided on request.
  3. You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to simPRO and/or its Related Entities for the duration and purposes of this Agreement.
5. 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.
6. Governing Law:
  
  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.
7. Notice:
  
  All notices must be provided to simPRO by email at accounts@simpro.co.uk with a copy sent to Suite 6, James Hall Parsons Green St. Ives Cambridgeshire PE27 4AA, United Kingdom.
New Zealand
1. General: If you reside within New Zealand, the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
2. Definitions:
  1. “Related Entities” means any Associated Person as that term is defined in section YB of the Income Tax Act 2007.
3. 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:
  1. The provisions of the Consumer Guarantees Act 1993; and
  2. Sections 9, 12A, 13 or 14(1) of the Fair Trading Act 1986.
4. Privacy Act 1993:
  
  SimPRO Software New Zealand Limited located at Level 2, B3, 61 Constellation Drive Rosedale, Auckland 0632 New Zealand and/or its Related Entities, may collect personal information about you or your Users as a result of performing its rights and obligations under this Agreement (refer clause 10 and the Personal Data Protection Notice 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 and/or its Related Entities may be used by simPRO and its Related Entities 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.
5. Governing Law
  
  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.
6. Notice
  
  All notices must be provided to simPRO by email at accounts@simpro.co.nz with a copy sent to Level 2, B3, 61 Constellation Drive Rosedale, Auckland 0632 New Zealand
Elsewhere in the World
1. General: If you reside outside of the United States, Canada, United Kingdom, Ireland, New Zealand or Australia, the following clauses apply to you and to the extent of any inconsistency, these terms shall prevail.
2. Definitions:
  1. “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.
3. 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.
4. Disclaimer of Liability
  
  IN NO EVENT WILL SIMPRO OR ITS RELATED ENTITIES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS OR VENDORS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICES. YOU ARE PROVIDED THE SERVICES 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, SERVICE PROVIDERS OR VENDORS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE SERVICES SHALL BE SOLELY TO YOU AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH HEREIN.
5. Governing Law
  
  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.
6. Notice:
  
  All notices must be provided to simPRO by email at accounts@simpro.com.au with a copy sent to Building 17, Garden City Office Park, 2404 Logan Road, Eight Mile Plains, Queensland, 4113, Australia.
General
1. Notice: simPRO may give notice by means of electronic mail to your email address on record in your Account. Such notice will be deemed to have been given upon the expiration twelve (12) hours after sending.
2. 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.
3. 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.
4. As Principal: simPRO is entering into this Agreement as principal and not as agent for or on behalf of any other simPRO entity.
5. 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.
6. 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, failure by a third party hosting provider or utility provider, interruption or failure of the Internet or any utility service, loss of power, or denial of service attack, 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.
7. Assignment: Except for an assignment to a Related Entity where the Related Entity assumes all the rights and responsibilities of the assignor, 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) a Related Entity 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.
8. Entire Agreement: This Agreement comprises 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.
9. Exclusion of CISG: The application of the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from this Agreement.