These Customer Terms of Service describe your rights and responsibilities when using Simana (“the Service”). Please read them carefully.
The Customer Terms of Service and any Order Form(s) together form a binding “Contract” between Customer and See Data Ltd. “We”, “Simana”, “the Simana team” and “Seedata” refers to See Data Limited of 1 Emperor Way, Exeter Business Park, Exeter, EX1 3QS, UK, company number 7307269.
1. Definitions
- “Account Administrator” means a User assigned to manage the Customer’s Simana account, with the authority to make decisions on behalf of the Customer.
- "Agreement" or “Customer Terms of Service” means these Customer Terms of Service and all materials referred or linked to in here.
- “Customer” is the organisation agreeing to the Customer Terms of Service and is listed on your Order Form.
- “Customer Agreement” is the binding contract formed by these Customer Terms of Service and any Order Forms signed/paid for by a Customer.
- “User(s)” means an individual with a user account for the Service.
- “User Licence” means a licence which is attributed to an individual User, granting them access to the Service under your subscription.
- “Personal data” means data which relates to a living individual who can be identified, for example names and workplace contact details.
- “Customer Data” means content or information submitted to the Service by Users.
- “Meta data” means data providing information about one or more aspects of the Customer data, Personal data or service usage data. This may be held in two forms. Structural Meta data is used to indicate how aspects such as projects are organised and how many elements exist within them. Administrative Meta data is used to help manage the Service or a resource or object within it, such as the list of organisations, when an object was created, usage data, access rights, and data counts.
- “Order Form” means an ordering document or an online order, entered into between Customer and Simana specifying the Service to be provided pursuant to this Agreement. Each Order Form is a stand-alone agreement, separate from any other Order Form, incorporating the terms and conditions of this Agreement by reference.
- “Charges” has the meaning in clause 6.
- “Service” means the workplace improvement software as a service platform and any training services to be provided pursuant to the applicable Order Form.
- “Subscription Term” means the period of time for the subscription to the Service, as specified on your Order Form(s), and each subsequent renewal term (if any).
2. Use of the Service
2.1 Provision of the Service and Availability. Simana will make the Service available to Customer during the applicable Subscription Term pursuant to this Agreement. Simana may update the content, functionality, and user interface of the Service from time to time provided such update will not materially decrease the functionality of the Service during the applicable Subscription Term. Customer agrees that its use of the Service under this Agreement is not contingent on the delivery of future features or functionality.
2.2 Acceptable Use Terms. Customer will not (a) make the Service available to anyone other than Customer and its Users or use the Service for the benefit of anyone other than Customer; (b) rent, sublicense, re-sell, assign, distribute, time share or similarly exploit the Service; (c) reverse engineer, copy, modify, adapt, or hack the Service; (d) access the Service, the Documentation, or Simana’s Confidential Information to develop a product or service in competition with the Service; (e) allow User Licences to be shared or used by more than one individual User (except that User Licences may be reassigned to new Users replacing individuals who no longer use the Service for any purpose); (f) use the Service to violate any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity; (g) or use the Service to create, use, send, store, or run viruses, bots, worms, or similar harmful material. Simana may request that Customer suspend the account of any User who: (i) violates this Agreement; or (ii) is using the Service in a manner that Simana reasonably believes may cause a security risk or a disruption to others’ use of the Service. If Customer fails to promptly suspend or terminate such a User’s account, Simana reserves the right to do so.
2.3 Security; Protection of Customer Data. Simana will implement and maintain reasonable administrative, organisational, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data at least as rigorous as the measures described in the Security section of the Trust Centre (available at https://trust.simana.com/). Simana reserves the right to modify the security standards from time to time provided such modification will not materially and adversely diminish the overall security of the Service during the applicable Subscription Term. In addition, either the Simana Data Processing Addendum, available at [new url], or a separately executed Data Processing Addendum (either of the aforementioned, as applicable “DPA”), will apply to any Customer Personal Data (as such term is defined in the DPA) included in Customer Data.
2.4 Administration of Customer’s Account. Customer acknowledges that it retains administrative control over to whom it grants access to Customer Data hosted in the Service. Customer may specify one or more Users as administrators (each an “Account Administrator”) to manage its account, and Simana is entitled to rely on communications from such Account Administrators and other Customer employees when servicing Customer’s account. Customer is responsible for use of the Service by its Users and for their compliance with this Agreement. Customer is solely responsible for the accuracy, quality, and legality of Customer Data. Customer will promptly notify Simana if it becomes aware of any unauthorised use or access to Customer’s account or the Service.
3. Term and Termination
3.1 Term. This Agreement commences on the Effective Date as defined on your Order Form and will run for the Subscription Term specified on your Order Form, unless terminated in accordance with its terms.
3.2 Renewal. The Subscription Term may be renewed for additional periods by executing subsequent Order Forms. In the event you do not submit any such executed Order Form, then this Agreement shall automatically terminate upon the expiration of the Subscription Term.
3.3 Termination for Cause. Either party may terminate this Agreement and any Order Form under this Agreement: (a) upon thirty (30) days written notice if the other party is in material breach of this Agreement and fails to cure such breach within the notice period, except that termination will take effect upon receipt of notice in the event of a breach of Section 3 (Acceptable Use Terms); or (b) if the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days.
3.4 Effect of Termination. Upon expiration or termination of this Agreement and/or the applicable Order Form for any reason, all Subscriptions and any other rights granted to Customer under such terminated Order Form will immediately terminate, and Customer will immediately cease to use the Service. Upon termination of an applicable Order Form by Customer pursuant to Section 3, Simana will refund to Customer a prorated amount of prepaid, unused fees applicable to the remaining portion of the Subscription Term measured from the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees accrued or payable to Simana for the Service in the period prior to the effective date of termination. Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled and apply to successors and assignees.
3.5 Treatment of Customer Data Following Expiration or Termination. Customer agrees that following expiration or termination of all Subscriptions under the Agreement, Simana may immediately deactivate Customer’s account(s) associated with such Agreement. Simana will make Customer Data available to Customer for export as long as Simana receives written notice within thirty (30) days after the effective date of expiration or termination from Customer. After such thirty (30) day period, Simana will have no obligation to retain Customer Data and will thereafter, unless legally prohibited, be entitled to delete all Customer Data in its systems or otherwise in its possession or under its control. Subject to any limitations in Customer’s Service configuration, upon Customer’s request, Simana will, within one-hundred and eighty (180) days of receipt of such request, securely destroy all Customer Data from its systems; provided that all back-ups will be deleted within thirty (30) days after such one-hundred and eighty (180) day period.
4. Confidentiality
4.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. As used herein, ‘Confidential Information’ means all information disclosed by a party (‘Disclosing Party’) to the other party (‘Receiving Party’), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. A party’s Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- is required to be disclosed by law.
4.2 Each party shall hold the other’s Confidential Information in confidence and use the same degree of care that it uses to protect the confidentiality of its own Confidential Information, but in no event less than reasonable care, and unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
4.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
5. Intellectual Property Rights
5.1 Simana Ownership. As between the parties, Simana and its licensors exclusively own all right, title, and interest in and to all intellectual property rights in the Service. Customer’s use of the Service will not affect Simana’s ownership or license rights in the Service. Simana reserves all rights in the Service and does not grant Customer or its Users any intellectual property rights to the Service, including any enhancements, modifications or derivatives thereof.
5.2 Infringements. The Customer and its Users must not: (a) Infringe Simana’s Intellectual Property Rights, including those arising in the Service or those of any third party in relation to use of the Services; (b) use Simana’s Intellectual Property Rights, other than as permitted under this Agreement, without the prior written consent of Simana; (c) permit any third party, to infringe Simana’s Intellectual Property Rights or those of any third party in relation to their use of the Service.
5.3 Customer Ownership. As between the parties, Customer and its licensors will retain all right, title, and interest in and to all intellectual property rights in Customer Data. Customer grants to Simana and its authorised third party Subprocessors a royalty-free, fully paid, non-exclusive, non-transferrable (except under Section 12 - Assignment), worldwide, right to use, host, store, backup, transmit, and display Customer Data solely to (a) provide and support the Service and (b) improve the Service as long as neither Customer nor its End Users are publicly identified and such data is used in a statistical or aggregated form.
5.4 Feedback. If Customer submits any feedback to Simana regarding the Service, Simana may use such feedback for any purpose without any compensation or obligation to Customer provided such use does not violate Section 4 (Confidentiality).
6. Charges
6.1 Subscription charges. Charges covering your use of the Service for the Subscription Term are outlined on your Order Form, along with any payment frequency terms. These charges remain fixed during the current Subscription Term unless (a) you upgrade your subscription plan or (b) purchase additional User Licences, in which case you will be charged as per the terms outlined on the applicable Order Form.
6.2 Payment. Customer will pay all undisputed amounts due under the applicable Order Form within thirty (30) days of invoice date, or immediately if executing the Order Form by credit card payment. If Customer disputes any part of an invoice in good faith, Customer will pay the undisputed part and provide Simana with notice and detail of the dispute no later than the invoice due date. Amounts due are payable in the currency set forth in the applicable invoice and are non-cancellable and non-refundable unless otherwise provided in this Agreement. Simana reserves the right to suspend Customer’s account in the event that Customer’s account becomes overdue and is not brought current within ten (10) business days following notice. Unpaid amounts may be subject to interest at the rate of 2% per month. Suspension will not relieve Customer’s obligation to pay amounts due.
6.3 Taxes. Any fees charged to Customer are exclusive of taxes. Except for those taxes based on Simana’s net income, Customer will be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. If any withholding is required by law, Customer will pay Simana in full and cleared funds to ensure that the net amount that Simana receives, after any such withholding, equals the amount Simana would have received if no withholding had been applied. If Customer is exempt from certain taxes, Customer will provide proof of such exemption to Simana without undue delay upon execution of the applicable Order Form.
7. Indemnification
7.1 Subject to the provisions of this clause, Simana undertakes at its own expense to defend you in respect of any successful claim or action brought against you, alleging that the possession or use of the Service (or any part thereof) in accordance with the terms of this Agreement infringes the intellectual property rights in the United Kingdom of a third party ("Claim") and shall be responsible for paying any out of pocket legal costs and/or damages awarded by an English court against you in favour of the claimant in respect of the Claim. For the avoidance of doubt, this clause shall not apply where the Claim in question is attributable to possession or use of the Service (or any part thereof) by you, other than in accordance with the terms of this Agreement.
7.2 Subject to the provisions of this clause, if any third party makes a Claim, or notifies an intention to make a Claim against you, Simana's obligations under this clause are conditional on you: (a) giving immediate written notice of the Claim to Simana, specifying the nature of the Claim in reasonable detail; (b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Simana (at Simana's absolute discretion); (c) allowing Simana exclusive control over and conduct of all Claims and any settlement thereof; and (d) giving Simana all assistance that it may reasonably require in the conduct of any Claims, including giving Simana and its professional advisers access to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within your power or control, so as to enable Simana and its professional advisers to examine them and to take copies (at Simana's expense) for the purpose of assessing the Claim.
7.3 Subject to the provisions of this clause, if any Claim is made, or in Simana’s reasonable opinion is likely to be made, against you, Simana may at its absolute discretion and expense: (a) procure for you the right to continue to use the Service (or any part thereof) in accordance with the terms of this Agreement; (b) modify the Service so that it ceases to be infringing; or (c) replace the Service with an alternative non-infringing Service; provided that if Simana modifies or replaces the Service, you shall have the same rights in respect thereof as it would have had under this Agreement had the references to the date of this Agreement been references to the date on which such modification or replacement was made.
7.4 Clauses 7.1 to 7.3 (inclusive) shall only apply if you have paid to us (in full and in cleared funds) all sums due pursuant to this Agreement in respect of your use of the Service.
7.5 The provisions of this clause constitute your exclusive remedy and Simana's only liability in respect of Claims. For the avoidance of doubt, this clause 7 is subject to the provisions of the Charges clause.
8. Limitation of Liability
8.1 This clause sets out the limitation of liability of each party (including any liability for the acts or omissions of its employees, agents, consultants and sub-contractors) to the other party in respect of: any breach of contract, howsoever arising; the Service, or any part thereof (including any use made of it); any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement; any other liability (including non-contractual) howsoever arising under any legal theory whatsoever arising out of or in connection with this Agreement.
8.2 Nothing in this Agreement limits or excludes the liability for either party for: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; or any other matter for which it would be unlawful for a party to exclude or limit or attempt to exclude or limit its liability.
8.3 Subject to clause 9.4, neither party shall under any circumstances whatsoever be liable to the other party, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution and/or otherwise howsoever under any legal theory whatsoever, for any of the following losses (whether direct or indirect): loss of profits or revenue (save for any sums due pursuant to clause 6); loss of business; depletion of goodwill and/or loss of reputation; loss of other contracts or loss of business opportunity; payments (e.g. penalties) due to be paid/paid to any third party under any other contract or arrangement; wasted management and/or staff and/or office time; loss of anticipated savings, nor any other special, indirect or consequential loss, costs, damages, charges or expenses suffered by the other party that arises under or in connection with this Agreement.
8.4 Subject to clause 4, Simana's total liability to you whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution and/or otherwise howsoever arising out of or in connection with any failure by Simana to comply with the General Data Protection Regulation in respect of personal data made available to Simana as a result of your use of the Service shall in all circumstances be limited to and shall not exceed, a total sum equal to £2,000,000.
8.5 Subject to the provisions of this clause, each party's total liability to the other party whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution and/or otherwise howsoever arising under any legal theory whatsoever shall in all circumstances be limited to and shall not exceed for any other type of liability, a total sum equal to the Total Annual Charge.
9. Warranties
9.1 We warrant that the Service provided pursuant to this Agreement will be performed with reasonable skill and care, and in accordance with accepted industry practice; and in accordance with all applicable laws and regulations in the United Kingdom; the Service shall be free from material defects and any viruses malicious code, trojan, worm, lock, authorisation key or similar device that impairs or could impair the operation of the computer systems of a party.
9.2 The above warranties shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to our instructions, or modification or alteration of the Service by any party other than us or our duly authorised contractors or agents. If the Service does not conform with the foregoing undertaking, Simana will at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the above warranty.
9.3 Notwithstanding the foregoing, Simana does not warrant that your use of the Service will be uninterrupted or error-free; or that the Service will meet your requirements; and is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.4 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement. Save to the extent set out in this Agreement, the Service is provided to you on an "as is" basis.
10. Miscellaneous
10.1 Governing Law and Jurisdiction. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed and shall be construed in accordance with the laws of England and Wales.
10.2 Dispute Resolution. Each party irrevocably agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration in force at the date of the dispute or claim, which rules are deemed incorporated by reference in this clause. For the avoidance of doubt, nothing in this clause shall prevent either party from applying to any court in any jurisdiction, to obtain an injunction in the event of the breach or threatened breach of the terms of this Agreement.
10.3 Publicity. Simana may include Customer’s name and logo in Simana’s online customer list and in print and electronic marketing materials.
10.4 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its or its supplier's reasonable control (including, but not limited to, fire, lightning, explosion, war, disorder, flood, industrial dispute, terrorism, sabotage, weather conditions or acts of local or central Government or other competent authorities). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. Should any event, referred to in this clause continue for more than 90 days then either you or we may terminate the Agreement forthwith on a non-fault basis.
10.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
10.6 Variation. Simana may modify any part or all of the Agreement by posting a revised version. The revised version will become effective and binding the next business day after it is posted. We will provide you with advance notice of this revision by email. If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your Subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the new terms will apply. However, if we can no longer reasonably provide the Service to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Service after termination in accordance with the ‘Effect of Termination’ and ‘Treatment of Customer Data Following Expiration or Termination’ provisions of this Agreement. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
10.7 Severance. If any clause within the Agreement is invalid or not enforceable it will be deemed deleted and not affect the remainder of the Agreement.
10.8 Assignment. Neither party may assign the Agreement, in whole or in part, without the prior written consent of the other. However, either party may assign the Agreement to its successor in interest in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all its assets.
10.9 Notices. Notices to Simana will be sent to legalnotices@simana.com. Notices to Customer will be sent via email to the email addresses of your Sponsor (senior customer contact) and Account Administrators. Notices will be deemed delivered upon receipt.
10.10 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.