This Hardware Sale and Hosted Service Agreement (the “Agreement”) is made between simPRO Software Pty Ltd ACN 121 998 945 (“Licensor” or “simPRO”) and the Customer (as defined below).
This Agreement, including the attached Schedule(s), is effective on the Acceptance Date (as defined below).
Definitions. The following definitions (and additional definitions provided below) will apply to this Agreement:
“Acceptance Date” means the date the Order Form is signed by Customer and accepted by simPRO.
“Commencement Date” means the first day you have access to your software, including subscribed licenses and customizations, or delivery of any hardware.
“Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that, where permitted by law, the receiving party will promptly inform the providing party of any such requirement in advance and cooperate with any attempt to procure a protective order or similar treatment.
“Customer” means the legal entity or individual that enters into this Agreement as described on the Order Form.
“Customer Account” means Customer’s account used to access the Software, and all usernames relating thereto.
“Customer Content” means graphics, text, audio, photos, software, music, sounds, video or similar information or material provided or submitted by Customer or any User to simPRO or the Software in the course of utilizing the Software.
“Customer Data” means any information or data provided or submitted by Customer or any User to simPRO or the Software in the course of utilizing the Software.
“Customer Representative” means the Users designated by Customer in an applicable Order Form as authorized to create User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.
“Hardware” means any leased computer hardware specified in the Order Form or any SOW, including but not limited to any simTRAC hardware, but excluding the Software and any other Intellectual Property Rights incorporated into the Hardware.
“Intellectual Property Rights” means any intangible property right provided by law, including but not limited to (i) trademark, trade dress and service mark rights, (ii) copyrights, (iii) patent rights, and (iv) trade secret rights.
“Order Form” means a completed order for the Service submitted to simPRO by Customer, through simPRO’s website or otherwise. All Order Forms are subject to the terms and conditions of this Agreement.
“Professional Services” means, other than the Support Services, software consulting and management services, information technology services, installation services, or other stipulated services provided to Customer as identified in a Statement of Work or Order Form.
“Services” means, collectively, all services provided or made available to Customer by simPRO under this Agreement or any schedule hereto, and the functionality provided by the Software.
“Service Level Schedule” means the schedule attached as Schedule A, describing the support services available for subscription from simPRO.
“Software” means the software platform known as “simPRO,” the software embedded in the Hardware, and all modules, tiers and extensions thereto, including all source code, object code, architecture, designs, functionality, content (excluding Customer Content), concepts, features, and documentation related thereto, as well as all updates and customizations to any of the foregoing.
“Statement of Work” or “SOW” means a written description of Professional Services to be performed by simPRO under this Agreement, which shall specify, as applicable, the fees associated with the work and other responsibilities of the parties. Each SOW will be included as an attachment to this Agreement and will be incorporated herein by reference, and will be deemed accepted and binding on the parties upon execution thereof. Each SOW shall remain in effect until the earlier to occur of: (a) termination of such SOW by either party in accordance with this Agreement and/or the terms of the SOW; or (b) expiration or termination of the Term or term of professional services identified in the SOW.
“Support Services” means the support services further identified in Schedule B.
“Term” means the length of this Agreement as specified in the Order Form and renewed pursuant to clause 15.
“User” means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Service and have been supplied User identifications and passwords by Customer (or by simPRO at Customer’s request).
“User Account” means an individual username and password account issued to Customer under the Customer Account.
Lease. Subject to payment in full of the fees due to simPRO, and compliance with this Agreement, simPRO leases the Hardware to Customer for the Term. Customer acknowledges that it has no option or right to purchase or upgrade the Hardware.
Delivery. simPRO will deliver the Hardware to Customer’s premises as identified in the Order Form. The Hardware shall be deemed to have been delivered in good working order and in accordance with this Agreement unless Customer notifies simPRO to the contrary within three (3) business days of delivery.
Installation. If Customer has elected on the Order Form to self-install the Hardware, then Customer (or its consultants) shall be responsible for unpacking, inspecting for defects, and installing and configuring the Hardware in a professional and workmanlike manner. If Customer has elected on the Order Form for the Hardware to be installed by a third party arranged by simPRO, then simPRO shall arrange such installation at Customer’s cost and subject to clause 11.
Title. simPRO retains ownership of the Hardware, and any modifications thereto, at all times. Customer possesses and uses the Hardware as a licensee only and shall not be entitled to any lien or other interest in the Hardware other than the right to possess and use the Hardware during the Term in accordance with this Agreement. Customer shall not do anything inconsistent with simPRO’s ownership of the Hardware, including but not limited to attempting to sell, lease, sub-lease, dispose, encumber, or affix the Hardware to land or other property. If simPRO has an identification plate or other marks evidencing simPRO’s ownership or providing other information on the Hardware (a “Name Plate”), Customer agrees that it will not remove or obscure the Name Plate and that at Customer’s own cost, maintain the Name Plate and ensure that it is legible and visible at all times.
Duties of Customer. Customer shall:
use, maintain and service the Hardware entirely at its own cost and strictly in accordance with the requirements and recommendations of simPRO or its manufacturers or suppliers. The Hardware shall be kept by Customer in good working order and condition at all times, without damage being caused to the Hardware.
not attempt to alter, reverse engineer or make any addition to the Hardware.
Comply at its own cost with all applicable laws relating to the use of the Hardware, including obtaining and maintaining any licenses, permits and registrations required.
Loss, Damage and Destruction
Customer shall immediately notify simPRO of any loss, damage, theft, destruction, confiscation or failure of the Hardware, howsoever caused (“Damage”).
If it is possible and economical to repair the Damage, then Customer must promptly effect such repairs to a professional and workmanlike standard. Any replacement parts must be of at least the same quality as the parts being replaced. Replacement parts shall form part of the Hardware and become the property of simPRO upon installation.
If it is not possible and economical to repair Damage, then Customer shall so notify simPRO and must pay to simPRO, within ten (10) days after notice to simPRO of the Damage, the full replacement value of the Hardware (as reasonably determined by simPRO at that time) plus a replacement and processing fee, to be determined at that time by simPRO. Upon full satisfaction of payment to simPRO, simPRO shall, within fourteen (14) days, arrange for replacement Hardware to be delivered to the Customer in accordance with Section 2.2.
Insurance. The Customer must at all times during the Term, and at its own cost, insure the Hardware against loss, theft, destruction and damage for full replacement value on terms satisfactory to simPRO. At simPRO’s request, simPRO shall be added as an additional insured on the policy. Customer shall provide simPRO with a certificate of insurance upon request. If Customer fails to comply with its obligations in clause 2.6.2 or its indemnification obligation hereunder, then any insurance proceeds received shall be held on trust for simPRO and must be paid to simPRO on demand (without limiting any other rights or remedies simPRO may have against Customer).
Inspection. Upon reasonable notice, Customer shall allow simPRO or its representative to enter any place, vehicle or location where the Hardware is located to inspect the condition of the Hardware, or to monitor or enforce compliance with this Agreement.
No abatement. All fees payable by the Customer pursuant to this Agreement, including lease payments for the Hardware, shall continue to be payable notwithstanding any loss, damage, theft, destruction, confiscation, failure or underperformance of the Hardware.
Return. The Customer must disconnect, adequately package and make the Hardware available for collection by simPRO immediately following the last day of the Term. simPRO shall collect the Hardware at its own cost, and Customer shall fully cooperate with simPRO in such return. If despite simPRO’s efforts the Hardware has not been returned to simPRO’s possession with thirty (30) days of the end of the Term, at simPRO’s election, simPRO may, in addition to any other remedies available to simPRO under the law, require Customer to promptly pay to simPRO the full replacement value of the Hardware, as reasonably determined by simPRO at that time, with such sums payable by Customer within ten (10) days of notice from simPRO.
Hosted Software License
License. Subject to payment in full of the fees due to simPRO, and compliance with this Agreement, simPRO grants to Customer during the Term, for the number of Users specified in the applicable Order Form, a non-transferable, non-exclusive license, without right to sublicense, to access and use the tier of the Software and Software functionalities identified in the Order Form, as hosted by simPRO.
Software Upgrades and Modifications. Customer agrees 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, 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.
Access and Availability
Availability. Unless Customer has subscribed to the Service Level Schedule with simPRO, as indicated in the Order Form, simPRO will, subject to planned downtime make reasonable efforts to ensure that the Software is generally available; however, simPRO does not guarantee, represent or warrant that access to the Software will be uninterrupted or error-free, and simPRO does not guarantee that Customer will be able to access or use all of the Software’s features at all times. Licensor will make reasonable efforts notify Customer of system outages and scheduled downtime.
If Customer has subscribed to the Service Level Schedule, as indicated in the Order Form, and paid the associated fees, simPRO shall make its commercial best efforts to ensure that the Software is available in accordance with the terms of the Service Level Schedule. Customer’s sole remedy for any failure to provide the Software in accordance with the Service Level Schedule shall be the service credits identified therein.
Suspension. Licensor may suspend or interrupt the Services, in whole or in part, if (i) Customer or Users are using the Services in violation of this Agreement or in violation of the law, (ii) Customer’s system, Customer Account, User Account or Hardware has been compromised or unlawfully accessed, (iii) suspension of the Services is necessary to protect the infrastructure of simPRO or its affiliates, or is necessary to protect simPRO’s other customers, (iv) suspension is required under the law, or (v) if Customer fails to pay the fees applicable under this Agreement when due, and provided that Customer has been notified in writing of its failure to pay and given fifteen (15) days to remedy this failure.
Passwords and Access.
Licensor shall issue User Accounts for the Software in the number of seats identified on the Order Form.
Other than access by simPRO, Customer shall use commercially reasonable efforts to restrict individuals or entities outside of Customer to gain any access to the Customer Account or any User Accounts.
Customer is responsible for all activities that occur under the Customer Account. Customer is responsible for maintaining the security and confidentiality of all Customer Account usernames and passwords. Customer shall notify simPRO promptly of any unauthorized use of any Customer Account or any other known or suspected breach of security of which Customer becomes aware.
Software Ownership. Licensor retains all right, title and interest in and to the Software, and all Intellectual Property Rights therein. Title to and ownership of any modifications, upgrades, updates or customizations of the Hardware or Software shall be held exclusively by simPRO. In addition, Customer grants simPRO the right and license to make, use, sell, reproduce, modify, sublicense, disclose, distribute and otherwise exploit error reports, corrections, and suggestions provided by Customer concerning the Hardware or Software and modifications based thereon or incorporated therein, which may include new functional features. Customer agrees 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 section.
Updates/Upgrades. Customer agrees that simPRO may update, upgrade or modify the Software, at any time, including the removal or modification of previously available functionality. Subject to the foregoing, unless separately identified as having additional terms, any updates, upgrades, enhancements and/or modifications provided to Customer by simPRO will automatically be considered part of the Software and will be subject to the terms of this Agreement.
Customer Content. All Customer Content is and shall remain the property of Customer or the applicable third party. Customer grants to simPRO a nonexclusive, worldwide, royalty-free license to use, reproduce, modify and prepare derivative works of the Customer Content for the Term of this Agreement solely in connection with its provision of the Services.
Limitations, Notices and Additional Customer Obligations
Customer is authorized to permit use of the Software by the number of Users identified in the Order Form, or in the amount of additional User seats purchased from time to time.
Customer understands and agrees that neither Customer nor Users are permitted to distribute, upload, transmit, store, make available or otherwise publish or process through the Software any Customer 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; or, (4) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. Customer understands and agrees that simPRO reserves the right to edit, modify or remove content being hosted by simPRO, including for violations of the above standards.
Customer agrees that it and its Users may only use the Software and Hardware in accordance with applicable law, and not for any illegal purpose or other purposes that violates the law.
Customer understands and agrees that, and Customer’s or Users’ direction. the Software may place phone calls and text messages, which may incur fees with Customer’s carrier. Customer agrees that simPRO is not responsible for such fees, which may not be deducted or offset against the fees due to simPRO hereunder.
Certain aspects of the Software and Hardware may permit tracking of individuals and items. Customer acknowledges and agrees that it is Customer’s sole responsibility to alert individuals interacting with, using or being tracked by the Software and/or Hardware of such abilities. Customer shall comply with all applicable laws relating to such notifications.
While Users may be any persons that Customer authorizes to use the Software for its business, including, but not limited to, Customer’s employees and contractors, Customer may not sublicense, resell or supply the Software for use in or for the benefit of any other organization, entity, business, or enterprise without simPRO’s prior written consent.
Provided that Customer has elected the service on the Order Form and paid the fees associated therewith, simPRO shall make its best efforts to provide the Support Services.
In the event that Customer requests Professional Services that simPRO desires to render, simPRO shall prepare a Statement of Work covering such Professional Services. If agreed upon and executed, each Statement of Work shall form a separate contract governed by this Agreement and the terms of the Statement of Work.
Unless stated otherwise in an applicable Statement of Work, any estimates of time provided in connection with deliverables or Services, are good faith projections, but are not guarantees. Unless otherwise agreed to by the parties in writing, in the event that simPRO provides Professional Services on a “time and materials” rate basis, simPRO shall charge Customer at simPRO’s standard rates then in effect. In the event that simPRO provides Professional Services hereunder on a “fixed fee” rate basis, such fixed fee will cover only the specific tasks, expenses, and deliverables that the Statement of Work defines as included within the fixed fee. Unless otherwise agreed to by the parties in writing, any and all deliverables that Customer requests that fall outside the Statement of Work or are otherwise not expressly included within such fixed fee payment schedule will be provided on a time and materials basis at simPRO’s standard rates then in effect.
Customer shall pay simPRO for the Professional Services in accordance with the payment terms set forth in the applicable Statement of Work. Licensor shall invoice Customer for all such fees when due, which shall be paid by the Customer within thirty (30) calendar days of receipt.
Licensor shall be entitled to reimbursement from Customer for all documented, reasonable, out-of-pocket expenses incurred in connection with the provision of Professional Services under this Agreement, including, without limitation, travel, lodging, meals and transportation. Licensor shall provide estimates of such expenses in each Statement of Work. Such expenses are to be billed to Customer in simPRO’s invoices as they are issued, and are to be paid by Customer accordingly. Any expenses in excess of five hundred dollars ($500) shall require pre-approval by Customer.
Unless otherwise indicated therein, all Statements of Work may be terminated by either party if the other breaches a material term of the Statement of Work or this Agreement and such breach is not cured within fifteen (15) calendar days’ notice.
Upon termination of any Statement of Work, simPRO shall cease all work being performed thereunder and issue Customer a final invoice. Termination of a Statement of Work shall not eliminate Customer’s obligation to pay for time or deliverables incurred or performed prior to termination. In the event that Customer terminates a fixed fee Statement of Work before deliverables are completed but after they have been commenced by simPRO, such Statement of Work shall be converted to a time-and-materials Statement of Work for such commenced but incomplete deliverables, and simPRO shall invoice Customer for the reasonable time incurred in connection with such incomplete deliverables.
Customer shall be obligated to pay the amounts identified in the Order Form, at the times identified in the Order Form. If Statements of Work are executed, Customer shall pay the fees in the Statement of Work at the times identified therein, or if no time is identified therein, within thirty (30) days of receipt of an invoice from simPRO for said fees. Fees are exclusive of applicable tax, which shall be Customer’s responsibility.
Licensor may use a third-party payment processor (the “Payment Processor”) to charge Customer through an online account for use of the Software. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Licensor is not responsible for error by the Payment Processor.
Customer agrees to pay simPRO, through the Payment Processor, all charges for purchases made by Customer, and Customer authorizes simPRO, through the Payment Processor, to charge Customer’s chosen payment provider or method (your “Payment Method”).
If Customer wishes to cancel, upgrade or downgrade its subscription, it may do so at any time through Customer’s account. Any charges incurred prior to cancellation or downgrade are non-refundable. If Customer upgrades its subscription, Customer will be charged the difference in its current subscription and the upgraded subscription at that time, and Customer will be charged the price for the upgraded subscription on an ongoing basis until cancellation. If Customer downgrades its subscription, it will be charged the reduced price at the beginning of the next term.
Licensor will automatically invoice and charge Customer’s Payment Method monthly on the anniversary of the Commencement Date. If Customer purchases a subscription, it may result in recurring charges to Customer’s Payment Method, and Customer agrees that simPRO may charge such amounts until such a time as Customer’s subscription expires or you cancel the subscription, depending on the subscription type. SIMPRO MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY SIMPRO) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE SIMPRO REASONABLY COULD ACT.
Customer’s account will be considered delinquent (in arrears) if payment in full is not successful when a charge is initiated. Unless specified in an invoice, amounts due are exclusive of all applicable taxes, levies, or duties, and Customer will be responsible for payment of all such amounts. If Customer believes that any specific charge under this Agreement is incorrect, in order to obtain a credit, Customer must contact simPRO in writing within thirty (30) days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final.
In addition to other applicable remedies, simPRO reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate this Agreement if Customer’s Payment Method is declined or fails and Customer’s 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 attorneys’ fees and court costs.
Customer agrees that simPRO may monitor Customer’s and its Users’ use of the Software and collect and use data and related information, including but not limited to information about Customer’s and its Users’ use of the Software, which may be gathered periodically to ensure compliance with this Agreement, to study and improve the Software, to facilitate the provision of updates, product support and to provide the services under this Agreement. Aggregated statistical data will be the property of simPRO. Furthermore, simPRO may communicate with Customer and its Users of the Software regarding the Software and its functions, and for other simPRO needs.
The Software is a productivity tool, not a backup system. Although simPRO may provide you with copies of Customer Data from time to time, Customer understands that it is Customer’s responsibility to back up its Customer Data in the manner and at intervals of its choosing, and that simPRO does not have the obligation to maintain copies or backups of Customer Data.
Third Party Services
Customer acknowledges that it may require and use third party products and/or services in relation to this Agreement (“Third Party Services”). Customer acknowledges and agrees that Third Party Services are not provided by simPRO and that simPRO provides no warranty and accepts no liability in relation to Third Party Services. Any referral for Third Party Services that may be made by simPRO is provided for the convenience of the Customer only and shall not constitute any warranty or guarantee of any kind from simPRO. If Customer elects to use Third Party Services, Customer understands and agrees that there may be additional terms and conditions in relation to Third Party Services.
Licensor will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any copyright, patent, trademark, or misappropriation of a trade secret by the Hardware or Software (other than that due to Customer Content, Customer Data or any modifications or alterations of the Hardware or Software). In case of such a claim, simPRO may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Software or Hardware with non-infringing versions, or if it deems such remedies not practicable, simPRO may terminate this Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Software and Hardware not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
Customer will defend, indemnify, and hold simPRO (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data, Customer Content or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; (ii) arising out of or related to a breach or alleged breach of this Agreement; or (iii) arising out of claims relating to Customer or its Users’ use of the Software in violation of the law.
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. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
Disclaimers and Limitations
TO THE EXTENT PERMITTED BY LAW, AND SUBJECT TO CLAUSE 13.2 AND THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE, HARDWARE AND ALL SERVICES SUPPLIED BY SIMPRO ARE PROVIDED “AS IS”, WITHOUT ANY FURTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED,. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SOFTWARE, HARDWARE OR THE MATERIALS GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. SIMPRO DOES NOT WARRANT THAT USE OF THE SOFTWARE OR HARDWARE WILL BE ERROR-FREE OR UNINTERRUPTED.
Nothing in this Agreement shall exclude any condition, warranty or guarantee 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.
The liability, if any, of simPRO arising from the breach of any condition, representation or warranty not excluded shall at the option of simPRO be limited to and completely discharged by any one or more of the following:
If the liability relates to the supply of goods – the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired.
If the liability relates to the supply of services – the supplying of the services again, or the payment of the cost of having the services supplied again.
Except with regard to Customer’s payment obligations and with regard to either party’s indemnification obligations, in no event will either party’s aggregate liability exceed the license fees due for the twelve (12) month period measured by the monthly payment obligation at the time of the event or circumstance giving rise to such claim. In no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
Neither party will use the other party’s Confidential Information except 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 employees, confidential advisors, or subcontractors 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 Section will survive for as long as applicable information meets the definition of Confidential Information.
Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. Notwithstanding the foregoing, nothing herein shall require a party to remove or delete the other party’s Confidential Information from its long term backup storage, provided that any such retained information shall remain subject to the confidentiality obligations of this Agreement.
In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will, where permitted by law, give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
Term and Termination
The Term commences on the Acceptance Date. Billing of monthly license fees will start on the Commencement Date. The initial term of this Agreement (“Initial Term”) will begin on the Acceptance Date and will end at the conclusion of the period identified in the Order Form. This Agreement will automatically be extended for successive periods of thirty (30) days (each a “Monthly Term”, and together with the Initial Term, the “Term”) beginning at the end of the Initial Term, unless either party provides notice of termination to the non-terminating party not less than thirty (30) days before the end of the Initial Term or current Monthly Term, as applicable. Applicable pricing, including monthly minimum fees, will continue unchanged from the previous term unless simPRO notifies Customer of changes in pricing at least thirty (30) days prior to the expiration of the Initial Term or current Monthly Term.
Licensor, in its sole discretion, may suspend or terminate Customer’s usernames and passwords, accounts, or use of the Software and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within ten (10) business days of notice of such breach.
Customer may terminate this Agreement at any time upon sixty (60) days’ notice to simPRO, for any reason or no reason, provided, however, that Customer shall remain responsible for all fees remaining in the Term. Licensor may terminate this Agreement without cause on sixty (60) days calendar notice. If simPRO terminates without cause, no future fees shall be due and simPRO shall issue a pro-rata refund of any fees collected covering a period that post-dates the effective date of termination.
Notwithstanding the foregoing, simPRO may update this Agreement from time to time, with such updates being binding on Customer fifteen (15) days after being made available to Customer. If Customer does not agree to such updated terms, it must notify simPRO within said fifteen (15) day period of time , and upon such notice, Customer shall be considered to terminate this Agreement effective immediately and simPRO shall issue a pro-rata refund of any fees collected covering a period that post-dates the effective date of termination. If Customer does not notify simPRO of a rejection of the updated terms within said fifteen (15) day period of time, Customer shall be considered to accept such updated terms.
Sections 1, 2, 5 and 9-17 shall survive any termination or expiration of this Agreement.
If a dispute arises out of or relating to this Agreement, including with regard to its existence, validity or termination (“Dispute”), the parties agree to follow the procedures set out in this clause.
Neither party may commence legal proceedings in relation to a Dispute unless the parties have complied with the requirements of this clause. However, nothing in this clause prevents a party from seeking urgent injunctive relief or similar interim orders from a Court.
If a party (“Complainant”) considers that a Dispute has arisen, and the amount, value or damage sought to be recovered by the Complainant does not exceed the amount of fifty thousand Australian Dollars ($50,000.00), then the Complainant must refer the Dispute for mediation in accordance with this clause. If the amount, value or damage sought to be recovered does exceed the said amount, then the Complainant must refer the Dispute for arbitration in accordance with this clause.
If mediation is required by this clause, then the mediation shall be administered by the Australian Disputes Centre (ADC) in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred. The terms of the said Guidelines are incorporated into this Agreement by reference.
If arbitration is required by this clause, then the arbitration shall be conducted in accordance with the Commercial Arbitration Act 2013 (Qld) and the District Court is to have jurisdiction under that Act.
The parties agree that any mediation or arbitration shall be conducted in Brisbane, Queensland.
Each of the parties shall keep the proceedings and any and all transcripts, statements, documents, discovery, correspondence and all other non-public information produced or otherwise disclosed in connection with any such mediation or arbitration confidential.
This clause applies to the extent that this Agreement provides for a Security Interest for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPSA”). Any term in this clause that is not otherwise defined in this Agreement shall have the meaning defined by the PPSA. In this clause, “PPSR” means the Personal Property Securities Register established by the PPSA.
The parties agree that this Agreement is a Security Agreement and that simPRO’s interest in the Hardware is a Security Interest which includes and attaches to all Proceeds of any kind.
The Customer consents to simPRO effecting a registration on the PPSR (in any manner simPRO considers appropriate) in relation to any Security Interest arising under or in connection with this Agreement. The Customer must do anything (such as obtaining consents and signing documents) which simPRO requires for the purposes of:
Ensuring that simPRO’s security interest is enforceable, perfected and otherwise effective to the fullest extent under the PPS Law;
Enabling simPRO to gain first priority for its security interest; and
Enabling simPRO to exercise rights in connection with the security interest.
The Customer waives its right to receive any notice under the PPSA (including notice of a verification statement or financing change statement) unless the notice is required by the PPSA and cannot be excluded. For the avoidance of doubt, notices or documents required to be given to the Customer for the purposes of the PPSA must be given in accordance with the PPSA.
The Customer must not create, purport to create or permit to be created any Security Interest in the Hardware or in its rights under this Agreement.
Choice of Law; Jurisdiction. 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 the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
Notice. Licensor may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by post or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first post or sending by courier) or 12 hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to simPRO by e-mail to email@example.com. Such notice will be deemed to have been given 12 hours after sending, or, if earlier, when received. A party may, by giving notice, change its applicable address, email, or other contact information.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and simPRO as a result of this Agreement or use of the Service.
No Waiver. The failure of simPRO to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by simPRO in writing.
Force Majeure. Except for the payment by Customer, 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, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
Assignment. Except for an assignment to a parent or subsidiary, this Agreement may not be assigned by either party without the prior written approval of the non-assigning party, provided that simPRO may assign this agreement to (i) an affiliate of simPRO, (ii) an acquirer of all or substantially all of simPRO’s assets involved in the operations relevant to this Agreement; or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.
Entire Agreement. This Agreement, together with any applicable Schedule(s), comprises the entire agreement between Customer 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. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.
By signing the Order Form, or clicking the “I Agree” button, as applicable, Customer agrees to this Agreement.
Service Level Schedule
Service Level: Subject to the exclusions below, simPRO shall ensure that the Software has no less than 99.5% Uptime (as defined herein). “Uptime” means the Software is operational and is available to communicate with the internet in simPRO’s server location (which may be at a co-location facility).
Remedy: If the level of Uptime is not provided, as Customer’s sole and exclusive remedy, Customer will be entitled to a credit (subject to the applicable procedures in this Agreement) in accordance with the schedule below. Credits may only be used towards future invoices from simPRO, and shall not entitle Customer to a cash refund of any kind, even if the Agreement is terminated or expires before use of all of Customer’s credits.
|Uptime Level||Available Credit|
|99.0%-99.5%||Credit equal to 6% of monthly fees|
|99.0%-98.5%||Credit equal to 7% of monthly fees|
|98.5%-98.0%||Credit equal to 8% of monthly fees|
|98.0%-97.5%||Credit equal to 9% of monthly fees|
|Below 97%||Credit equal to 10% of monthly fees|
This credit does not apply to the extent that the failure to achieve the Uptime is due or relates to: (a) scheduled maintenance or downtime, (b) any modifications or alterations of the Software made by any individual or entity other than simPRO or its authorized agents; (c) any violation of the Agreement by Customer or it’s Users; (d) any unavailability that cannot be reasonably recreated by simPRO; (e) Customer’s failure to comply with the documentation published for the Software; (f) any third party software; (g) the Public Circuit (as defined below); (h) failures due to Force Majeure events; and/or (i) Customer’s or its Users’ inability to access the Software due to problems with software, hardware, telecommunications, or networking equipment located in Customer’s or its Users’ own facilities, including internet connection. “Public Circuit” means the third party provided circuits, overland and/or submarine cabling, and other connectivity infrastructure from a point of demarcation starting immediately after the ingress/egress router or similar appliance at Customer’s or its User’s site to the point immediately before the ingress/egress router or similar appliance at the facility used by simPRO to host the Software.
All capitalized terms used herein shall have their definitions from the Agreement of the “Definitions” section below.
Support Services consist of (a) Account Management, (b) Upgrades, (c) Error Correction, and (d) Feature Requests.
Licensor may assign a Customer Success Manager to serve as Customer’s point of contact. The Customer Success Manager will be available to answer Customer’s questions and advise on how to get the most value from simPRO’s service. Named contacts from Customer may contact the Customer Success Manager via email and phone during simPRO’s business hours.
During the Term, if simPRO releases any Upgrades to the Software, it shall, pursuant to a mutually agreed-upon schedule, make available and install such Upgrades in the Hardware and Software being used by Customer. Notwithstanding the foregoing, nothing herein shall require simPRO to release Upgrades to the Software. All Upgrades shall be considered within the definition of Software under the Agreement, and licensed pursuant to the terms of the Agreement.
All Errors shall be reported to simPRO by emailing [EMAIL] or by submitting a ticket through the Support Center. Licensor shall make its best efforts correct any Error reported by Customer in accordance with the priority level reasonably assigned to such Error by simPRO.
Priority 1 Errors – simPRO shall (i) provide an Initial Response within two (2) business hours (ii) initiate Management Escalation immediately; and (iii) provide Customer with a Status Update within two (2) hours if simPRO cannot resolve the Error.
Priority 2 Errors – simPRO shall (i) provide an Initial Response within four (4) business hours; (ii) initiate Management Escalation within twelve (12) hours; (iii) provide Customer with a Status Update within twenty-four (24) hours if simPRO cannot resolve the Error.
Priority 3 Errors – simPRO shall (i) provide an Initial Response within one (1) business day (ii) initiate Management Escalation within three (3) business days (iii) provide Customer with a Status Update within three (3) business days if simPRO cannot resolve the Error.
If simPRO believes that a problem reported by Customer may not be due to an Error in the Software, simPRO will so notify Customer. At that time, Customer may (1) instruct simPRO to proceed with problem determination at Customer’s expense as set forth below, or (2) instruct simPRO that Customer does not wish the problem pursued at its expense. If Customer requests that simPRO proceed with problem determination at its expense and simPRO determines that the error was not due to an Error, Customer shall pay simPRO, at simPRO’s then-current and standard consulting rates for all work performed in connection with such determination, plus reasonable, out-of-pocket related expenses actually and directly incurred therewith. Customer shall not be liable for (i) problem determination or repair to the extent problems are due to Errors in the Software; or (ii) work performed after Customer has notified simPRO that it no longer wishes work on the problem determination to be continued at its possible expense (such notice shall be deemed given when actually received by simPRO). If Customer instructs simPRO that it does not wish the problem pursued at its possible expense or if such determination requires effort in excess of Customer’s instructions, simPRO may, at its sole discretion, elect not to investigate the error with no liability therefor. If Customer requests that simPRO proceed with problem determination at its expense and simPRO determines that the error was due to an Error, then simPRO shall be responsible for the cost of any such work.
Customer may submit requests for new features through its Success Manager, and if acceptable, simPRO shall be engaged and performed pursuant to a Statement of Work under the Agreement. All new features shall be considered within the definition of Software under the Agreement, and licensed pursuant to the terms of the Agreement. Licensor will inform customer, using commercially reasonable efforts, of the status of the development of the requested feature. If simPRO does not plan to build the requested feature, or if it plans to build the feature but on a timeline that is not acceptable to Customer, simPRO may, at its discretion, offer Customer the option to accelerate the development of the feature for a cost. Costs for accelerated feature development will depend on the feature being developed, and may include time, materials, and licensing fees and shall be previously approved by Customer.
Licensor shall have no obligation to support or provide maintenance with respect to or in the case of: (i) altered or damaged Software or Hardware by a party other than simPRO; (ii) problems with the Hardware or Software caused by Customer’s negligence, abuse or misapplication, or unauthorized use of Software other than as specified in the simPRO’s user manual or as approved by simPRO; (iii) other causes beyond the control of simPRO. Licensor shall have no liability for any changes in Customer’s hardware or software systems that may be necessary to use the Services due to a Workaround or maintenance.
“Business Hours” are from 9 a.m. to 9 p.m., Eastern Standard Time, Monday through Friday, excluding holidays.
“E-mail support” means ability to make requests for technical support assistance by e-mail at any time (with reasonable efforts by simPRO to respond within one business day) concerning the use of the then current release of the Software.
“Initial Response” means the first contact by a Support Engineer after the incident has been logged and a ticket generated.
“Management Escalation” means, if the initial Workaround or Fix does not resolve the Error, notification of simPRO management that such Errors have been reported and of steps being taken to correct such Error(s).
“Priority 1 Error” means an Error that renders the Software completely inoperative E.g. Customer or Users cannot access the Service due to unplanned service downtime.
“Priority 2 Error” means Customer or Users can access the Software, however one or more significant features are unavailable.
“Priority 3 Error” means any other error that does not prevent the Customer or Users from accessing a significant feature of the Software.
“Error” means a Priority 1 Error, Priority 2 Error and Priority 3 Error.
“Status Update” means if the initial Workaround or Fix cannot resolve the Error, notification of the Customer regarding the progress of the Workaround or Fix.
“Upgrades” means, other than routine bug fixes and updates, additional software added to the Software that provides new functionality or modules to the Software.
“Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of the Software.