Copyright SimTutor Inc. 2021.
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This SIMTICS Institutional Subscription Agreement (“Agreement”) is made and entered into by and between SimTutor, Inc., 1700 Northside Drive, Suite A7, PMB 915, Atlanta GA 30318 (”SimTutor”) and the counterparty who agrees to purchase Services from SimTutor subject to this Agreement (“Customer”).
SimTutor has agreed to grant Customer and its nominated End Users the right to access and use the Service, subject to the following terms and conditions.
1.1. In these Terms:
Access Key means a unique login identifier and password or automated security code that allows an End User to access the Service;
Commencement Date means the date that the Subscription Term will start, which shall be specified on an Order Form;
Confidential Information means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. SimTutor’s Confidential Information shall include the Software, Documentation, Content, future product information and all pricing terms set forth herein or previously quoted to Customer. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
Content means the educational information and resources made available through the Service;
Documentation means all online tutorials, user guides and other information relating to the Service made available through the Website;
End User means an authorized end user of the Service, such as a student, instructor or employee, who is nominated by Customer and who is entitled to an Access Key;
End User Access Period means a continuous period of time that an End User may access and use the Service pursuant to this Agreement, which shall be specified in an Order Form. For the avoidance of doubt, Customer may not split an End User Access Period across more than one End User.
Fees means the amounts payable by Customer to use the Service, as invoiced from time to time by SimTutor;
Intellectual Property Rights means all intellectual property rights, including all patent, trademark, service mark, copyright, moral, design, know-how, trade secret and other similar rights;
Module means a subset of the Content that covers a specific topic, skill or procedure, which shall be specified on an Order Form;
Order Form means an ordering document for Services purchased from SimTutor, which may take the form of document mutually executed by the parties, an invoice issued by SimTutor setting forth the purchased Services, or an online transaction electronically accepted by Customer.
Service means the SIMTICS Software and Content which are made available for access on the Website;
Software means the object code of the software application that is hosted on the Website and which contains the Content;
Subscription Term means the period of Customer’s subscription to access and use the Service that commences on the Commencement Date, and which shall be specified in an Order Form. For the avoidance of doubt, Subscription Term is not the same as End User Access Period;
User Data means where applicable any user-specific data provided by Customers or End Users, or generated by End User activity in the Service, including but not limited to first and last name, username, email address, study times and scores;
Website means https://new.simtics.com, as may be updated from time to time upon notice to customers.
2.1. During the Subscription Term and subject to Customer’s compliance with the terms and conditions of this Agreement and the applicable Order Form(s),SimTutor grants to Customer a non-exclusive, non-transferable right to grant its End Users the right to access and use Service, solely:
(a) in connection with the Modules set forth on an Order Form;
(b) for the specified End User Access Period; and
(c) for Customer’s own internal educational purposes.
2.2. For the avoidance of doubt, Customers must grant End Users access to the Service by way of one “named account” per End User, and an Access Key for the Service may not be used by more than one individual or shared with other individuals.
2.3. Each Order Form for a subscription to the Service will describe additional mutually agreed-upon limitations on use of the Service, including, to the extent applicable, Fees, the Subscription Term, the number of permitted End Users, the permitted Modules and the End User Access Period.
2.4. In order for End Users to access and use the Service, Customer must:
(a) have paid the Fees plus any taxes and duties to SimTutor; and
(b) supply unique identifying information for each authorized End User, either direct to a SimTutor customer support employee or through a system interface such as a learning management system.
2.5. Once Customer has satisfied the requirements of Section2.4((a), SimTutor will issue Access Keys for the End Users, or enable access for the End Users through Customer’s system interface (such as a learning management system).
2.6. SimTutor will provide Documentation to assist Customer and its End Users in accessing and using the Service.
2.7. If Customer revokes an End User’s access to the Service or to particular Modules within the Service:
(a) within two (2) calendar months of the commencement of the End User Access Period, the End User’s Access Key can be reassigned to a new End User at no cost;
(b) more than 2 calendar months from the commencement of the End User Access Period, then a pro rata payment will apply for that End User’s access to the Service.
2.8. At the end of the Subscription Term, the Subscription Term shall automatically renew for the same period as the expiring Subscription Term, unless either party provides the other party with notice of its intent not to renew the Subscription Term at least thirty (30) days prior to the end of the then-current Subscription Term. Any price increases applicable to any renewal term will be communicated in writing by SimTutor to Customer at least sixty (60) days prior to the end of the then current Subscription Term.
2.9. Fees and Taxes
2.9.1. Fees. Customer will pay SimTutor all Fees in accordance with this Section 2.9and the applicable Order Form. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable.
2.9.2. Invoices and Payment. Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Unless otherwise specified in an Order Form, SimTutor will invoice, and Customer will pay, all Fees on an annual, prepaid basis, with such invoice date being the date the applicable Order Form is fully executed by both Parties. Customer will be responsible for all of SimTutor’s costs of collection in the event of Customer’s delinquent payment.
2.9.3. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from SimTutor’s provision of the Service hereunder, except any taxes assessed upon SimTutor’s net income. If SimTutor is required to directly pay Taxes related to Customer’s use or receipt of the Service, Customer agrees to promptly reimburse SimTutor for any amounts paid by SimTutor.
3.1. Customer acknowledges and agrees that:
(a) Customer is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software, interfaces and communication services that allow End Users to access and use the Service;
(b) the operation and availability of the system used for accessing the Service, including the Internet, and computer networks, can be unpredictable and may from time to time interfere with or prevent access to the Service, and SimTutor is not in any way responsible for any such interference with or prevention of End User access to and/or use of the Service.
4.1. Customer acknowledges and agrees that, as between Customer and SimTutor, SimTutor retains all right, title and interest in and to the Intellectual Property Rights in and to the Service, Software, Content and Website belong to SimTutor. Customer covenants that it will not dispute SimTutor’s ownership of the foregoing.
4.2. Except for uses that are expressly permitted (for example, in the Documentation or in this Agreement), Customer will not, and will ensure that all End Users do not:
(a) sell, resell, rent, lease, or otherwise distribute any portion of the Service or the Content;
(b) use the Service or the Content other than in accordance with the Documentation or in a manner that interferes with, unduly burdens, or disrupts the integrity, performance, or availability of the Service (for example, by conducting load tests or penetration tests without SimTutor’s prior written consent);
(c) attempt to gain unauthorized access to the Service or to SimTutor’s or its third party suppliers’ related systems or networks;
(d) access any portion of the Service or the Content for the purpose of building a similar or competitive product or service, or monitor the Service for any benchmarking or competitive purpose;
(e) introduce, disseminate, or otherwise enable any viruses, Trojan horses, spyware, worms, malware, spam, or malicious code using the Service;
(f) “frame” or “mirror” any user interface included in the Service;
(g) copy, modify, translate, or create a derivative work of any SimTutor Intellectual Property Rights;
(h) reverse engineer, disassemble, or decompile any software included in the SimTutor Intellectual Property Rights, except as required under applicable law;
(i) alter, remove or violate any copyright or other intellectual property notice appearing in connection with the Service or the Content; or
(j) use or access the Service in violation of applicable laws.
4.3. Customer shall, and shall ensure that all End Users:
(a) maintain the confidentiality of the Access Keys and not to allow any unauthorized person to use the Access Keys;
(b) not transfer or sublicense any of its rights hereunder;
(c) maintain all copyright notices on the Documentation and the Content; and
(d) to notify SimTutor immediately it becomes aware that any person may have unauthorized knowledge, access to or use of the Service, Content or the Documentation.
4.4. Confidential Information.
(a) Confidentiality. For the term of this Agreement and for three (3) years thereafter, each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information.
(b) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
(c) Return of Confidential Information. At any time upon the request of the Disclosing Party, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, so long as it remains undeleted.
(d) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information or is otherwise in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
4.5. By submitting to SimTutor any unsolicited suggestions, enhancement requests, comments, feedback or other input relating to the Services, Content or Software ("Feedback"), Customer grants to SimTutor a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Feedback into the Service in any manner.
4.6. SimTutor may use data concerning Customer’s use and End Users’ use of the Service in an aggregated and anonymous manner (“Usage Information”), including but not limited to compiling statistical and performance information related to the use and operation of the Service, Content and Software. Customer agrees that SimTutor may make such information publicly available, provided that such use does not identify Customer or any End User either directly or indirectly. SimTutor retains all Intellectual Property Rights in the Usage Information.
5.1. SimTutor warrants that it has full power and authority to grant the rights to access and use the Service provided hereunder.
5.2. SimTutor warrants that to the best of its knowledge and belief the Software, the Content and the Documentation do not infringe any patent, copyright, trade secret or other intellectual property right of any third party.
5.3. SimTutor warrants that the Service will function substantially in accordance with the Documentation subject to Customer’s following acknowledgements:
a) the Software is of a complicated and technical nature and may have inherent defects; and
b) SimTutor accepts no liability, and is not in any way responsible for, any interference in the End Users’ access to the Service caused by these defects.
5.4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) THE SERVICE IS PROVIDED “AS-IS;” (2) SIMTUTOR DOES NOT MAKE ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO CUSTOMER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3) SIMTUTOR HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND (4) SIMTUTOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICE TO SUPPLYING THE SERVICE AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICE AGAIN.
5.5. Customer agrees to indemnify SimTutor, its officers, employees, directors, shareholders, agents, representatives, information providers, licensors, and all of their successors and assigns from any claims, damages, and attorneys' fees arising under statute, warranty, contract, tort (including negligence) or otherwise arising from the relationship between the parties.
6.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIMTUTOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
6.2. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIMTUTOR HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SIMTUTOR SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY CUSTOMER, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF CUSTOMER TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
7.1. Either party may terminate this Agreement immediately by giving written notice to the other Party, if the other party:
(a) breaches any provision of this Agreement and fails to remedy the breach within thirty (30) days after receiving written notice of the breach; or
(b) becomes insolvent, goes into liquidation, has a receiver appointed over any of its assets, ceases to carry on its business or makes any composition or arrangement with its creditors.
7.2 In addition, SimTutor may immediately terminate this Agreement by giving written notice to Customer, if Customer or any of its End Users breaches any of its obligations under Section 4.
7.3. Following termination or expiration of this Agreement and subject to Section7.5, Customer and its End Users will have no further right to access or use the Service and their Access Keys will be cancelled.
Upon termination or expiration of this Agreement or the Subscription Term provided herein for any reason:
(a) no refund will be provided for any unused portion of the subscription;
(b) Customer is not permitted to provide access to any new End Users.
7.5. Unless this Agreement is terminated pursuant to Sections 7.1 or 7.2 and except for circumstances Customer or End Users are accessing the Service under a pilot, upon the expiration or termination of this Agreement or the Subscription Term, existing End Users can continue to access the Service until their individual Access Keys expire, which shall be at the conclusion of each such End User’s End User Access Period.
7.6. SimTutor reserves the right to monitor the use of the Service for security and operational purposes. SimTutor may immediately suspend or throttle access to the Service if (i) SimTutor reasonably believes that an End User or Customer is in breach of this Agreement; (ii) an End User or Customer engages in excessive utilization of the Service which affects, or could reasonably likely (in SimTutor’s opinion) affect, system availability or performance, (iii) if SimTutor in good faith suspects that any third party has gained unauthorized access to the Service using a credential issued by SimTutor to Customer or an End User or (iv) Customer has failed to make all payments due in accordance with 2.9.
7.7. The following provisions shall survive any expiration or termination of this Agreement: 2.9, 4, 5.4, 5.5, 6, 7.3, 7.4, 7.5, 7.7 and 8.
8.1. Any notice to be given under this Agreement must be made in writing by electronic mail or by facsimile transmission sent to: (a) in the case of SimTutor, SimTutor, Inc., Attn: Legal Department, 1700 Northside Drive Suite A7, PMB 915, Atlanta GA 30318, or (b) in the case of Customer, the address set forth on the applicable Order Form, in each case, or to such other address as may be notified by either party to the other from time to time. Any communication by email or facsimile transmission will be deemed to be received when transmitted to the correct electronic mail address or facsimile transmission address of the recipient. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or ten business days following the date of posting.
8.2. No waiver of any breach of this Agreement will be deemed to be a waiver of any other or any subsequent breach. The failure of SimTutor to enforce any provision of this Agreement will not be interpreted as a waiver of the provision.
8.3. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
8.4. If any provision of this Agreement is invalid or unenforceable, the remaining provisions will not be affected and will continue in full force.
8.5. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final and binding arbitration in Atlanta, Georgia (except for an action for interim equitable relief otherwise permitted under this Agreement and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of Georgia for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final and binding. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, costs and other expenses.
8.6. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties, and SimTutor will be considered an independent contractor when performing any Service hereunder.
8.7. This Agreement (including all Order Forms and Appendices, all of which are incorporated herein by reference) constitute the entire agreement between the parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form or Appendix, the terms of the Order Form or Appendix shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.
8.8. Any press release developed by a party regarding this Agreement shall be subject to the prior written consent of the other party, which shall not be unreasonably withheld. SimTutor may identify Customer as a user of the Service by referencing Customer’s name and logo, provided that SimTutor will cease making such references after receiving written notice from Customer to do so.
8.9. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any SimTutor employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify SimTutor if it offers or receives any such improper payment or transfer in connection with this Agreement.
8.10. Except for performance of a payment obligation, neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, epidemics, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in SimTutor not being able to provide access to the Service for a period of more than thirty (30) days, then either party may terminate the Agreement upon written notice to the other party.
8.11. Customer acknowledges that Customer has exclusive control and responsibility for determining what data, including User Data, Customer submits to SimTutor (through the Service or otherwise) and for obtaining all necessary consents and permissions for submission of such data and processing instructions to SimTutor. Except for the User Data set forth on Appendix 1 for which Customer has obtained necessary rights of access and use from the individual, Customer agrees not to submit other personal data or any sensitive personal information (including government issued identification numbers, financial account information, payment card information, and personal health information) to SimTutor. In addition, Customer shall be solely responsible for compliance with all applicable laws regarding SimTutor’s access and use of all User Data in accordance with the terms of this Agreement, and shall indemnify and hold SimTutor harmless against all claims, damages, and attorneys' fees arising under statute, warranty, contract, tort (including negligence) or otherwise arising from any User Data provided by SimTutor to Customer.
8.12. The Service and related technical data and services (collectively, "Controlled Technology") may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Customer agrees to comply with all applicable export and re-export control laws and regulations and will not export or re-export any Controlled Technology in contravention to U.S. law, nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Controlled Technology is generally prohibited for export or re-export to Cuba, North Korea, Iran, Syria, Sudan, and any other country subject to relevant trade sanctions.
This appendix describes the service and support that SimTutor provides as part of a SIMTICS institutional subscription agreement.
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This version last updated 18-Nov-2020.
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