Last updated: December 01, 2021
This Free-Trial Subscription Agreement (this “Agreement”) contains terms and conditions that govern your acquisition of subscriptions to, and use of, the Free-Trial Services (as defined below), and is a contract between SMILESIM S.R.L., (“SmileSIM”), and you or the entity or organization that you represent.
If you are an individual using the Free-Trial Services for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement.
If you are using the Free-Trial Services on behalf of an entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Free-Trial Services, (2) when you click an “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (3) when you enter into a Free-Trial Order (as defined below) with SmileSIM.
This Agreement sets forth the terms pursuant to which Customer may access and use the Free-Trial Services in connection with one or more Free-Trial Orders. Subject to the terms of a Free-Trial Order, the Free-Trial Services will support Customer’s collection, monitoring, management and analysis of data generated by systems, platforms, services, software, devices, sites and/or networks that Customer uses in its own internal business operations (collectively, but exclusive of all Free-Trial Services and Paid Services, “Customer’s Environment”).
Subject to the applicable Free-Trial Order and this Agreement, SmileSIM hereby grants to Customer the right to access and use the Free-Trial Services in accordance with the Documentation during the Free-Trial Term for Customer’s Environment.
As between the Parties, Customer controls Customer’s Environment and its individual components (each, a “Customer Component”), whether owned, leased or licensed by Customer, located on Customer’s premises or cloud-based, used by Customer on a software-as-a-service basis or otherwise. Customer will be able to use the Free-Trial Services by establishing integrations or other connections to one or more Customer Components (each, a “Connection”). By implementing a Connection to a Customer Component, Customer hereby grants to SmileSIM the right, and is expressly instructing SmileSIM, to access and interoperate with that Customer Component during the Free-Trial Term in order to provide and support the Free-Trial Services. Customer is responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of Customer Components and associated data (collectively, “Third-Party Terms”).
Through Customer’s configuration and use of Connections and Free-Trial Services, Customer has control over the types and amounts of data from Customer’s Environment that are submitted for Processing by the Services (collectively, “Customer Data”). By submitting Customer Data to the Free-Trial Services, Customer hereby grants to SmileSIM the right, and is expressly instructing SmileSIM, to Process Customer Data during the Free-Trial Term in order to provide and support the Free-Trial Services and as otherwise provided in this Agreement.
All rights granted by each Party to the other under this Section 2 are limited, nonexclusive and, except as otherwise provided in this Agreement, non-transferable.
Subject to this Agreement, SmileSIM may, at its option, make Support to Authorized Users through the Services and by email.
SmileSIM will make the Free-Trial Services available to Customer until the earliest of: (a) the end of the period specified in the applicable Free-Trial Order; (b) the start date of any Paid Order for the applicable Services; (c) termination by SmileSIM, at any time, in its sole discretion; or (d) termination by Customer pursuant to Section 26. Additional terms and conditions, including Supplemental Terms, may apply to Free-Trial Services and Customer agrees any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
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Each Party has obligations with respect to the security of the Free-Trial Services and Customer Data. Taking into account the nature and types of Customer Data, SmileSIM will employ administrative, physical and technical measures in accordance with applicable industry practice to protect the Free-Trial Services and prevent the accidental loss or unauthorized access, use, alteration or disclosure of Customer Data under its control during each Free-Trial Term.
Customer is responsible for properly configuring the Free-Trial Services in accordance with the Documentation, enabling single sign-on for Customer’s accounts, and securing access passwords, keys, tokens or other credentials used by Customer in connection with the Free-Trial Services (collectively, “Customer Credentials”). Customer agrees to use reasonable efforts to prevent unauthorized access or use of the Free-Trial Services and to promptly notify SmileSIM if Customer believes (a) any Customer Credentials have been lost, stolen or made available to an unauthorized third party or (b) an unauthorized third party has accessed the Free-Trial Services or Customer Data.
Except for limited Personal Information in Account Data, SmileSIM does not require Personal Information for Customer’s access and use of the Free-Trial Services. Customer shall limit Personal Information in Account Data to only that necessary for the creation and administration of its SmileSIM accounts. With regard to Customer Data, Customer shall not use the Free-Trial Services to Process any Sensitive Information and shall use reasonable efforts to restrict the inclusion of other Personal Information in Customer Data. The Documentation provides further information on both filtering Personal Information from, and masking Personal Information in, data before they are submitted to the Free-Trial Services.
Customer will be solely responsible for: (a) Customer’s Environment, including as necessary to enable Authorized Users’ access and use of the Free-Trial Services; (b) Account Data, Customer Data and Customer Credentials (including activities conducted with Customer Credentials), subject to SmileSIM’s Processing obligations under this Agreement; (c) providing any required notices to, and receiving any required consents and authorizations from, Customer Component providers, Authorized Users and persons whose Personal Information may be included in Account Data, Customer Data or Customer Credentials; and (d) ensuring use of the Free-Trial Services is only for Customer’s Environment and in accordance with the AUP, Documentation and applicable Third-Party Terms.
No provision of this Agreement includes the right to, and Customer shall not, directly or indirectly: (a) enable any person or entity other than Authorized Users to access and use the Free-Trial Services; (b) attempt to gain unauthorized access to any Free-Trial Service or its related systems or networks; (c) use any Free-Trial Service to access SmileSIM Intellectual Property Rights except as permitted under this Agreement; (d) modify, copy or create any derivative work based upon a Free-Trial Service or any portion, feature or function of a Free-Trial Service; (e) resell, distribute or otherwise make available any Free-Trial Service to any third party, including as part of a managed services offering; (f) except to the extent limited by Applicable Law, reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, the Free-Trial Services or access or use the Free-Trial Services or Documentation in order to (1) copy ideas, features, functions or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (g) remove, obscure or alter any proprietary notice related to the Free-Trial Services; (h) send or store Malicious Code; (i) use or permit others to use the Free-Trial Services in violation of Applicable Law; or (j) use or permit others to use the Free-Trial Services other than as described in the applicable Free-Trial Order, Documentation and this Agreement.
SmileSIM reserves the right to investigate potential violations of the above provisions of this Section 6. In the event SmileSIM reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity, SmileSIM will have the right to suspend Authorized Users suspected of the violation from accessing the Free-Trial Services for so long as is reasonably necessary to address the potential violation.
As between the Parties: (a) Customer owns all right, title and interest in and to Customer’s Environment and Customer Data, including in each case all associated Intellectual Property Rights, and (b) SmileSIM owns all right, title and interest in and to the Paid Services, Free-Trial Services, Documentation and Feedback, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this Agreement, all rights are reserved by the granting Party.
As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) Customer Data; (b) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (c) third-party information that the Discloser is obligated to keep confidential; and (d) the terms of this Agreement and all Free-Trial and Paid Orders. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.
The Recipient shall not (a) use the Discloser’s Confidential Information for any purpose outside the scope of this Agreement without the Discloser’s prior written consent or (b) disclose the Discloser’s Confidential Information to any person or entity, except to the Recipient’s employees, agents, contractors and service providers who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL FREE-TRIAL SERVICES, SUPPORT (IF ANY) AND ANY OTHER MATERIAL ARE PROVIDED BY SmileSIM ON AN “AS IS” AND “AS AVAILABLE” BASIS. SmileSIM MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY CUSTOMER COMPONENT. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 12, SmileSIM MAKES NO WARRANTY OF ANY KIND THAT THE FREE-TRIAL SERVICES, DOCUMENTATION, ANCILLARY TOOLS OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR FREE OR (e) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH CUSTOMER COMPONENTS. ANY CHANGES TO CUSTOMER COMPONENTS (INCLUDING THEIR UNAVAILABILITY) OR THIRD-PARTY TERMS DURING AN ORDER TERM DO NOT AFFECT CUSTOMER’S OBLIGATIONS UNDER THE APPLICABLE ORDER OR THIS AGREEMENT.
The term of this Agreement will continue through the last Free-Trial Term to be in effect.
Upon expiration or earlier termination of a Free-Trial Order: (a) subject to Section 13.3, all rights granted to Customer with respect to Free-Trial Services under such Free-Trial Order will terminate effective as of the effective date of termination and (b) subject to Section 13.3, SmileSIM will have no obligation to provide Free-Trial Services to Customer or Authorized Users after the effective date of the termination.
Subject to any applicable shorter Service Plan retention periods, for up to 30 days from the effective date of termination of this Agreement, an Authorized User designated by Customer will be permitted to continue to access and download Customer Data that was accessible to Authorized Users through the Free-Trial Services immediately prior to termination. The designated Authorized User’s access and use will continue to be subject to the terms of this Agreement, provided the Authorized User shall not access or use the Free-Trial Services other than to download Customer Data.
The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 7.4, 8.2, 9 through 15, and 17 through 26.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 15: (a) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (b) IN NO EVENT SHALL SmileSIM’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED TWO HUNDRED U.S. DOLLARS. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE EXCLUSIONS SHALL NOT APPLY TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 OR BREACH OF SECTION 8.2. THE PROVISIONS OF THIS SECTION 15 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT.
SmileSIM shall not be liable or responsible to the Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency.
This Agreement, together with all Free-Trial Orders, the AUP and, as and if applicable, Supplemental Terms and any other additional terms and conditions as referenced in Section 3, is the complete and exclusive statement of the agreement between the Parties and supersedes all proposals, questionnaires and other communications and agreements between the Parties (oral or written) relating to the subject matter of this Agreement. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Additionally, this Agreement supersedes any confidentiality, non-disclosure, evaluation or trial agreement previously entered into by the Parties with respect Customer’s or an Affiliate’s evaluation of the Free-Trial Services or otherwise with respect to the Free-Trial Services. Except as otherwise provided in Section 26, this Agreement may be modified only by a written instrument duly executed by authorized representatives of the Parties. The failure of a Party to exercise or enforce any condition, term or provision of this Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
SmileSIM may modify this Agreement at any time by posting a revised version, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted. If Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose to stop using the Free-Trial Services and terminate all Free-Trial Orders and this Agreement upon written notice to SmileSIM. For the avoidance of doubt, any Free-Trial Order is subject to the version of the Agreement in effect at the time of the Free-Trial Order.