Master Subscription Agreement

1. Definitions

1. Capitalized terms not otherwise defined in this Agreement have the respective meanings ascribed to them in this section.
2. "Affiliate" means any entity that controls, is controlled by, or is under common control with SmileSIM or the Customer entity accepting these terms, where "control" means ownership of more than 50% of the voting interests of the relevant entity.
3. "Customer Data" means all information that the Customer or its Authorized Users transmit to the Service.
4. "Documentation" means the SmileSIM user guides, as updated from time to time, accessible through the "Help" function of the Service.
5. "Applicable Laws" means all laws, rules, directives, regulations, or governmental orders applicable to the performance of any part under this Agreement.
6. "Authorized User" means any person authorized by the Customer to use the Service on the Customer's account, including employees, consultants, contractors, or agents of the Customer or its Affiliates.
7. “Order” means the (1) purchase of a subscription to the Services: (a) completed and submitted by Customer online at the SmileSIM site or (b) executed by SmileSIM and Customer, or (2) the use of the Services on a pay-as-you-go basis.
8. "GDPR" means the General Data Protection Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons concerning the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC.
9. "Intellectual Property Rights" means all registered and unregistered rights granted, applied for, or otherwise existing now or in the future under any patent, copyright, trademark, trade secret, database protection, or other laws relating to intellectual property rights and all similar or equivalent rights or forms of protection in any part of the world.
10. "Malicious Code" means viruses, worms, time bombs, Trojan horses, and other harmful or malicious codes, files, scripts, agents, or programs.
11. "Subscription Term" means, with respect to each Subscription, the initial subscription term for the Services specified in the applicable Subscription. In the event a Subscription does not specify a fixed term, the Subscription Term will run from the effective date of the Subscription until the end of the calendar month (for monthly subscriptions) or the end of the year (for annual subscriptions) in which either party provides termination notice in accordance with Section 16, unless the Subscription is terminated earlier in accordance with this Agreement or the Subscription.
12. "Party" means each of SmileSIM and the Customer.
13. "Personal Data" means information relating to an identified or identifiable natural person protected by the applicable privacy laws in which that person resides.
14. "Pricing Page" means publicly available web pages where SmileSIM publishes its list prices for Services, currently available at https://smilesim.com/shop.
15. "Privacy Policy" means SmileSIM's standard Privacy Policy, currently available at https://smilesim.com/legal/policy.
16. "Services" or "Software Services" means SmileSIM's hosted services, made available online by SmileSIM through the applicable login page and other web pages designated by SmileSIM. SmileSIM may make changes to the Services that it deems appropriate from time to time, provided that such changes do not materially reduce the features or functionality of the Services as they existed on the effective date of this Agreement. For the purposes of this Agreement, the term "Services" does not include versions that are subject to the Free Trial Subscription Agreement available at https://smilesim.com/policies/free-trial-subscription-agreement.
17. "Service Plan" means the packaged plan and associated features, for the Services to which Customer subscribes.
18. "Support" means standard SmileSIM customer support for the Services.

2. Access and Use

1. SmileSIM shall provide the Customer with the purchased software Service based on an Order Form or another ordering document, during the Subscription Term, in accordance with this Agreement. SmileSIM may periodically update the content, functionality, and interface of the software Services. Some features and functionalities may be available only with certain versions of the Service. The Customer agrees that the purchase of the software Services under this Agreement is not conditioned upon the provision of future features or functionalities.
2. SmileSIM grants the Customer a non-exclusive, non-sublicensable, non-transferable right (except as specifically permitted in this Agreement) to access and use the software Services during the applicable Subscription Term, in accordance with this Agreement, solely for the Customer's internal business purposes and in accordance with the applicable Order Form or other ordering document.
3. By configuring and using Connections and Services, the Customer controls the types and quantities of data from the Customer's environment that are transmitted for Processing by the Services (collectively, "Customer Data"). By submitting Customer Data to the Services, the Customer grants SmileSIM the right and expressly instructs SmileSIM to Process the Customer Data during the Subscription Term, to provide and support the Services, and as otherwise provided in this Agreement.

3. Warranty of Software Services

1. Each party represents and warrants that it will comply with all applicable laws, rules, and regulations in the exercise of its rights and performance of its obligations under this Agreement.
2. SmileSIM warrants during the applicable Subscription Term that: (a) the software Services will materially conform to the applicable Documentation, and (b) SmileSIM will not significantly reduce the functionality of the software Services. For any breach of the above warranties, as SmileSIM's sole liability and the Customer's exclusive remedy, SmileSIM will correct the non-conforming Service within a commercially reasonable time after receiving written notice of the breach.
3. SmileSIM warrants that the Service does not contain, and SmileSIM will not introduce, software viruses, worms, Trojan horses, or other malicious code ("Malicious Code").

4. Support

1. Subject to this Agreement, SmileSIM will provide support to Authorized Users through the Services and via email. Although response times are not guaranteed, SmileSIM undertakes to respond to each support request from an Authorized User (each, a "Support Request") within 48 hours. The Customer's sole exclusive remedy for any alleged failure by SmileSIM to provide support with reasonable skill, care, and diligence following a Support Request shall be the reperformance of the applicable support.

5. Hosting and Other Providers

1. SmileSIM utilizes third-party hosting providers, other service providers, and SmileSIM Affiliates to support the provision of Services and Assistance in the normal course of its business, which is not specifically for a particular Customer (collectively, "Third-Party Providers"). SmileSIM reserves the right to engage and replace Third-Party Providers as it deems necessary, but will: (a) remain responsible to the Customer for the provision of Services and Assistance, and (b) be liable for the actions and omissions of the Third-Party Providers, undertaken in connection with SmileSIM's performance under this Agreement, to the same extent as if SmileSIM were directly performing the Services or Assistance.

6. Security and Privacy

1. Each party has obligations regarding the security of the Services and Customer Data. Considering the nature and types of Customer Data, SmileSIM will use administrative, physical, and technical measures in accordance with industry-applicable practices to protect the Services and prevent accidental loss or unauthorized access, use, alteration, or disclosure of Customer Data.
2. The Customer is responsible for the correct configuration of the Services in accordance with the Documentation, to enable single sign-on for the Customer's accounts and secure access passwords or other credentials used by the Customer in connection with the Services. The Customer agrees to make reasonable efforts to prevent unauthorized access or use of the Services and to promptly notify SmileSIM if the Customer believes (a) any of the Customer's credentials have been lost, stolen, or provided to an unauthorized third party or (b) an unauthorized third party has accessed the Services or Customer Data.
3. SmileSIM may Process information about the Customer's configuration and use of the Services ("Usage Data"), Customer Data, and Account Data: (a) to manage the Customer's account, including calculating the Charges (as defined in Section 9.1); (b) to provide and improve the Services and Assistance, including addressing Support requests and resolving other issues; and (c) to provide the Customer and Authorized Users with information, service announcements, features, and other reports. Additionally, SmileSIM may Process aggregated and/or anonymized Usage Data (including, for clarity, data that does not permit a third party to identify the Customer as the source of the information): (i) to develop new services and features and (ii) to promote SmileSIM's services, including, for example, through pattern and trend analysis. SmileSIM's processing of Usage Data, Customer Data, and Account Data will at all times be subject to SmileSIM's obligations under this Agreement, including those of security pursuant to Section 6.1 and confidentiality pursuant to Section 14; the Data Processing Agreement ("DPA"), if applicable; the Additional Terms, if applicable; and, regarding Account Data, the Privacy Policy.

7. Customer Responsibilities and Restrictions

1. The Customer acknowledges that it retains administrative control over who is granted access to Customer Data hosted in the software Services. The Customer may designate one or more Authorized Users as administrators (each an "Administrator") to manage its account, and SmileSIM is entitled to rely on communications from such Administrators and other Customer employees when servicing the Customer's account. The Customer is responsible for its Authorized Users' use of the software Services and their compliance with this Agreement. The Customer is solely responsible for the accuracy, quality, and legality of Customer Data, including providing any necessary notices and obtaining any consents and authorizations from individuals whose personal information may be included in Customer Data. The Customer shall promptly notify SmileSIM if it becomes aware of any unauthorized use or access.
2. The Service may not be used for illegal, harmful, obscene, offensive, or fraudulent activities. Examples of prohibited activities include supporting or causing harm, interfering with the integrity or security of a network or system, bypassing filters, sending unsolicited, abusive, or deceptive messages, introducing viruses or malicious code, or infringing on third-party rights. The Customer (a) shall not make the software Services available to anyone other than the Customer and its Authorized Users and shall not use the Service for the benefit of anyone other than the Customer or its Affiliates; (b) shall not rent, sublicense, resell, assign, distribute, or exploit the software Services in a similar manner; (c) shall not reverse engineer, copy, modify, adapt, or hack the software Services; (d) shall not access the software Services, Documentation, or SmileSIM's Confidential Information to build a competitive product or service. SmileSIM may request the Customer to suspend the account of any Authorized User who: (a) violates this Agreement or the SmileSIM End User Terms; or (b) uses the Service in a manner that SmileSIM reasonably believes may pose a security risk, disrupt others' use of the Service, or expose SmileSIM to liability. If the Customer fails to promptly suspend or terminate such an Authorized User's account, SmileSIM reserves the right to do so.

8. Compliance with Applicable Laws

1. Each party must comply with the Applicable Laws regarding privacy and the protection of personal information. The Customer shall be solely responsible for providing any notifications required by the Applicable Law and obtaining any consents and authorizations required by the Applicable Law from individuals whose Personal Information may be included in the Customer's Data.
2. In the event the Customer believes that the Customer's Data may include Personal Information of individuals located in the European Economic Area and wishes to enter into a Data Processing Agreement ("DPA") in accordance with the GDPR, the Customer may do so by submitting a request via email to contact@smilesim.com. Upon receipt of the Customer's request, SmileSIM will send the Customer a Data Processing Agreement.

9. Pricing and Taxes

1. For the Software Modules, SmileSIM offers subscription-based pricing, payable on an annual or monthly basis. The Customer agrees to pay all fees charged by SmileSIM for the use of the software Services under this Agreement, in accordance with the applicable Orders and Subscriptions (collectively referred to as "Subscription Fees"). Unless otherwise specified: (a) prices are set forth on the Price Page; (b) Subscription Fees are based on annual or monthly periods (or proportional portions of such periods, calculated on a daily basis); (c) SmileSIM will process the Order only after receiving payment from the Customer; (d) Subscription Fees are billed in advance at each monthly or annual renewal date, as applicable; (e) Fees are payable in the local currency; (f) Payment obligations cannot be canceled, and amounts paid are non-refundable.
2. Except in exceptional circumstances justified under this Section 9.2, if the Customer fails to make payment on time, without prejudice to SmileSIM's other rights and remedies: (a) SmileSIM will grant a grace period of 15 days for the payment of the outstanding amount, and (b) if such situation exceeds the grace period, SmileSIM may suspend the Customer's and its Authorized Users' access to the Services until such amounts are fully paid. (c) Unpaid amounts may be subject to interest at a rate of 1.5% per month or the the highest rate permitted under Applicable Law, whichever is less, plus collection costs, including reasonable attorney fees and actual expenses incurred. The suspension will not relieve the Customer of the obligation to pay the amounts due. The Customer must submit any dispute in writing within 10 days of receiving the proforma/invoice that gave rise to the dispute. SmileSIM will not exercise its suspension or termination rights if the Customer cooperates reasonably to resolve the dispute.
3. If the Customer pays the Subscription Fees using a credit card or any digital payment method accepted by SmileSIM, the Customer authorizes SmileSIM to debit the Customer's account for Services using that payment method. The Customer must keep all billing information up to date to ensure that all Subscription Fees are collected into the corresponding account and paid on time. If the Customer notifies SmileSIM to stop using a previously designated payment method and fails to designate an alternative, SmileSIM may immediately suspend the use and access to the Services. Any notice from the Customer regarding changes to the billing account will not affect the amounts that SmileSIM sent to the Customer's billing account before SmileSIM could reasonably act on the Customer's request. SmileSIM uses a third-party intermediary to handle credit card processing, and this intermediary is not permitted to use the Customer's credit card information except in connection with the Customer's authorized purchases. Notice (including email) from the credit card processor of SmileSIM, which rejects the Customer's credit card or otherwise refers to the Customer's account, will be deemed a valid notice from SmileSIM.
4. All Subscription Fees exclude taxes or fees imposed by governmental authorities (collectively, "Taxes"). The Customer shall be solely responsible for any Taxes on amounts payable by the Customer under the Orders and this Agreement (other than any Taxes on Smilesim’s income, revenues, gross receipts, personnel, or assets). Without limiting the foregoing, if the Customer is required to deduct or withhold any Taxes under Applicable Laws, the Customer shall remit such Taxes in accordance with those Applicable Laws, and all amounts payable shall be increased so that SmileSIM receives an amount equal to the sum it would have received if no deduction or withholding had been made.

10. Payment Methods

1. The Customer may use the following credit/debit cards: Visa, Visa Electron, Mastercard/Eurocard, Maestro, including virtual Visa or MasterCard cards. For payment with the credit/debit card method, SmileSIM will process the Order immediately. For payments made by bank transfer, SmileSIM will process the Order only after confirmation of the credit to the Netopia – mobilPay account with the transferred amount, resulting in a 2-4 day delay, as the case may be.
2. Netopia - mobilPay guarantees the security of its information systems in accordance with Netopia - mobilPay Privacy Policy.
3. In the case of the 3-D Secure system applied by Netopia - mobilPay for payment with Visa or MasterCard cards, no information related to the Customer's card is transferred or stored at any time on SmileSIM's or Netopia - mobilPay's servers; instead, this information is directly entered into the Visa or MasterCard systems, as appropriate. Furthermore, in the event the Customer's card was issued by a bank certified in the 3-D Secure system, the transaction authorization will only take place after the Customer is authenticated in this system – by entering a secret code/password known only to the Customer, similar to a PIN code for ATM transactions. For full details regarding the 3-D Secure system, please refer to Verified by Visa and SecureCode.
4. If the card is associated with an account in a currency other than RON, the transactions will be conducted in lei, at the exchange rate of the issuing bank for that card.

11. Refund, Cancellation Policy

1. SmileSIM offers content and software Services. By placing the Order, you agree that we can provide you with access to the content and software Services you purchased immediately after we accept your Order. This means that you are not entitled to a refund if you change your mind after we have provided you with access to the content and software Services purchased by you.

12. Subscription Renewal

1. Unless either party sends written notice to the other party of its intention not to renew a Subscription at least 15 days before the expiration date of the current Subscription, the Subscription will automatically renew for an additional period of the same duration as the Subscription's expiration period ("Subscription Renewal Term"). The subscription renewal will be at the price displayed on the Price Page at the time of renewal.

13. Proprietary Rights

1. Between the Parties: (a) The Customer owns all rights, titles, and interests in the Customer environment and Customer Data, including all associated Intellectual Property Rights, and (b) SmileSIM owns all rights, titles, and interests in and to the Services, Documentation, and Feedback, including all associated Intellectual Property Rights, in each case except for the rights expressly granted by one party to the other under this agreement. All rights are reserved by the granting party, except as expressly provided by the other party.

14. Confidentiality

1. 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 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.
2. 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.

15. Disclaimers

1. 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.,
2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES, SUPPORT 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 14, SmileSIM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION 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.

16. Term and Termination

1. The term of this Agreement will continue through the expiration or earlier termination of the last Subscription to be in effect.
2. Subject to Section 9.2, SmileSIM may terminate any Subscription upon written notice to Customer if Customer fails to pay any amount due under the Subscription, and such failure continues more than 15 days after SmileSIM’s delivery of written notice. In addition, either Party may terminate all Subscriptions and this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach (if capable of cure) remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
3. Upon expiration or earlier termination of a Subscription: (a) subject to Section 16.5, all rights granted to Customer with respect to Services under such Subscription will terminate effective as of the effective date of termination; (b) subject to Section 16.5, SmileSIM will have no obligation to provide Services to Customer or Authorized Users after the effective date of the termination; and (c) Customer will, subject to Section 16.4, pay to SmileSIM any Fees payable for Customer’s and any Authorized User’s use of Services through the effective date of the termination, together with all other amounts in accordance with the Subscription and this Agreement.
4. If a Subscription is terminated early by Customer pursuant to Section 16.2: (a) Customer shall not be obligated to pay any additional amounts specified in the Subscription following the effective date of termination and (b) SmileSIM will refund to Customer a pro rata share of any unused amounts prepaid by Customer under the applicable Subscription for the Services on the basis of the remaining portion of the current Subscription Term (a “Pro-Rated Refund”). In all other cases, and regardless of whether Customer uses the Services at the levels reflected in the Subscription or otherwise, Customer will not be entitled to a refund of Fees paid and any unpaid Fees outstanding will become immediately due and payable.
5. Provided Customer has paid all amounts due under this Agreement, and 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 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 Services other than to download Customer Data.
6. 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: 6.3, 7.2, 8, 13 through 18, and 20 through 25.

17. Indemnification

1. In the event that a third party asserts a claim against the Customer alleging that the Service, as acquired under the Contract, infringes a patent or copyright, SmileSIM shall (a) indemnify and defend the Customer against such claim and (b) pay the amounts awarded in final judgment against the Customer or included in an approved settlement by SmileSIM. To be entitled to such indemnification and payment from SmileSIM, the Customer must (i) notify SmileSIM in writing about the claim, (ii) provide the information requested by SmileSIM, and (iii) allow SmileSIM to control and reasonably cooperate in the defense and resolution, including mitigation efforts.
2. SmileSIM shall have no responsibility for claims based on non-SmileSIM products and services, non-SmileSIM supplied articles, or any infringement of law or third-party rights caused by the Customer's Data or other materials.
3. If a third party asserts a claim against SmileSIM alleging that the Customer's Data infringes a patent or copyright or violates a confidentiality right, the Customer shall (a) indemnify and defend SmileSIM against such claim and (b) pay the amounts awarded in final judgment against SmileSIM or included in an approved settlement by the Customer. To be entitled to such indemnification and payment from the Customer, SmileSIM must (i) notify the Customer in writing about the claim, (ii) provide the information requested by the Customer, and (iii) allow the Customer to control and reasonably cooperate in the defense and resolution, including mitigation efforts.
4. This Section (17) states the entire obligation of each party and the exclusive remedy with respect to third-party claims described in this section.

18. Limitations of Liability

1. The entire liability of a Party for all claims arising out of or in connection with the Contract (regardless of the basis of the claim) shall not exceed any actual direct damages suffered by the other Party up to the total amount paid by the Customer under this Contract in the twelve (12) months preceding the first event giving rise to liability.
2. Neither Party shall be liable for either (a) special, incidental, exemplary, or indirect damages, or any consequential economic damages, or (b) loss of profits, business, value, revenues, commercial goodwill, or anticipated savings.
3. The following are not subject to the limitations in Section 18.1 and the exclusions in Section 18.2: (a) indemnification payments of a party as provided in Section 17 (Indemnification) and (b) damages that cannot be limited under applicable law.

19. Publicity

1. Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that SmileSIM may (subject its obligations of non-attribution under Section 6.3) include Customer’s name and logo in its lists of Datadog customers, its public website and other promotional material. SmileSIM agrees to promptly cease such uses of Customer’s name and logo following Customer’s request sent to contact@smilesim.com.

20. Notices

1. Subject to change pursuant to this Section: (a) SmileSIM’s physical address for notices is that of its Romania, Bucuresti Sector 1, Strada Tudor Vianu, Nr. 3 and its email address for notices is contact@smilesim.com and (b) Customer’s physical and email addresses for notices are those associated with its Order(s). Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given: (i) one business day after being sent by overnight courier to the Party’s physical address; (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one business day after being sent by email to the Party’s email address (provided that (1) the sender does not receive a response that the message could not be delivered or an out-of-office reply and (2) any notice for an indemnifiable Action must be sent by courier or mail pursuant to clause (i) or (ii)). Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.

21. Assignment

1. So long as Customer remains current in the payment of all amounts when due, Customer may assign this Agreement in connection with any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity), or a sale of all or substantially all of Customer’s business or assets relating to this Agreement to an unaffiliated third party. Subject to the foregoing, Customer may not assign any of its rights or obligation under this Agreement, whether by operation of law or otherwise, without SmileSIM’s prior written consent, and any purported assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

22. Independent Parties

1. The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one Party as an employee, agent, joint venture partner or servant of another. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

23. Force Majeure

1. Neither Party shall be liable or responsible to the other Party, 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 (except for any obligations to make payments), 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 (each of the foregoing, a “Force Majeure Event”), in each case, provided the event is outside the reasonable control of the affected Party, the affected Party provides prompt notice to the other Party, stating the period of time the occurrence is expected to continue, and the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

24. Miscellaneous

1. This Agreement, together with all Orders and, as and if applicable, Supplemental Terms and DPA, 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 Services or otherwise with respect to the Services. Except as otherwise provided in Section 25, 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.

25. Changes to this Agreement

1. SmileSIM may revise this Agreement from time to time by posting the modified version on its website. If, in SmileSIM's sole discretion, the modifications proposed are material, SmileSIM shall provide Customer with notice in accordance with Section 20 (Notices) at least thirty (30) days prior to the effective date of the modifications being made. By continuing to access or use the Service after the posted effective date of modifications to this Agreement, Customer agrees to be bound by the revised version of the Agreement.