Terms of Service

1. Acceptance of Terms

Simility is a big data analytics service developed, maintained, and owned by Simility, Inc. (“Simility,” “we,” “our,” or “us”). We have created the following Terms of Service to describe your and our respective obligations when using the Simility services (the “Services”). By accessing and using this website or the Services, you accept and agree to be bound by these Terms of Service. In addition, your use of the Services is subject to our Privacy Policy, which is hereby incorporated by reference into these Terms of Service, on behalf of yourself and anyone else you authorize to use your account (e.g., your employees, partners, subsidiaries, etc.). Simility may also offer other services that are governed by different terms of service. In such cases the other terms of service will be posted on the relevant service to which they apply. If you do not agree with these Terms of Service, do not use simility.com (the “Site”) or the Services.

2. Your Registration Obligations

In consideration of your use of the Site and the Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Services under the laws of the United States or any other applicable jurisdiction. You also agree to: (a) provide true, accurate, current, and complete information about yourself as prompted by Simility’s registration form (the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of Simility or the Services (or any portion thereof).

Your Simility customer account will be registered and managed by one or more account administrators (each, an “Administrator”) designated by you. Each Administrator may extend Simility customer account administration privileges to other persons within their organization. Non-Administrator users on your customer account are simply “Users.”

In these Terms of Service and other incorporated policies, “you,” “your,” and “Customer” refers to the company or other user registering for the Services. Throughout these Terms of Service, your responsibility is stated for various items. You should understand by these references that the person or entity who creates a customer account is responsible for all activity on that account. You are therefore financially and otherwise responsible for all activity on your Simility Customer account, whether such activity is by Administrators, Users, or unauthorized third persons. You are encouraged to safeguard your account as described in Section 5 below and to monitor all use of your account by your organization’s Administrators and Users.

Additionally, by signing up for an account, the person or entity registering for the Services is deemed to have consented to these Terms of Service on behalf of all Administrators and Users who use the Simility Customer account. If you are creating an account on behalf of a legal entity or other group of persons, you represent and warrant that you have the legal authority to bind such entity or group to these Terms of Service.

3. Simility Privacy Policy

Registration Data and certain other information about you and any of your authorized users are subject to our applicable Privacy Policy. You understand that through your use of Simility and the Services, you consent to the collection and use of this information, including the transfer of this information to the United States and/or other countries for storage, processing, and use by Simility and its affiliates.

4. Data Analytics Services

As part of our Services, you and your Administrators and Users have access to a platform for analyzing data related to your business.

You acknowledge that the Services cannot be guaranteed to be accessible from all locations and devices due to various technological, regulatory, or other restrictions.

You are responsible for obtaining access to Simility, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access Simility.

5. Security

You are responsible: (i) for any and all activities that may occur under your account and (ii) to maintain the confidentiality and security of your data and account password. You agree to notify us immediately if there has been an unauthorized use of your account or any other breach of security, and you shall be liable for fraudulent charges until such time as you have notified us to suspend any compromised account.

Notice of any security breaches may be sent to contact@simility.com.

6. Forbidden Activity

You agree not to use the Services in any illegal or abusive manner. You may not (and are not authorized to allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in Simility, the Services, or the Software. You further agree:

• Not to modify the Services or Software in any manner or form, nor to use modified versions of the Services or Software, including (without limitation) for the purpose of obtaining unauthorized access to Simility or the Services;
• Not to access Simility or the Services by any means other than through the interface that is provided by Simility for use in accessing Simility and the Services; and
• Not to reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purposes, any portion or use of, or access to, Simility or the Services.

7. Pricing and Billing

Your particular pricing and payment terms will be governed by the service agreement you signed with Simility. Any termination of your account or access to the Services due a breach of these Terms of Service will not relieve you of any obligation to pay any fees or other amounts owed to Simility, except to the extent otherwise specified by your service agreement with Simility.

8. Modifications to Simility

Simility reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, Simility or the Services (or any part thereof) with or without notice. You agree that Simility shall not be liable to you or to any third party for any modification, suspension or discontinuance of Simility or the Services (or any part thereof). Unless explicitly stated otherwise, any new features that augment or enhance the current Services, including the release of new Simility properties, shall be subject to these Terms of Service.

9. Term and Termination.

These Terms of Service apply from the date you create an account with Simility and continue to apply until your account and use of the Services is terminated by either of us. All sections of these Terms of Service that by their nature should continue (such as the “Governing Law and Jurisdiction” section) will survive termination.

You may terminate your Simility account, any associated email address, and access to Simility by submitting a termination request to Simility by phone at (650) 666-3285 or by email to contact@simility.com.

You agree that we may, without prior notice, immediately terminate, limit your access to or suspend your Simility account, any associated email address, and access to the Services for a breach of these Terms of Service or of your service agreement with Simility. Cause for such termination, limitation of access or suspension shall include, but not be limited to, (a) breaches or violations of these Terms of Service or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) discontinuance or material modification to Simility (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, (f) engagement by you in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with the Services. Further, you agree that all terminations, limitations of access and suspensions for cause shall be made in our sole discretion and that we shall not be liable to you or any third party for any termination of your account, any associated email address, or access to the Services.

Termination of your Simility account includes any or all of the following: (a) removal of access to all or part of the offerings within Simility, (b) deletion of your password and all related information, files, and content associated with or inside your account (or any part thereof), and (c) barring of further use of all or part of Simility or the Services.

10. Links

Simility may provide, or third parties may provide, links to other World Wide Web sites or resources. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

11. Intellectual Property

Subject to your compliance with these Terms of Service, Simility grants you a non-exclusive, revocable, non-sublicenseable, and non-transferable license to access and use the Site and the Services until the termination of your account by you or us. You acknowledge and agree that Simility, the Services, and any necessary software used in connection with Simility (the “Software”) are protected by copyrights, trademarks, service marks, patents and other proprietary rights and laws (the “Simility IP”). These Terms of Service and your use of the Site and Services does not transfer to you any Simility IP beyond your limited-term, non-exclusive license referenced herein, and all right, title and interest in and to Simility IP will remain solely with Simility. Except as expressly authorized by us, you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform, or create derivative works based on Simility, the Site, the Services, or the Software, in whole or in part.

All contents of the Site, including but not limited to, text, site design, images, data, and source code, are Copyright © 2015 Simility, Inc. All rights reserved. Any reproduction, distribution, retransmission, or publication of any of our copyrighted material is strictly prohibited without our express written consent.

You agree that all of Simility’s trademarks, trade names, service marks, logos, brand features, and product and service names are trademarks and the property of Simility (the “Simility Marks”). Without Simility’s prior permission, you agree not to display or use the Simility Marks in any manner.

All data you provide to Simility is your sole property. By using that data in connection with Simility, the Site, Services, or Software, you grant Simility a non-exclusive, royalty-free, transferable, perpetual, and irrevocable license to copy, use, modify, comply, analyze, and creative derivative works from such data. Simility will never be obligated to send you a copy of the data used in connection with Simility. You acknowledge and agree that all analyses, reports, or other works or work product created by Simility based on your data will belong solely to Simility, and you will have a non-exclusive license to use such work product shared by Simility with you for your own internal business purposes.

12. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF SIMILITY AND THE SERVICES IS AT YOUR SOLE RISK. SIMILITY AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SIMILITY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

SIMILITY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS MAKE NO WARRANTY THAT (i) SIMILITY AND THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) SIMILITY AND THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF SIMILITY AND THE SERVICES WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH SIMILITY AND THE SERVICES WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SERIVCES OR SOFTWARE WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF SIMILITY AND THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SIMILITY OR THROUGH OR FROM SIMILITY AND THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

13. Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT SIMILITY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SIMILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE SIMILITY AND THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (e) ANY OTHER MATTER RELATING TO SIMILITY.

WITHOUT EXCEPTION, YOU WILL ONLY BE COMPENSATED WHEN THE SERVICES FAIL TO MEET THE SERVICE COMMITMENT DESCRIBED IN YOUR SERVICE AGREEMENT WITH SIMILITY, AND THEN COMPENSATION WILL BE MADE ONLY IN THE MANNER DESCRIBED IN SUCH AGREEMENT.

14. Indemnification

You agree to defend, indemnify and hold Simility and its subsidiaries, affiliates, officers, agents, employees, partners, and licensors harmless from any and all claims, demands, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, made by you or any third party due to or arising out of your use of Simility or the Services, your provision to Simility of data for analysis, your use of Simility to analyze your data, your violation of these Terms of Service, or your violation of any rights of another.

You further represent and warrant that you are authorized to provide to us any data provided to Simility or analyzed using the Services and that doing so does not violate any applicable agreements, laws, regulations, or other government orders.

15. Notices

Simility may provide you with notices, including those regarding changes to these Terms of Service, by email, regular mail, SMS, MMS, text message, postings on Simility, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate these Terms of Service by accessing Simility in an unauthorized manner. Your agreement to these Terms of Service constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed Simility in an authorized manner.

Notices to Simility must be sent to the address mentioned in the invoice to Customer with a courtesy copy to Simility, Inc., 2555 Park Boulevard Suite 27, Palo Alto, CA 94306, Attn: Legal;  Email: contact@simility.com. All notices shall be in English.

You understand and agree that Simility may send you certain communications from Simility, such as service announcements, administrative messages, newsletters, and that these communications are considered part of Simility membership and you will not be able to opt out of receiving them.

16. International Use and Export And Import Compliance

Recognizing the global nature of the Internet, you agree to comply with all applicable laws and other local rules regarding online conduct and acceptable use of the Services. Transfer of or use of Simility or the Services and transfer, posting, and uploading of software, technology, and other technical data via the Services may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, you represent and warrant that you: (a) are not a prohibited party identified on any government export exclusion lists or a member of a government of any other export-prohibited countries as identified in applicable export and import laws and regulations; (b) will not transfer the Services or software, technology, and other technical data via the Services to export-prohibited parties or countries; (c) will not use the Services for military, nuclear, missile, chemical, or biological weaponry end uses in violation of U.S. export laws; and (d) will not transfer, upload, or post via the Services any software, technology, or other technical data in violation of U.S. or other applicable export or import laws.

17. Government Use

Use of the Services by the United States government or other governmental agencies shall be as “restricted computer software” or “limited rights data” as set forth in 48 CFR 52.227-14, or as “commercial computer software” or “commercial computer software documentation” under DFARS 252.227-7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/manufacturer is Simility, Inc., 2555 Park Boulevard Suite 27, Palo Alto, CA 94306.

18. Contributions to Simility

By submitting ideas, suggestions, documents, and/or proposals (“Contributions”) to Simility, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Simility is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Simility shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Simility may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Simility without any obligation of Simility to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Simility under any circumstances.

19. General Information

Entire Agreement. These Terms of Service constitutes the entire agreement between you and Simility and govern your use of Simility and the Services, superseding any prior version of these Terms of Service between you and Simility. You also may be subject to additional terms and conditions that may apply pursuant to your particular service agreement with Simility. In the event of any explicit conflict between the terms of your service agreement with Simility and these Terms of Service, the terms of your particular service agreement will govern.

Governing Law and Jurisdiction. You and Simility each agree that these Terms of Service, the relationship between the parties, and all claims arising from or related thereto shall be governed by and construed in accordance with the laws of the State of California as they apply to agreements entered into and performed entirely within California between California residents, without regard to its conflict of laws rules. You and Simility agree to the exclusive personal jurisdiction of the courts located in the County of Santa Clara, California having subject matter jurisdiction over the matters arising under this Agreement and hereby waive any objections to such venue or jurisdiction.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Simility, the Services, or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Force Majeure. Simility will not be responsible for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of terrorism; wars; hostilities; revolutions; riots; civil commotion; national emergency; fire or explosion; flood; force of nature; embargoes; accidents; acts of God; stability or availability of the Internet; the elements; telecommunication system failure; technology attacks; epidemic; quarantine; computer viruses; strike; lockouts; disputes with workmen or labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond Simility’s control, whether or not similar to the foregoing.

Waiver and Severability of Terms. The failure of Simility to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect.

No Right of Survivorship and Non-Transferability. You agree that your Simility account is non-transferable and any rights to your Simility account or its associated data or contents will terminate upon a) death, in the case of an individual user, or b) the date a corporate user ceases to operate as the original legal entity or as a going concern, whether such cessation is accomplished through merger, bankruptcy, liquidation, or any other process.

Section Headings. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.

Construction. These Terms of Service shall be construed and interpreted fairly in accordance with the plain meaning of their terms, and there shall be no presumption or inference against Simility in construing or interpreting the provisions hereof.

20. Violations

Please report any violations of these Terms of Service by email to contact@simility.com.

21. Changes to Terms of Service

Simility may, in its sole discretion and without prior notice, revise these Terms of Service. Simility shall post any revision to these Terms of Service to the Site, and the revision shall be effective immediately on such posting. You agree to review these Terms of Service and other online policies posted on the Site periodically to be aware of any revisions. You agree that, by continuing to use or access the Site following notice of any revision, you shall abide by any such revision.

Last Updated: February 5, 2015