These Terms of Service, as amended from time to time, together with any other terms, agreements and policies referenced herein (which constitute an integral part hereof) (these "Terms") constitute a legally binding agreement between the Sima Analytics entity set forth in Section 17.1 below (the "Company"), and the customer executing or otherwise accepting the Order Form which refer to these Terms (respectively, the "Customer" and the "Order Form"). (each of Customer and Company shall be referred to as a "Party" and collectively as "Parties").
These Terms govern the Customer and its Users (as defined below) use and access of the Company's Service (as defined below) in a Software-as-a-Service subscription model. The Order Form may be completed and entered into in various ways, including online form, in-product screen, marketplace approval or an offline form delivered by Customer to the Company, including via on-line submission, mail, email or any other electronic or physical delivery mechanism.
Subject to the terms and conditions of these Terms, Company hereby grants Customer and its Users a limited, non-transferable, non-exclusive, non-assignable and non-sub-licensable right to use and access the services referred to in the Order Form (the "Service") solely for Customer's internal operations (the "Purpose"). The foregoing right is subject to the restrictions, set forth in Section 7.2 below, which restrictions, for the avoidance of doubt, are in addition to, and without derogating from, any other restrictions and limitations set forth in these Terms and applicable laws and regulation.
The Company may change or update the Service at any time, including the availability of any feature, content or database and the Company may impose limitations or restrictions on certain features and services or on the access to the Service (or any part thereof), without notice or liability, unless the Company considers certain change to be material, in which case the Company will notify Customer by posting an announcement on the Company's website, through the Service or by email. Changes are not expected to have adverse effect on the Customer's use of the Service, however, in case of a material adverse effect on the Customer's use, the Company and the Customer shall negotiate in good faith the ramifications of such change. The Company may offer alternative or additional features to certain Customers, that may not be offered to others.
The Company may offer, from time to time, some or all of its services on free trial versions ("Trial Service"). The term of the Trial Service shall be as set forth in the Order Form, unless modified or terminated earlier by either party, for any reason or for no reason. The Company reserves the right to modify, cancel and/or limit the Trial Service at any time and without liability, at its sole discretion and without the need for written prior notice.
The Company may offer, from time to time, certain services in an alpha or beta versions (the "Pre-Released Services") and will use best endeavors to identify the Pre-Released Services as such. Pre-Released Services are services that are still under development, and as such they may be incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual.
The Trial Services and Pre-Released Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of Trial Services and Pre-Released Services (i) Trial Services and Pre-Released Services are licensed hereunder on as "As-Is" "As Available" basis, with no warranties, express or implied, of any kind; (ii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF COMPANY, ITS AFFILIATES OR ITS THIRD-PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS, EXCEED US $50. The Company makes no promises that any Trial Service and/or Pre-Released Services will be made available to the Customer and/or generally available.
The Customer will designate users authorized to use the Solution on its behalf (each, a "User"), up to the number of permitted Users set forth in the Order Form. Accounts for each user will be generated by the Company, per the details provided by the Customer (each an "Account"). The Accounts are personal and may not be shared. The Company reserves the right to refuse a User's registration or to block User's access to the Service, in case of suspected violation of applicable law or breach of this Agreement.
As part of the registration process, the Customer may be required to provide the Company with certain personal information regarding its Users (including, name, phone number, organizational or personal e-mail address, etc.) and to select a password. Customer is responsible to obtain the required consents for providing such personal information and to provide the Company with accurate, complete, and updated registration information.
Customer shall notify the Company immediately of any breach of security or unauthorized use of an Account known to Customer. Customer is solely responsible and liable for the activity that occurs in the Accounts and for the use of the Service by its Users and for any losses, damages, liability and expenses incurred by the Company or a third party, due to any unauthorized use of the Account by either Customer or any other User or third party on Customer's behalf. Customer shall (i) not allow anyone other than Customer's Users to access and use the Accounts; (ii) keep, and ensure that Users keep all Account login details and passwords secure at all times; (iii) ensure that the login details for each User may only be used by that User, and that multiple people may not share the same login details; (iv) update the Company of any change in its personal, requiring the removal or re-assignment of an Account; and (v) ensure the protection of Users' privacy and compliance with applicable law.
5.1. Customer shall provide Company with all reasonable cooperation in relation to these Terms, and shall comply in a timely and efficient manner, and be responsible and liable for the Users' compliance with the terms of these Terms, the Order Form and all applicable laws and regulations. Without derogating from the aforementioned, Customer shall provide the Company with the resources and fulfill the responsibilities set forth in the Order Form. In the event of any delays by the Customer, Company may adjust any agreed timetable or delivery schedule as reasonably necessary.
5.2. Customer is solely responsible for obtaining, maintaining and operating the User's devices (including, without limitation, smartphones, tablets and computers), and any related equipment, hardware, software, security systems and measures and ancillary services, and internet connection (the "Customer's Infrastructure") necessary in order to access and use the Service.
5.3. Customer is responsible for all acts or omissions of Users and their use of the Service. The Company shall not have any liability towards Users, and the Customer is solely responsible for responding to any claims, requests and demands by the Users or any other third party related to the Customer. Company will, to the extent allowed by law, promptly notify Customer of its receipt of a User or such related third party claim, request or demand and comply with Customer's reasonable requests regarding the handling of such claim, request or demand.
6.1. While using the Service, certain data may be uploaded or transferred to the Service to be processed by the Service on the Customer's behalf (the "Customer Data"). As between the Customer and the Company, all rights in the Customer Data shall remain with Customer. Customer hereby grants the Company and its Sub-processors (as defined below) an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid, sub-licensable right and license to access, use, process, copy, download, store, distribute and display the Customer Data, for the purpose of maintaining, developing and providing the Service and as required to resolve technical and security problems or otherwise as permitted by these Terms or in writing by Customer.
6.2. Customer represents and warrants that (i) Customer owns or has all the necessary licenses, rights, consents, approvals, permissions, power and authority, necessary to grant the Company the aforementioned right and license and to authorize the Company and its Sub-processors to access, use, process, copy, download, store, distribute and display the Customer Data, without infringing or violating any copyrights, privacy rights, publicity rights, trademarks or any other contractual, intellectual property or proprietary of any third party; (ii) any Customer Data and any use thereof do not and shall not violate any applicable laws, including those related to data privacy or data transfer and export or any policies and terms governing such Customer Data; and (iii) no sensitive data that is protected under a special legislation and requires unique treatment (such as protected health information or credit, debit or other payment card data) will be transferred to the Service.
6.3. Other than Company's security and data protection obligations expressly set forth in Section 8 herein, Company assumes no responsibility or liability for Customer Data, and Customer will be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it. It is hereby clarified that the Company shall not monitor and/or moderate the Customer Data and there shall be no claim against the Company of not acting so.
All right, title and interest in the Service, including without limitation, any content, materials, software, know-how, data files, documentation, code, SDK, API, design, text, media, methodologies, artwork, names, logos, trademarks and services marks (excluding Customer Data), any and all related or underlying technology and any updates, new versions, modifications, improvements, developments or derivatives thereof, belongs to the Company and its licensors and these Terms do not convey to the Customer or the Users any interest in or to the Service, except for a limited right of use as set forth herein, terminable in accordance with these Terms.
Customer and its Users may not, and may not permit or aid others to: (i) use the Service for any purpose other than the Purpose; (ii) copy, modify, alter, translate, emulate, create derivative works based on, or reproduce the Service; (iii) give, publish, sell, distribute, assign, pledge or transfer (by any means), display, sublicense, rent, lease or otherwise share the rights granted under these Terms to any third party, including, but not limited to Customer's affiliates, or use the Service in any service bureau arrangement; (iv) reverse engineer, de-compile, decrypt, revise or disassemble the Service or any part thereof, or extract source code from the object code of the Service; (v) access or use the Service in order to build a competing product or service or for benchmarking purposes; (vi) bypass any measures the Company may use to prevent or restrict access to the Service, and/or take any action intended to circumvent or disable the operation of any security feature or measure of the Service; (vii) access the Service or Company's systems via any means other than through the interface provided by the Company, or via automated means, including by crawling, scraping, caching or otherwise; (viii) use the Service in any manner that is illegal or not authorized by these Terms; (ix) take any action that imposes or may impose an unreasonable or disproportionately large load on Company's (or Company's service providers') infrastructure; (x) interfere or attempt to interfere with the integrity or proper working of the Service; (xi) remove, deface, obscure, or alter Company's or any third party's identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service; (xii) provide any third party access to the Service; or (xiii) provide public access to results obtained by the Service. Customer will be solely and fully liable for any losses, damages, liability and expenses incurred by Company or a third party due to any unauthorized use of the Service by the Customer or by any of its Users or third party on behalf of the Customer.
Customer shall notify the Company of any and all design or functional errors, anomalies, and problems associated with the Service discovered or brought to its attention by its Users, and may provide the Company suggestions, comments or any other feedback regarding the Service (the "Feedback"). The Company may use any Feedback at its sole discretion, free from any right of the Customer or any third party and without any obligation towards Customer. Customer hereby assigns to Company all right, title, and interest worldwide in the Feedback and any intellectual property rights related thereto. Customer shall not provide the Company with any Feedback which infringes any third party's right.
In the event that the Company believes that the Service, or any part thereof, may infringe intellectual property rights of third parties, then the Company may, in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Service; (ii) replace or modify the allegedly infringing part of the Service so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if the Company determines that the foregoing remedies are not reasonably available, then the Company may require that use of the (allegedly) infringing Service (or part thereof) shall cease and in such an event Customer shall receive a prorated refund of any Fees paid for the unused portion of the Subscription Term (or the respective part thereof).
The use of the Service by the Customer and its Users is governed by the Company's Data Processing Addendum available at: Data Processing Addendum (the "DPA"). The DPA shall constitute an integral part of these Terms.
The Company may collect, monitor and freely use Anonymous Information (as defined below), inter alia to provide, develop, maintain, improve, train, demonstrate and market the Service and the underlaying models. "Anonymous Information" means data and information which does not enable identification of an individual, such as technical data, metadata, aggregated data and analytic information.
Customer acknowledges that the Service is hosted and made available by certain sub-processors of the Company (the "Sub-processors"). The Company may remove, add or replace its Sub-processors from time to time, at its sole discretion.
The Service may include third-party "open source" or "Free Software" components that are subject to third-party terms and conditions ("Third-Party Terms"). If there is a conflict between any Third-Party Terms and the terms of these Terms, then the Third-Party Terms shall prevail, but solely in connection with the related third-party component.
The Service may integrate with, and contain links to, other third-party services, and may enable Customer and its Users to access, engage and procure certain services and products provided by third parties (the "Third-Party Services"). Customer acknowledges and agrees that regardless of the manner in which such Third-Party Services may be presented or offered to Customer, Company does not endorse any such Third-Party Services or shall be in any way responsible or liable with respect to any such Third-Party Services. BY ACCESSING AND/OR USING THE THIRD-PARTY SERVICES, CUSTOMER ACKNOWLEDGES THAT ITS ACCESS AND USE OF THE THIRD-PARTY SERVICES ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD-PARTY SERVICES ARE IN COMPLIANCE WITH CUSTOMER'S REQUIREMENTS AND ANY APPLICABLE LAW OR REGULATION.
The Solution incorporates artificial intelligence and large language model services or features (the "AI Features"). Some of the AI Features are currently provided in reliance on third party commercially available artificial intelligence technology. As AI Features may be unstable and unpredictable, Vendor bears no responsibility or liability for the performance, accuracy or reliability of the AI Features.
The Service is provided on a subscription basis for the term specified in the Order Form (the "Subscription" and the "Subscription Term"). During the Subscription Term Customer shall pay the Company the applicable fees set forth in the Order Form(s) (the "Fees"). Unless expressly indicated otherwise, Fees are stated in US dollars. Customer hereby authorizes the Company, either directly or through the Company's payment processing services, to charge the Fees via Customer's selected payment method, upon the due date. Unless expressly set forth herein, the Fees are non-cancelable and non-refundable. The Company reserves the right to change the Fees at any time, upon notice to Customer, provided that any increase shall only become effective upon the end of the then-applicable Subscription Term.
In order to ensure that Customer will not experience any interruption or loss of services, Customer's Subscription shall automatically renew by default, unless canceled by either the Company or the Customer at least 30 days prior to its expiration, for a renewal period equal in time to the original Subscription Term (excluding any renewal period) at the then applicable Fees.
Customer may upgrade its subscription plan by expanding, including, without limitation, by adding more sites and data sources in accordance with the pricing presented in the Order Form, or any other upgrade available, during the Subscription Term by providing Company with written notice specifying the requested upgrade (collectively, an "Upgrade"). Any such Upgrade is deemed as a new purchase, and therefore the Subscription Term of the upgraded plan will restart upon the Upgrade in accordance with the terms of the upgraded plan or tier, and Customer will be billed by Company for the additional fees due in respect of such Upgrade. Certain Upgrades may require the Company's prior written approval, at the Company's discretion.
The Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties (the "Taxes"), except for income tax imposed on the Company. If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to the Company, Customer shall promptly notify the Company in writing and the Company shall make reasonable efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax shall be "grossed up" and added on top of the Fees payable by Customer.
The Fees set forth in each Order Form are final. Customer shall pay each invoice according to the payment terms set forth in the Order Form. Unless otherwise set forth in the Order Form, the Fees shall be paid annually, in advance, upon receipt of an invoice. All Fees are non-cancelable and non-refundable, unless required otherwise by mandatory law. Delinquent payments may bear compounded interest, as of the payment due date and until paid in full, at a rate equal to the lower of: (i) 1.5% per month, or (ii) the highest rate permitted by law. The aforesaid shall not derogate from any other right or remedy to which the Company may be entitled. Customer will be responsible for all reasonable expenses (including reasonable attorneys' fees) incurred by the Company in collecting any payment. The Service shall be made available to Customer for the applicable Subscription Term only following receipt by the Company of the amounts due by Customer. Payment in installments shall not imply that the Customer may terminate the Subscription during the Subscription Term prior to the payment of any installment.
A breach of obligations by either party hereto which is not cured within 10 days from receiving notice thereof, shall entitle the non-breaching party to immediately terminate these Terms by written notice. Notwithstanding, if a party files for petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes or becomes subject to any action in furtherance of any of the foregoing, the other party will be entitled to terminate these Terms immediately by written notice.
Company may terminate or suspend Customer's use of and access to the Service (or any part thereof) immediately, without prior notice or liability, in each of the following events: (i) the Company believes, in its sole discretion, that Customer or any third party is using the Service in a manner that may impose a security risk, may cause harm to the Company or any third party, and/or may create any liability to the Company or any third party; or (ii) if the Company believes, in its sole discretion, that Customer or any third party is using the Service in breach of Section 7.2. The aforementioned rights are in addition to any rights and remedies that may be available to the Company in accordance with these Terms or under any applicable law.
Customer may terminate its Subscription to the Service by cancelling its Subscription, whereby termination will take effect at the end of the then-current Subscription Term and shall not derogate from Customer's obligation to pay the applicable Fees for the Subscription Term.
Unless expressly indicated otherwise in these Terms, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Fees. Upon termination or expiration of these Terms, Customer's Subscription and all rights granted to Customer and the Users hereunder shall terminate, and Customer shall cease to have access to the Service and any Customer Data and shall remove any Service components from Customer's systems. Customer is solely responsible to export all available Customer Data prior to such termination or expiration, and following termination or expiration, the Company may delete the Customer Data without retaining any copy thereof. In addition, Customer shall return or destroy, at Company's choice, Company's Confidential Information (as defined below) then in Customer's possession and Customer shall have no claim against the Company in this regard.
All the provisions of these Terms which by their nature should survive termination (including, without limitation, confidentiality, ownership and intellectual property, warranty disclaimers, limitations of liability and indemnification) shall remain in full force and effect following termination thereof, for any reason whatsoever. Termination of these Terms shall not relieve Customer from any obligation arising or accruing prior to such termination or limit any liability which Customer otherwise may have to the Company or third parties.
For purposes of these Terms, the term "Confidential Information" shall mean any and all non-public business, product, technology and marketing data and information, whether written, oral or in any other medium disclosed or otherwise provided by either party (the "Disclosing Party") to the other party (the "Receiving Party"), that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include any information which the Receiving Party can prove: (a) is publicly available at the time of disclosure or subsequently becomes publicly available through no act or omission of the Receiving Party in breach of these Terms; (b) is already known to the Receiving Party at the time of disclosure; (c) is disclosed to the Receiving Party free from confidentiality obligations by a third party who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; or (d) was or is independently developed by the Receiving Party without use of or reliance upon the Confidential Information.
Receiving Party undertakes and warrants that: (i) it shall hold the Confidential Information of Disclosing Party in confidence and shall take all reasonable steps to safeguard and protect the Confidential Information including, without limitation, those steps that it takes to protect its own Confidential Information of a similar nature; (ii) it shall not disclose or otherwise provide any Confidential Information to any third party without the prior written consent of the Disclosing Party, except to those of its employees who have a need to know such Confidential Information for the purpose of fulfilling these Terms and provided that such employees are bound by written confidentiality obligations which are at least as restrictive as those contained herein; (iii) it shall not copy or use the Confidential Information for any purpose except to the extent required to perform its obligations, or exercise its rights, hereunder, whilst maintaining the Disclosing Party's interests; and (iv) if the Receiving Party is requested or legally compelled to disclose any Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, the Receiving Party shall make best efforts to provide the Disclosing Party prompt notice thereof, and, at the request and expense of the Disclosing Party, uses reasonable efforts to limit such disclosure to the extent requested. Receiving party's obligations with respect to Confidential Information shall expire seven (7) years from the date of termination or expiration of the last Subscription Term, unless under applicable law a longer period of protection applies.
Company reserves the right to access, read, preserve, and disclose any information that it obtains in connection with the Service as the Company reasonably believes necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce these Terms, including to investigate potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to Customer's support requests, and/or (v) protect the rights, property or safety of the Company, its users or the public.
THE COMPANY DOES NOT WARRANT, UNDERTAKE OR GUARANTEE THAT ANY INSIGHT, ACTION, RECOMMENDATION OR DECISION BY THE SERVICE WILL SATISFY CUSTOMER'S NEEDS OR WILL BE OPTIMAL UNDER THE CIRCUMSTANCES. NO ADVICE, ANALYSIS, DATA, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY OR IMPOSE ANY LIABILITY NOT EXPRESSLY STATED IN THESE TERMS. IN ADDITION, THE COMPANY DOES NOT ASSUME ANY LIABILITY WITH RESPECT TO RECOMMENDATIONS AND DECISIONS MADE BY THE SERVICE AND THE OUTCOME OF SUCH RECOMMENDATIONS AND DECISIONS. EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SERVICES IS SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE, REGARDING THE SERVICE AND CUSTOMER'S USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, SECURITY, COMPATIBILITY OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET CUSTOMER'S SPECIFIC REQUIREMENTS OR EXPECTATIONS, OR THAT ANY PROCESS, ACTION, INFORMATION OR ADVICE OBTAINED BY CUSTOMER AS A RESULT OF THE USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, EFFECTIVE, PROPER, LAWFUL OR OTHERWISE IN ACCORDANCE WITH THE CUSTOMER'S EXPECTATIONS.
WITHOUT DEROGATING FROM THE FOREGOING, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR: (I) ANY ERRORS, MISTAKES, OR INACCURACIES OF THE SOLUTION, (II) ANY UNAUTHORIZED ACCESS TO OR USE OF CUSTOMER'S SERVERS OR DEVICES AND ANY INFORMATION STORED THEREIN, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION, LOSS OR LEAK OF DATA OR OTHER COMMUNICATIONS, AND/OR (IV) ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE HOSTING, STORAGE OR TRANSFER OF SOFTWARE OR DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND THE PERFORMANCE OF ANY THIRD-PARTY COMMUNICATION, HOSTING OR STORAGE PROVIDER.
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
IN NO EVENT SHALL COMPANY, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, MEMBERS OR EMPLOYEES BE LIABLE UNDER ANY CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY: (I) SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES; (II) LOSS OF OR DAMAGE TO CUSTOMER'S SYSTEMS, DEVICES, DATA, INFORMATION, GOODWILL, PROFITS, SAVINGS, OR PURE ECONOMIC LOSS; AND/OR (III) THE FAILURE OF INDUSTRY STANDARD SECURITY MEASURES AND PROTECTIONS; AND/OR (IV) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; REGARDLESS OF (A) WHETHER COMPANY, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE; OR (B) THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT).
COMPANY'S AGGREGATE AND CUMULATIVE LIABILITY FOR ALL DIRECT CLAIMS, DAMAGES AND LOSSES (WHETHER IN CONTRACT, TORT OR OTHERWISE), IS LIMITED TO THE FEES PAID TO THE COMPANY FOR USE OF THE SERVICE IN THE SIX (6) MONTHS PRECEDING THE CAUSE OF THE CLAIM.
Without derogating from Company's rights under these Terms and under applicable law, Customer hereby agrees to defend and indemnify Company against any damages awarded against Company by a court of competent jurisdiction, or paid in settlement, in connection with (i) a third party claim, suit or proceeding that use of the Customer Data and any other content provided by Customer and/or the Users, or the use of the Service by the Customer and/or the Users infringes any right of a third party; and (ii) the use or misuse of the Solution by Customer, the Users or any third party using an Account.
Unless stated otherwise in the applicable Order Form, if Customer is a person residing in, or an entity incorporated in, the United States or in Canada, "Company" means Sima Analytics, Inc., a company duly incorporated under the laws of Delaware, having its registered address at 251 Little Falls Drive, 19808, Wilmington, Delaware, US; and if Customer is a person or an entity residing or incorporated elsewhere, "Company" means Sima Analytics Ltd., company registered under the laws of the state of Israel, company registration number 516858941, having its registered address at 45 Derech Haatzmaut St., Haifa, Israel.
The Service may be subject to Israeli, U.S. or foreign export controls, laws and regulations (the "Export Controls"), and Customer agrees and confirms that: (i) Customer is not located or uses, exports, re-exports or imports the Service (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) Customer is solely responsible for complying with applicable Export Controls which may impose additional restrictions, prohibitions or requirements on the use of the Service.
Customer acknowledges and agrees that the Company has the right to use Customer's name and logo to identify Customer as a customer of Company or user of the Service, on Company's website, marketing materials or otherwise by public announcements. Customer may revoke such right, at any time, by contacting Company at: Legal@opsima.com. The publication of any additional content related to the Customer's use of the Service (other than mere reference to the Customer as set forth above) shall require the Customer's prior approval (which may not be unreasonably withheld or delayed). Customer agrees that the Company will publish a case study on the Customer's use of the Service, subject to the Customer's approval of the content of the case study (which may not be unreasonably withheld or delayed).
Neither Company nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, pandemic, terrorism, and governmental action.
(i) If "Company" is Sima Analytics, Inc., these Terms shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to conflict of laws' provisions that would result in the application of the laws of any other jurisdiction and the parties hereto submit the exclusive jurisdiction to the competent courts in the State of Delaware; and (ii) If "Company" is Sima Analytics Ltd. these Terms shall be governed by and interpreted in accordance with the laws of the State of Israel, without regard to conflict of laws' provisions that would result in the application of the laws of any other jurisdiction. The parties hereto submit the exclusive jurisdiction to the competent courts of Tel Aviv, Israel. If applicable, to the fullest extent permitted by law, the parties waive the right to a jury trial with respect to any action arising under or relating to these Terms.
WHERE PERMITTED UNDER APPLICABLE LAWS, CUSTOMER AND COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both Customer and the Company agree, no arbitrator or judge may consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding.
The Parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third-party beneficiaries to these Terms.
The headings used in these Terms are for convenience only and shall in no case be considered in construing these Terms. The schedules and exhibits attached hereto are incorporated herein by this reference.
These Terms (and the other terms, agreements and policies referenced herein) constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior understandings of such Parties with regard thereto. These Terms cannot be modified, supplemented or rescinded except by a written instrument signed by all of the Parties to these Terms.
The Order Form entered into between the parties simultaneously with these Terms shall be deemed to incorporate the terms of these Terms. In the event an Order Form contains terms that purport to modify or supplement the terms of these Terms, then those Order Form terms shall have no force or effect, unless expressly agreed to in writing by both Parties. If there is any conflict or inconsistency between the terms of these Terms and the Order Form, these Terms shall prevail unless the Order Form specifically states otherwise, except in the event Customer provides an Order Form of its own in which case these Terms will prevail without any exclusions. In the event of any conflict or discrepancy by and among these Terms, its exhibits and any other document referred to herein, such conflict or inconsistency shall be resolved by giving precedence in the following order, unless explicitly indicated otherwise in writing, by the Parties:
Company may assign at any time any of its rights and/or obligations hereunder to any third party without Customer's consent. Customer may not assign any of its rights or delegate any obligations hereunder, in whole or in part without the prior written consent of Company, and any attempt by a Customer to do so shall be deemed null and void.
All notices or reports permitted or required under these Terms shall be made by personal delivery, by express courier service (such as FedEx or UPS) that requires proof of delivery, certified or by registered mail, return receipt requested, or by electronic mail, and shall be deemed effective (a) if mailed, 5 business days after mailing; (b) if made by personal delivery or sent by messenger or express courier service, upon delivery; and (c) if sent via electronic mail, upon transmission and electronic confirmation of receipt or (if transmitted and received on a non-business day) on the first business day following transmission and electronic confirmation of receipt.
In the event that a court of competent jurisdiction finds any provision of these Terms to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it valid, enforceable and legal.
The failure of the Company to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed by Company in writing.