Terms Of Use

Last updated 25 March 2021

This Terms of Use Agreement (“Agreement”) is entered into between Simumatik AB (“Simumatik”) and the User (defined below). This Agreement governs the use of Simumatik’s products and services (“Service”).

By creating an account, signing in via a web browser to the Service provided to the User or the organization by or on behalf of Simumatik in connection with the use of the Service, the User acknowledges and agrees that (1) the User has read this Agreement; (2) the User understands it; (3) the User is bound by its terms; (4) the User has the authority to enter into this Agreement personally or on behalf of the organization named as the User, and to bind such User to this Agreement; and (5) the User may receive, without further notice or prompting, updated versions of the Service. If the User does not agree to the foregoing, the User may not access or use the Service.

1. Changes to this Agreement

Please note that the terms of this Agreement are subject to change by Simumatik at its sole discretion at any time. When changes are made Simumatik will make a new copy of the Agreement available on its website. The new version will also be communicated via email and be effective from the specified date for both new and existing Users. Simumatik will also update the “Last Updated” date at the top of this Agreement. Continued use of the Service constitutes acceptance of such change(s).

2. User Accounts & subscription types

Pricing and payment

The User is liable to pay all fees associated with the Service as set forth in the order on Simumatik’s website at the time of the order. All payments shall be made in advance. Except as expressly set forth herein, all fees and payments are non-refundable once paid. The User shall be responsible for all taxes, withholdings, duties and levies arising from the order. When placing the order, the User will chose which type of subscription that the User signs up for in accordance with the below.

Individual and Organization Subscription Plans

Simumatik generally provides paid subscriptions to individual users and organizations so they can access paid functionalities, and create and share their content within a group of users (“Members”) or make it public to the entire community. Individual Users that do not have a paid subscription plan can be active Members of one or several organizations. During the time an individual User holds a seat it will be granted the functionalities offered by the organization subscription. When a User is removed from the organization by releasing a seat, the User’s account will automatically lose access to the organization’s content and subscription functionalities. The different subscription plans are described below.

Basic Account (no subscription)

Subject to the terms and conditions of this Agreement, all individual Users will own an account to use part of the Service for personal purposes once they register (“Basic Account”). The Basic Account offers limited functionality as, at each given time, is set forth on Simumatik’s website.

Standard Subscription (non-commercial)

Subject to the terms and conditions of this Agreement and any terms specified in the order, an individual User may use the Services for personal purposes (“Standard Subscription (non-commercial)”). The Standard Subscriptions (non-commercial) of the Service are for personal purposes only and may not be used for commercial, professional or other for-profit purposes. Simumatik has the right to, without prior notice and in its complete discretion, suspend a User if the Service is used in breach of this Agreement, including but not limited to use for commercial purposes. The Standard Subscription (non-commercial) offers functionality as, at each given time, is set forth on Simumatik’s website. When the subscription period is not renewed, the User’s account will automatically lose access to the Standard Subscription functionalities.

Enterprise Subscription

With Simumatik’s written approval and subject to the terms and conditions of this Agreement and any terms specified in the order, a User (Organization and its Members) may use the Service for commercial and/or professional purposes (“Enterprise Subscription”). The Enterprise Subscription offers functionality as, at each given time, is set forth on Simumatik’s website. Individual Users may be granted access to the organization by assigning them a seat by the legal entity that holds the Enterprise Subscription.

Educational Subscription

With Simumatik’s written approval and subject to the terms and conditions of this Agreement and any terms specified in the order, a User (Organization and its Members) may use the Service for teaching purposes (“Educational Subscription”). The Educational Subscriptions is exclusive for (i) accredited educational institutions such as schools and universities, and (ii) training departments in large companies, and may not be used for commercial, professional or other for-profit purposes. The Educational Subscription offers functionality as, at each given time, is set forth on Simumatik’s website.

3. Use of Service

Licenses

Subject to the Users compliance with the terms of this Agreement, Simumatik hereby grants to the User a non-exclusive, non- transferable, non-sublicensable, revocable right and license to access and use the provided Service in accordance with the terms of this Agreement and any terms set forth on the order form, as applicable. All use of the Service is limited to the subscription type ordered and paid for (as applicable) in accordance with the above.

By making Content (defined below) public, the User automatically and free of charge grants to Simumatik a non-exclusive, worldwide, perpetual, transferrable (with the right to sublicense through multiple tiers), irrevocable license (under all applicable intellectual property rights) to copy, publicly perform and display, use, distribute, create derivative works of, store, promote, market, support, transmit, and otherwise make available on or through the Service all Content, including without limitation as necessary to promote, operate and make available the Service and any related Simumatik products or services. The foregoing license includes the rights for Simumatik to make Content available through Simumatik’s partners and sublicensees.

Ownership

The User acknowledges that (i) all right, title, and interest in and to the Service and the online or other documentation provided by Simumatik describing the Service and its use (the “Documentation”), and all patents, copyrights, trade secret rights, trademarks, trade names, and other proprietary rights embodied therein or associated therewith, are and shall remain with Simumatik and/or its third party licensors; (ii) this Agreement conveys no right or interest in the Service or Documentation other than a limited right to use the Service in accordance herewith; and (iii) the Service and Documentation are protected by the copyright laws of Sweden.

Content

The Service is composed of the following Content (“Content”):


a) Systems: a system is defined by metadata and its Content is described using an XML-file following the Simumatik data model and set of assets, documentation, programs, scripts, pictures etc. Only the XML-file is versioned to enable its owner to undo any changes, the system metadata and the assets are not versioned;
b) Components: a component is defined by its metadata and its Content is described using an XML-file following the Simumatik data model and a set of assets such as 3D models, scripts, pictures etc. Only the component XML-file is versioned to enable its owner to undo any changes, the component metadata and the assets are not versioned; and
c) Libraries: the Libraries are collections of components in order to group and organize them, they are not versioned.

Private and Public Content

The User of Simumatik has the ability to choose if Content is to be private or public.

When the User creates Content it will, by default, be private and remain private unless the User decides to make it public. When a Content is private, the User has sole access to view and edit the Content. The User is fully responsible for their creation and is solely responsible for having the right to use any asset included in the creation and for not infringing on and/or violating any third-party rights. Simumatik reserves its right to monitor and investigate (as set forth in this Agreement) to ensure that no violations and/or infringes occur.

All public Content will be visible and accessible by any User of the Service. Public Content cannot be modified. Before Simumatik publishes any Content as public, the Content might be subject to an additional audit to ensure proper use of the Service. Simumatik may modify, update or remove any Content they have published to the Service at any time at their discretion. Simumatik may also remove any Content from the Service if it discovers that such Content violates this Agreement, any other Simumatik policy or applicable law. Simumatik does not and will not endorse, guarantee or provide a warranty for the User’s Content and may or may not review them for compliance with law (copyright, patent or any other laws) or Simumatik policies or qualifications. Distribution of the User’s Content through the Service is at the User’s own risk.

Hardware and Passwords

The User is responsible for obtaining and maintaining all of the hardware, software, internet access, and other products and services that the User may need to use the Service. The User is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other login information (collectively, “Passwords”) that are provided to the User or that are generated in connection with the User’s use of the Service. The User is the only person to whom the license described in above extends. No User is permitted to allow any other User to use its Passwords to access the Service, either as a means of effecting a shared group license or otherwise. The user is fully and solely responsible for all activities that occur on the Service under his or her Passwords. Additionally, the User is fully responsible for any and all activities that occur under the User’s account. The User shall notify Simumatik immediately of any unauthorized use of the User’s Passwords.

Testing

Simumatik continually updates the Service. In addition, Simumatik continually tests various aspects of the Service, including Simumatik’s website, user interfaces, service levels, plans, promotional features, delivery and pricing. Simumatik reserves the right to, and by using the Service the User agrees that Simumatik may, include the User in or exclude the User from these tests without notice. Simumatik reserves the right at their sole and absolute discretion to make changes from time to time and without notice in how Simumatik offer and operate its Service.

Suspension of Service

The User’s access to, and use of, the Service may be suspended temporarily for the duration of any scheduled maintenance or unscheduled downtime or unavailability of any portion, or all, of the Service for any reason, including as a result of power outages, system, or internet failures or other interruptions. Simumatik also reserves the right to suspend a User’s subscription anytime with or without notification in order to protect Simumatik and User or Users from what Simumatik believes to be fraudulent activity. Simumatik is not obligated to credit or discount a paid subscription for holds placed on it.

4. Disclaimers

Warranty Disclaimers

The Service is provided “as is”. Simumatik makes no other warranties, conditions or undertakings, express or implied, statutory or otherwise including but not limited to warranties of title merchantability, fitness for a particular purpose or noninfringement of intellectual property. Simumatik makes no warranty:

a) that the service will meet the user requirements;
b) that the Service will be error-free or bug-free;
c) regarding the security, reliability, timeliness or performance of the Service;
d) that any errors in the Service will be corrected; and
e) regarding the results or output of the Service.

Simumatik makes no warranties with respect to any third-party Content of and or in the Service and Simumatik will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Simumatik.

For the avoidance of doubt, Simumatik does not assume and will not have any liability arising from events beyond Simumatik’s control or the control of its subcontractors, other developers, business partners or licensors, including events such as acts of God, acts of any governmental entity, acts of a public enemy, strikes, natural disasters, or failure or diminishment of power or telecommunications or data networks or services.

Representations

The User represents and warrants that the User has all intellectual property rights, including patent, copyright, trademark, trade secret, right of privacy or publicity or other proprietary rights, in and to each Content the User seeks to make public its related Content. If the User’s Content includes third-party Content, the User represents and warrants that the User has the right to distribute the third-party Content or otherwise grant Simumatik all rights and licenses to such Content set forth above. The User shall not distribute Content unless the User is the owner of such Content and/or has all the necessary rights or permissions from applicable third parties.

Limitation of Liability

Simumatik shall not be liable for any loss of access, loss of use, lost data, failure of security mechanisms, interruption of business, or any indirect, special incidental or consequential damages of any kind (including lost profits or data), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibilities of such damages in advance.

In no event shall Simumatik, its suppliers or other developers be liable to any direct, third party, indirect, special, consequential, or incidental damages (including, without limitation, lost profits or revenues, business interruption, costs of replacement goods, loss or damage to data arising out of the use of or inability to use or distribute Content through the Service, or damages resulting from use of or reliance on the information present on the Service), even if Simumatik, its suppliers or other developers have been advised of the possibility of such damages.

These limitations and exclusions apply without regard to whether damages arise from breach of contract or warranty, negligence or any other cause of action. To the extent that applicable law does not prohibit such exclusions and limitations, in no event will Simumatik’s total liability for all damages, losses and causes of action, whether in contract, strict liability, tort (including negligence) or otherwise, exceed the amount actually paid by the User to Simumatik under this Agreement.

5. Terms of Use; Restrictions

Age Restrictions

The User may not register for or use the Service if the User is under 18 years of age.

General Restrictions

The User will not (and will not permit any third party to):

a) rent, lease, copy, provide access to or sublicense the Service to a third party;
b) use the Service to provide, create or develop, or incorporate the Service into, any other product or service;
c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non- public APIs to the Service, except to the extent expressly permitted by applicable law
d) modify the Service or the Documentation, or create any derivative product from any of the foregoing;
e) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service);
f) publicly disseminate information regarding the performance of the Service;
g) attempt to gain unauthorized access to any systems, networks or data of Simumatik or interfere with or disrupt the integrity or performance of any such systems, networks or data; or
h) create more than one account for any individually permitted User.

6. Code of conduct; Misuse

As a condition of the User’s use of the Service the User agrees that the User will not use the Service for any purpose that is unlawful or prohibited by this Agreement, or any other Simumatik policy (“Misuse”). The User will be responsible for any costs incurred by Simumatik or any other party (including attorneys’ fees) as a result of the User’s Misuse of the Service. Simumatik specifically disclaims any express or implied warranty of fitness for High Risk Activities (as defined below). The User represents and warrants that the User will not use the Service (or permit it to be used) for High Risk Activities and agree that Simumatik will have no liability for use of the Service in High Risk Activities. The User agrees to indemnify and hold harmless Simumatik for any damages, liabilities or other losses resulting from such use.

Misuse includes, but is not limited to:

a) using the Service in life support, medical, emergency, mission critical or other strict liability or hazardous activities (“High Risk Activities”);

b) using the Service to disseminate or convey inappropriate, defamatory, obscene, salacious, or unlawful information, images or Content; or to harass, stalk, threaten or otherwise violate the legal rights of others;

c) using the Service in such a manner so as to interfere unreasonably with its use by others;

d) attempting or assisting another to access, alter, or interfere with the communications and/or information of another user;

e) scraping information from the Service;

f) account fraud or unauthorized access of an account;

g) uploading, or otherwise making available, any Content or any other material, including files that contain text, images, photographs, software or other Content owned by others, in any manner that infringes any copyright, trademark, patent, trade secret or other proprietary right of others;

h) advertising, offering to sell or buy goods (other than Content, if applicable), or using Content for business promotional purposes, except as expressly permitted by Simumatik;

i) violating any code of conduct associated with the Simumatik Service, or any applicable laws or regulations;

j) taking any action that imposes an unreasonable or disproportionately large load on the infrastructure of Simumatik;

k) uploading files that contain viruses, Trojan horses, worms, or other similar software or programs that cause damage to computers or property of others;

l) using any messaging functionality made available through the Simumatik Service to send communications which would violate applicable law or which contain Content or materials of the type prohibited in the subsections above.

m) removing, obscuring or altering any product identification, proprietary, copyright, trademark or other notices contained in the Content or accessed in conjunction with or through the Content;

n) claiming or misrepresenting ownership of any Content which the User did not create or develop;

o) selling, offering to sell, making or distributing any individual Content on a standalone basis;

p) using Content in a manner that competes with the Service (including aggregating such Content in another online warehouse or similar product or service);

q) aggregating Content obtained from the Service for redistribution;

r) using or distributing Content obtained from the Service in a mapping or geographic application or service; and

s) failing to adhere to any posted instructions, directions or limitations on usage and reproduction of Content.

Monitoring and investigations

Simumatik may, but is not obligated to, monitor or review Content. If Simumatik becomes aware of any possible violations by the User of any provision of this Agreement, Simumatik reserves the right to investigate such violations and may, at its sole discretion, suspend or terminate the User’s license to use Simumatik, with or without prior notice to the User.

If the User or the User’s Content violate the terms of this Agreement, or applicable laws, or interfere with the Service in any way:

a) Simumatik reserves the right to seek all remedies available in law and equity for such violations;

b) Simumatik may terminate this Agreement with the User, remove the User’s Content from the Service, and/or suspend or terminate the User’s account; and

c) The User must immediately discontinue use of and destroy any downloaded Content.

Simumatik further reserves the right to remove the Content or discontinue services available with or without notice, to terminate the User’s authorization to use any services or to terminate the User’s Passwords and to delete any one or more of the User’s related accounts, for any reason or for no reason, immediately and at any time. Simumatik accepts no responsibility for such deleted or removed Content.

7. Indemnity

The User agree to hold harmless and indemnify Simumatik and its subsidiaries, affiliates, officers, agents, and employees from and against any claim, suit or action arising from or in any way related to the User’s misuse of the Service or the User’s violation of this Agreement, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Simumatik will provide the User with written notice of such claim, suit or action.

Upon a request by Simumatik, the User agree to defend, indemnify and hold harmless Simumatik and its affiliates, agents, suppliers and third parties, and its and their employees, contractors, officers and directors from all liabilities, claims and expenses, including attorneys’ fees, that arise from:

a) The User’s use or misuse of the Service;
b) Distribution of the User’s Content;
c) Intellectual property infringement by the User’s Content;
d) The User’s use of any Content the User has downloaded; and
e) The User’s breach of the general model license associated with Content the User have downloaded.

Simumatik reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User agrees to cooperate with Simumatik in asserting any available defenses. The User may not settle any claim without the prior written consent of Simumatik in each case.

8. Term and termination

Term

This Agreement commences on the date the User accepts it and will remain in effect until the User terminates its subscription or its account, or Simumatik terminates the Agreement or the User’s access. Notwithstanding the foregoing, if the User used the Service prior to the date the User accepted this Agreement, the User hereby acknowledge and agree that this Agreement commenced on the date the User first used the Service.

Termination by Simumatik

Simumatik shall be entitled to suspend, terminate, or limit the User’s access to the Service at any time, with or without notice, if the User breach any term of this Agreement, or if the User facilitates or encourages any violation of this Agreement. Upon termination of this Agreement, the User shall make no further use of the Service. Termination of this Agreement shall not affect any obligations accrued prior thereto. The User understands that any termination of the Service by Simumatik may involve deletion of the User Content associated therewith. Simumatik will not have any liability whatsoever to the User for any suspension or termination, including for deletion of the User Content.

Termination

If the User wants to terminate this Agreement by cancelling the User’s subscription, the User may do so by notifying Simumatik at any time (subject, as applicable, to the agreed notice requirements). If the User cancels its subscription or its account, Simumatik have the right to permanently delete all Content in the User’s account; and Simumatik also have the right but not the obligation to maintain Content that the User has not permanently deleted prior to the User’s cancellation. The User is responsible for exporting any Content, if the User so chooses, prior to cancelling its subscription. If the User permanently deletes such Content, it may persist in backup copies for a reasonable period of time thereafter in accordance with Simumatik’s data management policies and practices.

Termination of the Service includes removal of access to the Service and barring the User further use of the Service. Termination of Service also includes deletion of the User’s Password and all related profile information.

Premature termination

Either Party shall be entitled to prematurely terminate this Agreement with immediate effect where: the other Party materially breaches its obligations under this Agreement and has failed to remedy the breach within thirty (30) days after written notice to it from the other Party with reference to this section; or the other Party is placed into bankruptcy, commences composition proceedings, or is insolvent.

9. Survival

All provisions of this Agreement which by their nature should survive, shall survive termination of the Agreement, including but not limited to the provisions regarding disclaimers, limitation of liability, indemnification, Content and ownership of IP.

10. Assignment

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Simumatik may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Simumatik’s assets. The User may not assign or transfer this Agreement, in whole or in part, without Simumatik’s written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.

11. Severability

If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

12. Governing Law and Venue

This Agreement shall be governed by the substantive law of Sweden. Jurisdiction and venue for actions related to the subject matter hereof are the courts of Sweden.

13. Notices and reports

Any notice or report hereunder shall be in writing. If to Simumatik, such notice or report shall be sent to Simumatik at “Simumatik AB, Box 133, 541 23 Skövde, Sweden”. If to the User, such notice or report shall be sent to the address the User provided upon placing the User order. Notices and reports shall be deemed given: (a) upon receipt if by personal delivery; (b) five (5) days after it is sent if sent by certified or registered mail; or (c) upon receipt if sent by electronic message.

14. Force Majeure

A party shall be relieved from liability for a failure to perform its obligations under this Agreement during such period, and to the extent that the due performance thereof by the party is prevented by reason of any circumstance beyond the control of the party, which could not reasonably have been foreseen by the party prior to entering into this Agreement, such as war, civil war, fire, flood, interruption in public transport, communications or general energy supply, or other circumstances of similar importance.

If a party wishes to invoke a circumstance in accordance with the previous section, it shall give notice to the other party when there is a risk for failure or delay to perform an obligation under this Agreement. Failing to give such notice, the party shall not be discharged from liability for any damage which could have been avoided had notice been given in due time.

The time for performance of the relevant obligations of a party shall be appropriately extended by the period during which the circumstance in accordance with the first paragraph shall have continued, provided, however, that if performance of a contractual obligation is prevented by such a circumstance for a period of three (3) months or more, each party shall be entitled to terminate this Agreement subject to three (3) months’ prior notice.

15. Waiver

Any waiver or failure to enforce any provision of the terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

16. Entire Agreement

The Parties confirm that this Agreement represents the entire understanding and constitutes the whole Agreement between the Parties relating to the subject matter hereof and supersedes all prior Agreements, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, agent, employee or representative of either of the parties.

17. Personal Data

Personal data will be processed in accordance with Simumatik’s Integritetspolicy (Engelska) and applicable law. The privacy policy can be found on Simumatik’s website.