Simeio Solutions, LLC, including an applicable Affiliate identified in an Order Form, (“Simeio”) is granting You, in accordance with these SaaS Terms and Conditions (“SaaS Terms”), the right to use the software, Simeio IO, and Simeio will provide certain software and services to You as described in these SaaS Terms. Simeio reserves the right to change these terms and conditions at any time with or without prior notice. In the event that any changes are made, the revised terms and conditions will be posted on this website immediately.
1. Definitions.
1.1 “Affiliate” means any company or entity that is under common control with, a subsidiary of, or a parent company to the party.
1.2 “Applicable Data Protection Laws” means all applicable privacy and data protection laws, their implementing regulations, regulatory guidance and secondary legislations, each as updated or replaced from time to time, including: (a) the General Data Protection Regulation (EU 2016/679) (the “GDPR”) and any applicable national implementing laws; (b) the UK General Data Protection Regulation (“UK GDPR”) and the UK Data Protection Act 2018; (c) the Privacy and Electronic Communications Directive (2002/ 58/ EC) and any applicable implementing laws, including the Privacy and Electronic Communications Regulations 2003 (SI 2003/ 2426) (“EC Directive”); (d) the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); (e) U.S. privacy legislation (e.g. the California Consumer Privacy Act (“CCPA”) and the California Privacy Rights Act (“CPRA”); (f) the Digital Personal Data Protection Act, 2022 (“DPDP”) and (g) any other laws that may be applicable related to data privacy or data protection.
1.3 “Authorized User” means employees, agents, consultants, contractors, or vendors authorized by You to use Simeio IO solely for Your, and to the extent applicable, Your Affiliate’s internal business use subject to the terms and conditions of these SaaS Terms.
1.4 “Business Day” means Monday through Friday, except any legal public holidays as defined in conjunction with the governing law of these SaaS Terms.
1.5 “Claim” means any third-party suit, claim, action, or demand.
1.6 “Confidential Information” means: (a) Simeio IO (which is Confidential Information of Simeio); (b) any Client Data (which is Your Confidential Information); (c) any information of a party that is disclosed in writing or orally and is designated as Confidential or proprietary at the time of disclosure or that, due to the nature of the information or circumstances of disclosure, the receiving party would understand it to be the disclosing party’s confidential information; and (d) the specific terms of SaaS Terms any applicable Order Forms, and any amendment or attachment to any of these, between the parties (which will be deemed Confidential Information of both parties). For the avoidance of doubt, Confidential Information includes trade secrets.
1.7 “Client Data” means electronic data uploaded by or for You or Your agents, employees, contractors, or customers, and processed in Simeio IO, but excluding Simeio Materials including but not limited to Simeio IO and any Confidential Information of Simeio.
1.8 “Documentation” means the then-current service description for Simeio IO.
1.9 “Intellectual Property Rights” means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.
1.10 “Law” means any applicable law, rule, statute, decree, decision, order, regulation, judgment, code, and requirement of any government authority (federal, state, local, or international) having jurisdiction.
1.11 “Order Form” means a written document that specifies the period of authorized access to and terms of use of Simeio IO duly executed by authorized representative of each party.
1.12 “Sensitive Personal Information” means any (i) special categories of personal data enumerated in the GDPR or UK GDPR (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other consumer financial information subject to the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s license numbers or other government ID numbers; or (vi) any data considered “sensitive” or a similar designation or that is subject to heightened protections under Applicable Data Protection Laws.
1.13 “Simeio IO” means the software as a service product identified in the Order Form and subject to these SaaS Terms.
1.14 “Simeio Material” means (a) Simeio’s proprietary software products including Simeio IO; (b) any generic routines or code that have general application to Simeio’s proprietary software (even if resulting from work performed as part of Simeio IO and/or the Services and would otherwise constitute Work Product); (c) software, data, documentation, graphics, text, code, inventions, pictures, audio, video, animations, enhancements, improvements, methods, processes, works of authorship, work-flow methods or other deliverables, or any portions of the foregoing, and all Intellectual Property Rights therein, that Simeio created or creates, whether alone or jointly, unrelated to Simeio IO and/or the Services or that do not result from Simeio IO and/or the Services; and (d) all modifications, alterations, derivative works and enhancements to the foregoing, and all copies thereof.
1.15 “Subscription Term” means the period of authorized access to and use of Simeio IO, as set forth in an Order Form.
1.16 “Support Services” means the maintenance and support services provided in connection with Simeio IO, and any additional support services which may be purchased by You.
1.17 “You” or “Your” means the entity executing the applicable Order Form including any Affiliate designated in the Order Form. You will be fully responsible for the performance of all of Your Affiliates’ obligations under this these SaaS Terms.
2. Grant of License; Access and Use Rights; Restrictions
2.1 Grant of License. In consideration of the license fees paid as stated in the Order Form and these SaaS Terms, Simeio grants You a non-exclusive, non-transferable license to use (and to permit the Authorized Users to use) Simeio IO during the Subscription Term, solely for Your internal business purposes and in accordance with the Documentation. Except for the license granted pursuant to these SaaS Terms, all rights, title, and interest in and to Simeio IO, the Documentation, and any derivative works related thereto, are hereby expressly reserved.
2.2 Access and Use Rights. You will not otherwise access or use Simeio IO in a manner that exceeds Your authorized access and use rights as set forth in these SaaS Terms and the applicable Order Form. You may make a reasonable number of copies of the Documentation. You may not make a copy of Simeio IO.
2.3 Service Locations. Simeio will host Your instance of Simeio IO at the service location that is within and/or geographically nearest to Your legal jurisdiction and will take reasonable steps to avoid hosting in a service location that would result in the export of Client Data. Simeio reserves the right to change the service location at any time, without advance notice, and for any reason in Simeio’s absolute and sole discretion.
2.4 Restrictions. You will not (directly or indirectly) and will not permit others (including Your Authorized Users) to: (a) use Simeio IO in excess of contractual usage limits (including as set forth in the applicable Order Form), or in a manner that circumvents usage limits or technological access control measures; (b) license, sub-license, sell, resell, rent, lease, transfer, distribute, time share, or otherwise make any of it available for access by third-parties, except as may otherwise be expressly stated in the applicable Order Form; (c) access it for the purpose of developing or operating products or services for third-parties in competition with those offered by Simeio; (d) disassemble, reverse engineer, or decompile it; (e) copy, create derivative works based on, or otherwise modify it, except as may be otherwise expressly stated in these SaaS Terms; (f) remove or modify a copyright or other proprietary rights notice in it; (g) use it to reproduce, distribute, display, transmit, or use material protected by copyright or other Intellectual Property Right (including the rights of publicity) without first obtaining permission of Simeio; (h) use it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation; or (i) access or disable Simeio’s or third-party data, software, or network. You will not submit to or use Simeio IO to collect any Sensitive Personal Information and will immediately remove such data if submitted by You or on Your behalf. Notwithstanding any other provision to the contrary, Simeio has no liability under this Agreement for Sensitive Personal Information submitted in violation of the foregoing. Before You engage in any of the foregoing acts that You believe You may be entitled to, You agree to seek the express written approval of Simeio.
2.5 Use Verification. Simeio, or any other authorized party Simeio designates, may from time to time remotely review Your use of Simeio IO, and upon Simeio’s written notice, You will provide reasonable assistance and access for Simeio to verify Your compliance with these SaaS Terms. If Simeio determines that You have exceeded your permitted access and use rights to Simeio IO or otherwise are not in compliance with these SaaS Terms, then Simeio will notify You and within thirty (30) days thereafter You will take prompt action to remediate the noncompliance, including purchasing additional subscriptions commensurate with Your actual use.
2.6 Third Party Integrations. Simeio IO may contain features designed to interoperate with third party applications or services contracted for by You. By enabling a third-party integration, You expressly instruct Simeio to share all Client Data necessary to facilitate the third-party integration and to provide the services. Simeio will not be liable for such third-party applications or services or any exported data. No warranties are made by Simeio regarding the availability or performance of integrations with third party systems and applications. Third-party integrations and service may change or be disabled at any time, and in such cases You will not be entitled to any refund, credit or other compensation. Simeio’s provision of features enabling interoperation with any third-party application or service does not constitute Simeio’s endorsement or approval of such application or service.
3. Additional Services.
You and Simeio may provide for the performance of additional services related to Simeio IO. Any such services will be specified on an applicable Order Form and are subject to the Services Terms and Conditions available at https://simeio.com/category/resources/legal/
4. Reseller Orders.
Simeio may designate other third-parties to resell Simeio IO (“Resellers”). Such Resellers will specify the price and payment terms for Simeio IO but are not authorized to make any changes to these SaaS Terms or to bind Simeio to any additional or different terms or conditions. Simeio is not a party to any Reseller orders, and Simeio has no obligation to perform any professional services unless it has an applicable Order Form with You. Further, Simeio is not obligated to provide Simeio IO if purchased from a Reseller, until such time that the Reseller has executed an appropriate Order Form with Simeio.
5. Price, Payment Terms and Taxes.
5.1 Price. The price for Simeio IO and/or any professional services will be specified on the applicable Order Form.
5.2 Payment Terms. The payment terms for Simeio IO and/or any professional services will be specified on the applicable Order Form. Payments which are not received when due will bear interest at the lesser of the maximum amount chargeable by law or 1½% per month commencing from the date, payment was due.
5.3 Taxes. The fees and charges covered by these SaaS Terms are exclusive of any taxes imposed or levied by a relevant tax authority. To the extent required, Simeio will include or separately invoice You and remit such taxes to the relevant taxing authority. For any Reseller orders, the Reseller will be responsible for collecting and remitting any required taxes to the relevant taxing authority.
6. Intellectual Property Rights.
6.1 Simeio’s Ownership. Simeio exclusively owns all right, title, and interest in and to all Intellectual Property Rights in Simeio IO. Except for the access and use rights, and licenses expressly granted in these SaaS Terms, Simeio does not grant You any rights (express, implied, by estoppel, through exhaustion, or otherwise). Simeio IO delivered to You or to which You are given access will not be deemed to have been sold, even if, for convenience, and any references to words such as “sale” or “purchase” in the Order Form will not have any effect on these SaaS terms.
6.2 Feedback. Simeio encourages You and Your Authorized Users to provide suggestions, proposals, ideas, recommendations, request enhancements and/or other feedback regarding improvements to Simeio IO (collectively, “Feedback”). To the extent You or any of Your Authorized Users provide Simeio with Feedback, You and You on behalf of Your Authorized Users grant Simeio a royalty-free, fully paid, sublicensable, transferable non-exclusive, irrevocable, perpetual, worldwide right and license to use, license, and commercialize Feedback (including by incorporation of such Feedback into Simeio IO) without restriction.
7. Confidentiality.
7.1 Confidentiality. Each party (the “Receiving Party”) acknowledges that it will have access to Confidential Information and may access trade secrets of the other party (the “Disclosing Party”). The Receiving Party agrees to use the Confidential Information of the Disclosing Party solely for purposes of performing its obligations or exercising its rights in connection with these SaaS terms. The Receiving Party agrees to discuss or transmit Confidential Information only to those officers, employees and consultants of the Receiving Party who have a need to know the Confidential Information for the purposes set forth herein and who have agreed in writing to treat such information as confidential on terms no less restrictive than as set forth in these SaaS Terms. The parties acknowledge and agree that the terms of any previously executed confidentiality or non-disclosure agreements will remain in effect with respect to the information exchanged thereunder.
7.2 Security Precautions. The Receiving Party will take commercially reasonable security precautions to prevent unauthorized use and disclosure of Confidential Information of the Disclosing Party and will use at least the same degree of care the Receiving Party employs with respect to its own Confidential Information, but in no event less than a reasonable standard of care. The Receiving Party will take commercially reasonable measures to not permit unauthorized access to the Confidential Information of the Disclosing Party.
7.3 Duration and Exceptions. With regard to Confidential Information, the obligations in this Section will continue for the Term and for a period of three (3) years thereafter. With regard to trade secrets, the obligations in this Section will continue for so long as such information constitutes a trade secret under applicable law. The Receiving Party’s obligations with respect to Confidential Information of the Disclosing Party will not apply to the extent such Confidential Information: (a) are previously known to the Receiving Party without restriction on disclosure; (b) cease to be secret or confidential except by reason of a breach of these SaaS Terms by the Receiving Party; (c) are independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; or (d) were received from a third party without knowledge of obligations of confidence and without breach of these SaaS Terms. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is required by applicable law or by any governmental authority, provided the Receiving Party notifies the Disclosing Party, if permitted by law, of the applicable legal requirements before such disclosure occurs so as to enable the Disclosing Party to obtain such protection as may be available to preserve the confidentiality of such information.
7.4 Residuals. These SaaS Terms will not be construed to limit Simeio’s right to independently develop or acquire ideas, inventions, technology, and other creations without use of Your Confidential Information or Intellectual Property Rights.
7.5 Injunctive Relief. In the event of any breach of this Section, the parties agree that the non-breaching party will suffer irreparable harm for which money damages may not be an inadequate remedy. Accordingly, without the necessity of posting a bond, the non-breaching party will be entitled to seek injunctive relief, in addition to any other available remedies at law or in equity.
7.6 No Confidentiality Violations. A party’s confidentiality obligations to any third party will not be violated by any of such party’s disclosures hereunder.
7.7 Data Processing Addendum. The parties’ agreement with respect of the processing of personal information submitted to Simeio IO to comply with Applicable Data Protection Laws is described in the Data Processing Addendum incorporated into these SaaS Terms and available https://simeio.com/category/resources/legal/.
8. Warranties; Disclaimers of Warranties
8.1 Limited Subscription Services Warranty. Simeio warrants that, during the Subscription Term, Simeio IO will materially conform with the Documentation. To submit a warranty claim under this Section, You must submit a support request to resolve the non-conformity as provided in the Documentation. If the non-conformity persists without relief more than thirty (30) days after notice of a warranty claim provided to Simeio, Simeio will provide You with a pro rata credit for each month that the non-conformity persists. Notwithstanding the foregoing, this warranty will not apply to any non-conformity due to the use of Simeio with another product, some other modification of or defect in Simeio IO that is made or caused by any person other than Simeio or a person acting on Simeio’s behalf.
8.2 Pass Through Warranties. To the extent Simeio IO includes any third-party materials, Simeio will passthrough all applicable warranties and indemnities to the extent that it can.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, SIMEIO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO SIMEIO IO OR SAAS TERMS. SIMEIO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. SIMEIO DOES NOT WARRANT THAT SIMEIO IO IS OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION OF SIMEIO IO WILL BE UNINTERRUPTED OR THAT ALL ERRORS OR ISSUES WITH SIMEIO IO CAN OR WILL BE CORRECTED. YOU ACKNOWLEDGES AND AGREE (A) THAT YOU HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN THIS SECTION AND (B) THAT YOU HAVE READ AND UNDERSTOOD THIS SECTION, WHICH SETS FORTH SIMEIO’S OBLIGATIONS WITH RESPECT TO WARRANTY CLAIMS.
9. Indemnities.
9.1 Infringement Indemnity. Subject to the limitations set forth in Section 10 below, Simeio will defend and indemnify You from and against any and all Claim resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Your use of Simeio IO in accordance with these SaaS Terms and the Documentation.
9.2 Procedure. Simeio’s obligation to defend and indemnify will only become effective upon and are subject to: (a) Your prompt written notification to Simeio of any Claims, (b) Simeio is provided with the full and complete control of the defense, is provided with the authority to settle the Claim, is provided information necessary for the defense of the Claim, and You reasonably corporate with Simeio in defending or settling the Claim, provided that Simeio will not enter into any settlement that admits any wrongdoing on Your behalf, without your prior express written consent.
9.3 Exclusions. Simeio’s indemnification obligation will not apply in the event that a Claim arises from or relates to: (a) use of Simeio IO not in accordance with the Documentation and these SaaS Terms, (b) use of Simeio IO in violation of any applicable laws, (c) any modification, alteration or conversion of Simeio IO not created by or approved in writing by Simeio, (d) combination with any third party hardware, software, database or materials where, absent such combination, the Simeio IO would not be infringing, (e) You settle or agree to settle any Claim without Simeio’s prior written consent, (f) Your negligence or willful misconduct, (g) Your refusal to effectuate any update or version of Simeio IO.
9.4 Remedies. In the event that Simeio reasonably believes that Your use of Simeio IO is likely to become the subject of a claim of infringement or Your use of Simeio IO becomes the subject of a Claim, Simeio may, at its sole discretion and expense, (a) procure the right for You to continue using Simeio IO, (b) replace or modify Simeio IO to make it non-infringing, or if the foregoing are in Simeio’s sole discretion commercially unreasonable, (c) terminate the remaining Subscription Term and refund the amounts paid for the unused infringing portion.
9.5 Your Mis-Use: You agree to indemnify and hold Simeio harmless from any claim, demand or cause of action and all damages, judgments, decrees, costs and expenses, including reasonable attorneys’ fees arising, from Your or Your Affiliate’s acts or omissions including, without limitation, misuse of Services or any violation by You or Your Affiliates of any of the terms of the Order Form or these SaaS Terms, including but not limited to using Services and publication of any image or information by Your or Your Affiliate’s or Authorized Users in violation of applicable laws. You acknowledge and agree that Simeio may block access to Simeio IO if either party receives notice of any violation, and You agree to indemnify and hold Simeio harmless from any Claim, demand or cause of action and all damages, judgments, decrees, costs and expenses, including reasonable attorneys’ fees, related to blocking such access or such notice.
10. Limitation of Liability.
10.1 Exclusion of Damages. IN NO EVENT WILL A PARTY OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE, DELAY OR MALFUNCTION) REGARDLESS OF THE FORM OF ACTION (WHETHER ARISING UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
10.2 Limitation of Liability. EXCEPT FOR SIMEIO’S INDEMNIFICATION OBLIGATIONS, SIMEIO’S TOTAL AGGREGATE LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF SIMEIO IO OR THESE SAAS TERMS (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) WILL IN NO EVENT EXCEED THE FEES PAID DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO SUCH CLAIM. SIMEIO’S MAXIMUM LIABILITY WITH REGARD TO ITS INDEMNIFICATION OBLIGATIONS WILL NOT EXCEED $1 MILLION.
11. Term and Termination.
11.1 Term. These SaaS Terms will remain in effect during the Subscription Term, including any extension thereof.
11.2 Termination through Insolvency. Either party may immediately terminate an Order Form and the SaaS Terms upon written notice to the other party in the event that (a) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors, or (b) a substantial part of the other party’s property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency.
11.3 Termination for Cause. Either party may terminate an Order Form and these SaaS Terms if the other party materially breaches the applicable Order Form or these SaaS Terms, as applicable, and fails to correct the breach within thirty (30) days following receipt of written notice from the non-breaching party.
11.4 Effect of Termination. On termination or expiration of the Subscription Term and these SaaS Terms, You and Your Authorized Users will stop accessing and using Simeio IO, and Simeio will stop providing, Simeio IO and all related rights granted to You in these SaaS Terms will terminate immediately, automatically, and without notice.
11.5 Return of Client Data. Upon the termination or expiration of the Subscription Term and these SaaS Terms and upon Your written request, Simeio will provide a copy of the Client Data in Simeio IO to You in Simeio’s standard database export format at no additional charge. You must submit such request to Simeio within forty-five (45) days after such termination or expiration. Simeio is not obligated to maintain or provide any Client Data after such forty-five (45) day period has expired and will, unless legally prohibited, delete all Client Data in its systems or otherwise in its possession or under its control, and delete Your instances of Simeio IO.
11.6 Survival. Sections 1, 2.4, 5.3, 6-10, 11.4, 11.5, and 12-15, together with any other terms required for their construction or enforcement, will survive termination or expiration of these SaaS Terms.
12. Export Control.
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin. You agree that You will not export or re-export Simeio IO, including but not limited to the Documentation, in any form, without any applicable United States and foreign governmental licenses. You agree that Your obligations pursuant to this Section will survive and continue after any termination or expiration of the Subscription Term and these SaaS Terms.
13. Commercial Computer Software.
If You are an agency or contractor of the United States Government, You acknowledge and agree that Simeio IO (including any software forming a part thereof) was developed entirely at private expense, constitutes proprietary data belonging to Simeio, is not in the public domain, and constitutes “Commercial Computer Software” as such term is defined in in sub-paragraph (a)(1) of DFAR section 252.227-7014 or FAR Part 12.212. You will not provide any rights in Simeio IO to any U.S. Government agency or any other party except as expressly provided in the applicable Order Form.
14.Dispute Resolution; Governing Law
14.1 Please read this section carefully as it applies to You to the extent Your usual place of residence permits binding arbitration in contracts between parties and may affect rights that You may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, using a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This arbitration clause will survive termination of these SaaS Terms.
14.2 Binding Arbitration. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to these SaaS Terms, Your use of Simeio IO, and Your relationship with Simeio. Any dispute or claim arising out of or relating to these SaaS Terms or use of Simeio IO and Your relationship with Simeio or any subsidiary, parent or affiliate company or companies (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, except that either party may take claims to small claims court if they qualify for hearing by such a court.
14.3 Arbitration Procedures.
14.3.1 Informal Dispute Procedures: For all disputes, whether pursued in court or arbitration, You must first notify us and the parties will make diligent efforts through negotiation to settle any disputes arising out of or related to these SaaS Terms, including escalating the issues to their respective senior or executive management. You and Simeio each agree to negotiate Your claim in good faith. Both You and Simeio agree that the dispute resolution procedure is a condition precedent which must be satisfied prior to initiating any arbitration or filing any claim against the other party. You may request arbitration if Your claim or dispute cannot be resolved within 60 days.
14.3.2 To the extent You cannot resolve any dispute through the informal dispute resolution procedure described above, a dispute will be resolved through binding individual arbitration. You agree that the arbitration of any dispute or claim will be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules (as applicable), as modified by these SaaS Terms. The AAA Rules and information about arbitration and fees are available online at adr.org or by calling the AAA at (800) 778-7879. You and Simeio agree that these SaaS Terms evidence a transaction in interstate commerce and that this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law and will not be governed by state law if applicable. Any arbitration will be held in a reasonably convenient location in the jurisdiction in which You reside or at another mutually agreed location. The arbitration will be conducted in the English language. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy Your individual claim, and must follow and enforce these SaaS Terms as a court would. Any arbitration will be confidential, and neither You nor Simeio may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
14.4 Costs of Arbitration: Payment of all filing, administration and arbitrator fees will be governed by AAA Rules. Each party will bear the fees and expense of its own attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration. The prevailing party will be entitled to seek recovery of reasonable attorney’s fees and costs.
14.5 Class Action Waiver and Jury Waiver. You and Simeio each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines in an action between You and Simeio that this class action waiver is unenforceable, the arbitration agreement will be void as to You. If for any reason a claim proceeds in court rather than through arbitration, You and Simeio each waive any right to a jury trial.
14.6 With respect to venue, forum, and jurisdiction, this Section 14.6 will only apply if for any reason a claim proceeds in court rather than through arbitration. If the contracting entity on the Order Form is Simeio Solutions, LLC, the laws of the State of Georgia will govern the Order Form and SaaS Terms, including any disputes arising from or related hereto, without reference to conflicts of law rules or principles. The Parties expressly consent and submit to the exclusive jurisdiction and venue over any action, suit or other legal proceeding that may arise out of or in connection with these SaaS Terms or any Order Form, in any state or federal court located in Fulton County, Georgia. If the contracting entity on the Order Form is Simeio Solutions Canada, Inc., the laws of the Province of Ontario will govern the Order Form and SaaS Terms, including any disputes arising from or related hereto, without reference to conflicts of law rules or principles. The Parties expressly consent and submit to the exclusive jurisdiction and venue of any action, suit or other legal proceeding that may arise out of or in connection with these SaaS Terms or any Order Form, in any court located in Toronto, Ontario, Canada. If the contracting entity on the Order Form is Simeio Solutions Limited, the laws of the England and Wales will govern the Order Form and SaaS Terms, including any disputes arising from or related hereto, without reference to conflicts of law rules or principles. The Parties expressly consent and submit to the exclusive jurisdiction and venue of any action, suit or other legal proceeding that may arise out of or in connection with these SaaS Terms or any Order Form, in any court located in London, England. If the contracting entity on the Order Form is Simeio , the laws of India will govern the Order Form and SaaS Terms, including any disputes arising from or related hereto, without reference to conflicts of law rules or principles. The Parties expressly consent and submit to the exclusive jurisdiction and venue of any action, suit or other legal proceeding that may arise out of or in connection with these SaaS Terms or any Order Form, in any court located in Bangalore.
15. General
15.1 Limitation Period. Neither party may bring an action, regardless of form, arising out of an Order Form and these SaaS Terms more than two (2) years after the cause of action has arisen or the date such cause of action was or should have been discovered.
15.2 Aggregate Data. You hereby acknowledge and agree that Simeio may anonymously aggregate Client Data and data with content and data from other clients (“Data Aggregations”) for purposes including, without limitation, product and service development and commercialization and quality improvement initiatives. Simeio will redact Client Data in such a way as to not divulge Your Confidential Information. All Data Aggregations will be the sole and exclusive property of Simeio.
15.3 Force Majeure. Simeio is not, and may not be construed to be, in breach of these SaaS Terms for any failure or delay in fulfilling or performing, when and to the extent such failure or delay is caused by or results from acts, whether in full or in part, beyond Simeio’s reasonable control, including: strikes, lock-outs, or other industrial disputes; trespass, sabotage, theft or other criminal acts export bans, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, in each case outside of Simeio’s local network; breakdown of plant or machinery; nuclear, chemical, or biological contamination; fire, flood, natural disaster, extreme adverse weather, or other acts of God (each a “Force Majeure Event”). Simeio will use reasonable efforts to mitigate the effects of such Force Majeure Event. Either party may terminate the Order Form and this SaaS Terms if a Force Majeure Event lasts for forty-five (45) days or longer.
15.4 Assignment. Neither party will assign, transfer, or otherwise delegate any of its rights, duties, or obligations under these SaaS Terms in whole or in part to any individual, firm or corporation without the prior written consent of the other party, which consent will not be unreasonably withheld, and any attempted assignment (whether by operation of law or otherwise) will be void; except that Simeio may delegate any of its rights, duties, or obligations to one or more of its affiliates. Notwithstanding the foregoing, either party may assign its rights, duties, and obligations hereunder, without approval of the other party, to a party that succeeds to all or substantially all of its assets or business (whether by sale, merger, operation of law or otherwise). These Saas Terms will be binding upon and will inure to the benefit of the parties hereto and their successors and permitted assigns.
15.5 No Modification or Waiver. These Saas Terms may only be modified, supplemented, or deviated from by a writing executed by an authorized representative of both parties. No delay or omission by either party to exercise any right or power it has under these SaaS Terms will impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant will not be construed to be a waiver of any subsequent breach or any other covenant. All waivers must be signed by an authorized representative of the party waiving its rights.
15.6 Construction. Simeio is obligated to provide Simeio IO only in the English language, unless otherwise agreed in writing. The parties have expressly requested that the Order Form, SaaS Terms and all related documents be drafted in English. Les parties confirment avoir expressément exigé que le présent contrat et les documents qui y sont attachés soient rédigés en anglais. These SaaS Terms have been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.
15.7 Severability. In the event that any provision of these SaaS Terms is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of these SaaS Terms, and the application of such provision in any other circumstances, will not be affected thereby.
15.8 Notices. All official notices (including any notices regarding breach, termination, renewal, etc.) required or permitted hereunder will be in writing and will be delivered personally or sent by certified, registered mail or next day express mail or courier, postage prepaid. Any such notice will be deemed given (a) when so delivered personally; (b) the day after, when sent by next day express mail or courier; or (c) three (3) Business Days after, when sent by certified or registered mail to a party at the address specified on the applicable Order Form.
15.9 No Third-Party Beneficiaries. The parties to these SaaS Terms are set forth on the applicable Order Form. No other person or entity will be a direct or indirect beneficiary of or will have any direct or indirect cause of action or claim in connection with these SaaS Terms.
15.10 Marketing. You agree that Simeio may reference Your execution of the applicable Order Form and Your status as a licensee of Simeio IO in marketing materials and in sales presentations. Simeio may use Your trade names and trademarks in connection with such usage.
15.11 Entire Agreement. The applicable Order Form and these SaaS Terms (including any addenda, exhibits, and attachments, which are hereby incorporated herein by reference) constitutes the final and entire agreement between the parties, and supersedes all prior written and oral agreements, understandings, or communications with respect to the subject matter hereof.
15.12 Relationship. The parties are independent contractors. Nothing in the Order form or these SaaS Terms will be construed to create a partnership, joint venture, agency, or other relationship. Neither party has any right or authority to assume or create any obligation of any kind, express or implied, in the other party’s name or on its behalf.
15.13 Country Specific Provisions. Any country-specific provisions will replace or supplement the equivalent provisions of the SaaS terms as set forth in an applicable addendum and depending on Your country of domicile.