Last updated 25 March 2020
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 acknowledge and agree that (1) the User have read this Agreement; (2) the User understand it; (3) the User are bound by its terms; (4) the User have 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. Simumatik will also update the “Last Updated” date at the top of this Agreement. Any such changes will be effective immediately for both new and existing Users. Simumatik will require Users to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. Continued use of the Service constitutes acceptance of such change(s).
2. Use of Service
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.
By making Content public, the User automatically and free of charge grants to Simumatik a nonexclusive, 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.
2.2. Trial version
The Service is provided as a trial version. The trial version of the Service may not be used for commercial, professional or other for-profit purposes.
The User acknowledge 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.
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.
2.4.1. 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 (as defined above in subsection 3.4) 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.
2.5. 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.
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 their service.
2.7 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.
3.1. 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.
The User may have other statutory rights, however, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the limited warranty period.
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.
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.
3.3. 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.
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.
4.1. Age Restrictions
The User may not register for or use the Service if the User is under 18 years of age.
4.2. 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.
5. Code of conduct; Misuse
5.1. 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.
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.
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) Violation of the Qualifications;
- d) Intellectual property infringement by the User’s Content;
- e) The User’s use of any Content the User has downloaded; and
- f) 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 you, in which event the User agree 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.
7. Term, termination and survival
This Agreement commences on the date the User accepts it and will remain in effect until the User elects to terminate its subscription or its account, or Simumatik terminates 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.
7.2. 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.
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 notice requirements described in this Agreement). If the User cancels its subscription or its account, Simumatik have the right to permanently delete all Content in 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.
7.4. 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.
The terminating Party shall be entitled to give notice of termination of the Agreement at the stated time, however not later than effective within six (6) months from date of notice of termination. In order to be valid, notice of termination must be in writing.
All provisions of this Agreement which by their nature should survive, shall survive termination of the Service, including but without limitation to warranty disclaimers, limitation of liability Content and ownership, indemnity.
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 or voting securities. 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.
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.
11. Governing Law; Jurisdiction 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 and both parties hereby submit to the personal jurisdiction of such courts.
12. 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.
13. 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.
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.
15. 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