Terms Of Use Regarding Simplifai’s Software Solutions

Revision: 29th August 2022

1. The Parties

1.1 Simplifai AS, a limited liability company incorporated under the laws of Norway, bearing the Norwegian organisation no. 918 938 877 – and having its registered address at Drammensveien 133, 0277 Oslo, Norway (“Simplifai”)

1.2 The company or any commercial entity other than a consumer regardless of incorporation who has legal access to the Software by means of an agreement with Simplifai or any Simplifai Partner (“the Customer”)

1.3 Affiliates; any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party or a Customer. For purposes of this definition “control” means the possession of a majority of the outstanding voting securities of an entity or the power to otherwise direct the affairs of the applicable entity.

1.4 “Partner;” an entity authorised by Simplifai to market Simplifai’s products and services and faciliate the contractual relationship between Simplifai and the Customer. Unless expressly stated, the Partner will not be a subcontractor of Simplifai as the Partner will be acting in a separate and independent manner, including if/when processing any personal data belonging to the Customer.

2. The Software

2.1 The software (“Software”) is a cloud-based system where the Customer is granted access to a web interface in order to configure and train the Software to Customer’s needs either in cooperation with a Simplifai Partner or as outlined in the agreement with Simplifai. Simplifai may, at Simplifai’ s discretion, provide limited and general instructions on training and use of the Software on the web interface and Customer will have access to such material if and where available. Such material will not provide specific information or advice regarding the Customer’s particular installation and/or training of the Software but will aim to improve Customer’s knowledge of the features of the Software.

2.2 The Software may also include specific additional items delivered by Simplifai, to be installed on Customer’s website or integrated into Customer’s other software solutions, such installation and/or integration may be performed by Simplifai alone or in cooperation with any Simplifai Partner. Scope and deliverables of any such work will be defined in any specific agreement between the Customer, Simplifai, Simplifai’s Affiliates and/or any Simplifai Partner or by the Customer choices made during the Simplifai online sales procedure (“the Agreement”). Failing such specific Agreement, any and all work undertaken by Simplifai in connection with the Software will be on a “time and materials”-basis according to the then current price lists and subject to Simplifai’s standard Terms of Delivery available at https://www.simplifai.ai/terms-of-delivery. Simplifai will maintain and develop their solutions and the functionality and capacity of such software may consequently evolve throughout the duration of the Agreement. Updated descriptions of the Software will be available at the Simplifai’s web pages.

3. The Customer’s right of use

3.1 Grant of license: Simplifai grants the Customer, pursuant to the terms of these Terms of Use and Simplifai’s Data Processing Agreement at https://www.simplifai.ai/privacy/dpa, a subscription-based right to utilize the features of the Software outlined in the Agreement.

3.2 Customer’s subscription management: The Customer will be granted access to a dedicated web space “Customer Portal” as well as one or more user accounts according to the Agreement. The Customer may order additional Software licenses, user accounts, or other performance enhancing services through the Customer Portal.

3.3 The Customer may close any user account at any time. Closing a user account will block any use of the Software by the use of current password and login data. Simplifai shall not be liable for damage suffered by the Customer as a result of the Customer closing any user account.

3.4 Customer’s license: The Customer’s right of use is limited to the use reasonably considered necessary for obtaining reasonable functionality from the features in the Software and the Agreement and does not grant the Customer any rights beyond this. Simplifai will retain any proprietary-, intangible- and intellectual property rights to the Software and -solutions, including copyright to all adaptions configured specifically for the Customer, unless otherwise agreed in writing and enclosed to these Terms of Use.

3.5 Neither during the Agreement nor after it ceases does the Customer have the right to copy the composition of Software or any other parts of Simplifai’s work methods or other know-how. In order to protect Simplifai’s business secrets, Customer does not have the right to reverse engineer, decompile, or otherwise disassemble the Software. The Customer may not amend the Software or its adjoining proprietary-, intangible- and intellectual property rights in any way, hereunder perform modifications, enhancements or improvements or facilitate other products or services that are derived from these rights.

3.6 The Customer cannot exploit the results or intangible rights generated by the use of the Software in any other way than described in the right of use above, unless otherwise specifically set out in the Agreement in writing.

3.7 The Customer’s right to use the Software is subject to the Customer having paid the agreed remuneration to Simplifai.

3.8 At the end of the Agreement for whatever reason, the Customer’s right to use any and all material governed by copyright and/or other proprietary rights, which Simplifai or the Partner has given the Customer access to under the duration of the Agreement, and/or the right to use Simplifai’s data, will automatically cease.

3.9 Changes to the terms: If required in Simplifai’s reasonable opinion, Simplifai may change the content of these Terms of Use and/or the DPA defined in Clause 3.1 with three weeks’ notice as outlined in Clause 3.10. The change will take effect from the expiry of the notice period.

3.10 Notices: Any notices from Simplifai under this Agreement will be placed on the Customer Portal as defined in Clause 3.2 or be sent by e-mail to the super user defined by Customer in the original License Order Form or by means of the Customer Portal.

3.11 Beta versions: From time to time, Simplifai may make Beta Software available to Customers at no charge. Beta Software is intended for evaluation purposes and not for production use, is not supported, may have deficiencies and errors, and may be subject to supplemental terms and conditions. Such supplemental terms will be made available in the Customer Portal when the Beta Software is made available.

3.12 The Customer is allowed to test such Beta Software at the Customer’s sole discretion and subject to the conditions in this Terms as well as any supplemental terms, however, Simplifai will not be liable for any damage arising from the use of such Beta Software, including but not limited to loss of data inserted into the Beta Software or any time spent on training and configuring the Beta Software. Unless otherwise stated any Beta Software trial period will expire upon the date that a version of the Beta Software becomes generally available without the Beta Software designation. Simplifai may discontinue Beta Services at any time at Simplifai’s sole discretion and Simplifai may choose to never make them generally available.

4. Indemnity for violation of third party rights

4.1 Simplifai is obliged to provide the Customer with the necessary licenses to enable the delivery of the Software to the Customer throughout the term of the Agreement. Simplifai shall indemnify the Customer for any claims that sub-suppliers raise against the Customer for breach of their intellectual property rights. The Customer shall immediately notify Simplifai of such claims.

4.2 The Customer shall indemnify Simplifai for claims arising from a third party claiming that data, software, know-how or services that the Customer uses when accessing services or is stored using Simplifai services, violates any copyright or proprietary rights or the rights of data subjects under applicable data protection law.

4.3 Notwithstanding Clause 13, the Customer shall indemnify Simplifai against any costs, claims, expenses (including reasonable legal costs) damages, liabilities, fines, actions, and proceedings brought against Simplifai by any third party (including but not limited to data subjects) arising out the Customer’s breach of applicable data protection legislation, misuse of data under the Customer’s control or these Terms of Use.

4.4 Both Parties have the right, at their own expense, to assume the defense of the claims that they shall indemnify the other Party under this provision.

5. Development

5.1 Simplifai has the right to develop the Software throughout the term of the Agreement, including development based on data and experience gained as a result of the Agreement. In order to benefit from this development, the Customer hereby grants Simplifai a non-exclusive, worldwide, irrevocable and transferrable license to copy, store and process Customer’s data as provided to Simplifai, in an anonymized version for product improvement purposes only. Under no circumstance will Simplifai sell Customer’s data or use Customer’s data for any other purpose than product development and/or product improvement. Simplifai may also choose to discontinue certain functionality in present versions of the Software at Simplifai’s sole discretion. The Customer will be notified through the Customer Portal of any such plans. If the planned changes in the Software’s functionality will affect any integrations the Customer has made or impact any business functions in a material way, the Customer will have the right to terminate the Agreement when the notified change is implemented, regardless of the expiry date of the Subscription Term.

5.2 If Simplifai develops a new version of the Software with substantially modified properties compared to the version that the Customer has been given access to, the Customer shall be notified when the version is completed. The Customer shall then have the right to request access to the new version for test purposes.

5.3 If the Customer wants to implement the new version on the commercial terms applicable to that version at the time Customer places the order, Simplifai is obliged to offer such work as is necessary to grant Customer access to that version, provided that Simplifai has available capacity. Such work is carried out on a time and materials basis.

5.4 The Customer acknowledges that the provision of new versions of the Software may be contingent on the use of Simplifai’s subsidiaries and their processing of the Customer’s personal data in accordance with the Data Processing Agreement at https://www.simplifai.ai/privacy/dpa

5.5 Simplifai will only guarantee that language modules and software can be integrated with later versions of the Software if these are not adapted to the Customer’s needs in a way that makes them incompatible with later developed solutions. If, after delivery, the Customer has modified the Software in a manner that makes it difficult to integrate a new version of the Software with the Customer’s solution, Simplifai shall notify the Customer of that fact. Existing and prior versions of the customer-facing APIs will be maintained for a minimum period of 3 years after the first release of the API in order to ensure that Customer’s adapted customization will remain operational even if these products are no longer compatible with the latest version of the Software.

6. Personal data

6.1 To the extent Simplifai processes personal data on behalf of the Customer, such processing shall be governed by the Data Processing Agreement available at: https://www.simplifai.ai/privacy/dpa. However, processing shall be governed by Simplifai’s privacy policy available at: https://www.simplifai.ai/privacy/privacy, when the datasubject is Simplifai’s contact person at the Customer, or if the Customer is a Simplifai partner.

6.2 The Customer acknowledges that Simplifai is not responsible for neither a Partner’s nor the Customer’s processing of personal data belonging to the Customer’s own end users. Simplifai’s role as an independent data processor shall be limited to the purpose of providing and operating the Software for the benefit of the Customer. The Customer is strongly encouraged to read the privacy policy, data processing agreement or any other terms and conditions of any Partner who processes its personal data and Simplifai disclaims any responsibility or liability for the Partner’s processing of such data.

6.3 The Customer is solely responsible for determining whether it can utilize the Software in accordance with applicable data protection legislation and warrants that in carrying out its obligations under these Terms of Use it will not breach applicable data protection legislation or do or omit to do anything that might cause Simplifai to be in breach of the same.

7. Confidentiality

7.1 All information that the Parties gain access to, or knowledge of, in connection with the performance of the Agreement, shall be considered confidential information unless the information in question is demonstrably publicly available at the time the information was transferred.

7.2 The parties are required to take reasonable precautions to safeguard confidential information and shall at the minimum treat the information obtained in a manner similar to the way the receiving Party safeguards its own confidential information.

7.3 The Parties’ employees or sub-suppliers may be granted access to confidential information to the extent necessary for the proper and efficient performance of the Agreement. The receiving Party is responsible for ensuring that those who are given access to such information are made familiar with the confidentiality provisions laid down by these Terms of Use and impose on the person(s) concerned the same confidentiality as under this provision.

7.4 The Parties’ duty of confidentiality shall not apply to information which is required to be disclosed pursuant to legislation, applicable accounting or specific regulations or by order of a governmental authority, supervisory or regulatory body or a court or arbitral tribunal of competent territorial and subject-matter jurisdiction. The Parties shall render each other all necessary assistance in complying with information requests from such regulatory authorities and/or court orders.

7.5 Following the termination of the Agreement, both Parties undertake to return confidential information received from the other Party in connection with the Agreement.

7.6 This confidentiality provision applies from the time of contract until three years after termination of the Agreement.

7.7 Simplifai has the right to refer to the Customer’s choice of Simplifai’s services and the type of services provided in connection with sales and marketing activities.

8. Payment and term

8.1 Term: The Agreement is concluded for an initial term of 1 year unless otherwise defined in the Agreement or resulting from the selections made by Customer during the Simplifai online sales procedure (the “Subscription Term”), during which the Parties may only terminate for cause.

8.2 Unless the Customer terminates their Software license in accordance with the terms of the Agreement, the license will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. If not defined in the Agreement, the minimum notice period for termination is 30 days prior to the expiry of the current Subscription Term. The fees applicable to any such subsequent Subscription Term shall be Simplifai’s standard subscription charges at the date of renewal.

8.3 Payment: Unless otherwise stated in the Agreement in writing or resulting from the selections made by Customer during the Simplifai online sales procedure, the following terms apply:

a)    The applicable license fees will be invoiced annually in advance. The consumption fees and any additional user accounts ordered will be invoiced based on monthly consumption, such consumption figures will be available in the Customer Portal for Customer inspection.

b)   Unless the Parties have agreed on a fixed price term, Simplifai may change the fees with effect for existing Agreements as of June 30th and December 31st. Changes to an agreed fixed price will only apply after the expiry of the agreed term. Any changes will be notified under the relevant notice form in Clause 3.10 two weeks in advance.

c)    The Customer may order additional Software licenses, user accounts, or other performance enhancing services through the Customer Portal. The Customer will obtain immediate access to the items ordered which will again be invoiced on the monthly invoice. Any and all such additional services will be payable for the entire Subscription Term and will be automatically renewed for the subsequent Subscription Term unless canceled by the Customer with 30 days written notice before the expiry of the present Subscription Term.

d)    If the Customer terminates the Agreement and/or closes all user accounts prior to the end of the then-current Subscription Term, no refunds or credits will be provided for the remainder of the Subscription Term. In no event will termination relieve the Customer of Customer’s obligation to pay any fees payable to Simplifai for the period prior to the effective date of termination.

8.4 Free trial periods: Simplifai may offer free trial periods, either as a part of the Agreement or by other means. Unless otherwise stated in the Agreement in writing, the following terms apply for such free trial periods:

a)    Simplifai will make the Software subject to the free trial available to the extent defined in the Agreement and/or any binding offer made by Simplifai to Customer and on the Terms of Use defined by Simplifai for such trial use available at www.simplifai.ai/terms-of-trials

b)    Simplifai will allow the Customer to access the Software free of charge until the first of these events take place; the expiry of the defined trial period, the Customer purchase a license to the Software, or Simplifai in their sole discretion choose to terminate the free trial access for whatever reason.

c)    Customer is notified that any data entered into the Software, any configurations, customization, or training made by the Customer during the training period, will be permanently lost unless the Customer purchase a Software license for the software tested before the end of the trial period.

9. Compliance with laws

9.1 Simplifai controls and operates the Software from its offices in Norway. Unless expressly stated, Simplifai does not represent that the Software is appropriate, or available for, or legal to use, in other locations. Those who choose to access and use the Software from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

9.2 If applicable, Simplifai adheres to the strict requirements of the GDPR with respect to its processing of personal data. Where Simplifai’s provision of the Software is not subject to the GDPR or other specific jurisdictions defined in by Simplifai in the Agreement and/or the data protection legislation in force at the Data Center location of the Customer’s choice, Simplifai will still endeavour to maintain a level of data protection as required by the GDPR.

9.3 Simplifai will store customer data at one of the available Data Center locations as defined by Simplifai in the Agreement, according to Customer’s choice, subject to availability, and in compliance with Clause 9.2:

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If the Customer does not make a choice and/or the Customer’s choice is or subsequently becomes unavailable for whatever reason, the data will be stored in Europe.

9.4 To the extent permissible pursuant to applicable law, even if Simplifai or one of its authorised representatives has been advised of the possibility of liability, Simplifai exclude and disclaim all liability for any costs, expenses, work stoppage, loss, damage, claim, action or liability, whatever and however caused without limitation, resulting from Simplifai’s failure to comply with any obligations or requirements under any non-EU/EEA data protection legislation that becomes applicable due to the Customer’s Agreement with Simplifai or the Customer’s use of the Software, unless the Customer has informed Simplifai of such obligations or requirements and Simplifai has agreed to comply with them prior to providing the Software.

9.5 Unless otherwise expressly agreed, the Customer undertakes to indemnify and hold Simplifai and its employees, shareholders, members and directors, harmless from any and all costs, expenses, work stoppage, loss, damage, claim, action or liability incurred by Simplifai or the aforementioned individuals on the account of a breach by either Simplifai or the individuals of any non-EU/EEA data protection legislation as described in Clause 9.3.

10. Service Quality / Warranties

10.1 Simplifai shall correct technical errors in the Software and/or misinformation in the information available for the Customer at Simplifai’s cost and risk, however, any adjustment or additional training of the Software required by the Customer will be on ordinary time and materials-basis.

10.2 The Customer shall test the Software on delivery/download and promptly issue a report through Customer Portal if the Customer discovers any deficiencies. The Customer acknowledges that Simplifai’s maintenance, support and/or correction of any technical errors may be contingent on the use of Simplifai’s subsidiaries and their processing of the Customer’s personal data in accordance with the Data Processing Agreement at https://www.simplifai.ai/privacy/dpa.

10.3 After delivery/download the following standard procedure for reporting and correction of technical errors in the Software shall apply unless otherwise specified in writing in the Agreement:

a)    The Customer shall classify errors and deviations and report any undesirable incidents to Simplifai without undue delay.

b)    Unless otherwise specified in the Agreement, the following error definitions shall apply and Simplifai shall commence corrective work within the Response Time defined below.

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10.4 Regarding A-level issues, Simplifai shall continue working until the issue has been resolved and keep the Customer continuously updated as to progress. Modalities of work regarding the correction of B- and C-level issues will be agreed with Customer on a case-by-case basis. If Simplifai can document, in retrospect, that the Customer’s classification was incorrect, and the erroneous classification has imposed costs on Simplifai, the Customer shall cover the direct documentable and necessary costs of Simplifai in relation to the erroneous classification.

11  Service level and availability

11.1 Simplifai’s Service Commitment: 99.2% Availability: Simplifai will make all commercial efforts to ensure that the Software remains available and free of technical errors at an Availability rate of 99.2% measured by a monthly invoicing period. Unless the downtime is a result of issues described in Clause 11.4, Simplifai will pay a rebate defined in Clause 11.3 if the said availability is not met.

11.2 Definitions regarding service levels: Regarding the Service Commitment, the following terms shall have the following meaning:

a)    “Available” – the Software is available online and responds to incoming requests.

b)    “Implemented Licenses” – the licenses including Software licenses and user accounts operational for the Customer during the calendar month impacted by Unavailability.

c)    “Maintenance” – planned downtime notified by Simplifai in advance of the Software becoming unavailable.

d)    “Monthly Percentage of Availability” – a figure calculated by subtracting the number of minutes the Software has been Unavailable during a calendar month from 100%.

e)     “Unavailability/ Unavailable” – the Software is not operational or cannot be reached due to circumstances that are Simplifai’s responsibility and not issues that are directly or indirectly related to those described in Clause 11.4.

11.3 Service Commitment and rebates:

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11.4 Situations where Simplifai cannot warrant the Service Commitment: Simplifai cannot warrant the availability defined in Clause 11.1 in cases where the Unavailability is directly or indirectly due to

a)       circumstances outside Simplifai’s control such as force majeure, lack of internet access or problems outside Simplifai’s network;

b)      actions or omissions by a Simplifai Partner, the Customer or other third parties, such as downtime or problems in the Microsoft Azure-environment;

c)       equipment, software or other technology under a Simplifai Partner or other third party control;

d)       planned and notified maintenance or emergency maintenance deemed imperative by Simplifai.

12. Third party integrations and development

12.1 Simplifai has no liability for any development, integration, implementation or training by Customer or Partner or any third party, nor functionality that is developed through training the system, including but not limited to any express or implied warranties that such developments remain stable during the term of these Terms of Use.

12.2 Integrations of Simplifai’s software with the Customer’s other software systems and/or suppliers, as well as Customer adapted software, may have to be modified due to development of the Customer’s other suppliers/software. Simplifai has no liability for such changes.

12.3 Except the items specified in Clause 10, these Terms of Use do not include any other warranties. Simplifai does not warrant that the Software is fit for any specific use, nor that the Customer will be able to train the Software to perform to any defined standard based on the Customer’s data, the training performed by the Customer’s personnel or any assistance by any partner or Simplifai. Simplifai does not issue any guarantee regarding any specifically agreed support- and service assignments beyond those explicitly covered by the terms of these Terms of Use.

13. Liability

13.1 Unless otherwise agreed, Simplifai’s liability shall be limited as follows:

1.     No compensation for indirect losses may be claimed. An indirect loss is, but is not limited to; the Customer’s loss of profit of any kind, loss due to interrupted operations, loss of use, loss of data, as well as third party claims.

2.     If a price reduction is agreed due to a reduction of service level, the price reduction shall be considered a complete settlement of Simplifai’s liability, and any further compensation for such circumstances during the compensation period will be barred.

3.     The maximum liability incurred by Simplifai, whether resulting from contract or tort (including liability for negligence or breach of statutory duty) or otherwise, including price reduction due to reduced service level or recourse claims for privacy-related fines and damages, shall not exceed an amount equal to the licence fee for three months excluding VAT, calculated on the basis of previously invoiced fees.

Other claims for compensation than those arising from this provision cannot be claimed between the Parties.

14. Exit management

14.1 Upon written request issued no later than five working days before the termination date for whatever reason, Simplifai will transfer data regarding the Customer’s use of the Software to Customer. The request must contain sufficient information regarding API and transfer modalities. Simplifai may charge any cost spent on a time and materials basis. Simplifai will retain copies of data regarding Customer’s use of the Software for warranty purposes and may also retain anonymised customer data for product improvement and –development purposes, cf. the license in Clause 3 which will remain in full force and effect after the expiry of this Agreement.

15. Assignment

15.1 The Parties are entitled to assign its rights and duties under these Terms of Use to other legal entities in the same corporation. Transfer of duties under the Agreement to a third party requires the other Party’s written consent. Changes in the ownership structure of any Party is not to be considered a transfer of rights under these Terms of Use.

16. Force Majeure

16.1 If the performance of the Parties’ obligations is prevented by unforeseen circumstances beyond the Parties’ control, the Parties’ obligations will be suspended. The Party claiming Force Majeure shall notify the other Party without undue delay. None of the Parties are entitled to additional payment or compensation as long as the Force Majeure period lasts.

16.2 Each Party may terminate the Agreement if a substantial part of its performance is prevented for more than 60 days. The Customer shall pay the agreed price for the part of the work/licenses available that was contractually delivered before the termination of the Agreement.

17. Choice of law and disputes

17.1 The Parties’ contractual relationship is governed by Norwegian law, without regard to its choice of law principles.

17.2 Disputes relating to these Terms of Use, which cannot be settled by negotiations between the Parties, shall be settled by the ordinary courts, with Oslo District Court as the legal venue.

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