Terms, Firely Products

Firely Terms of Service for Products

Version 2.0, November 15, 2023 

US Customers 

These Terms of Service (“Terms”) govern the supply and use of the Products or Services between Firely USA, Inc., a Delaware corporation with offices located at 228 East 45th Street, Suite 9E, New York, NY 10017, USA, and Customer. All agreements between Firely, Inc. and Customer are subject to these Terms. By creating an account on Simplifier.net, or by purchasing a license or subscription to a product by Firely, Customer agrees to be bound by these Terms.  Firely USA, Inc. and Customer may be referred herein collectively as the “Parties” or individually as a “Party”.  

All other Customers 

These Terms govern the supply and use of the Products or Services between Firely B.V., with its registered offices at Westerdok 442, 1013 BH Amsterdam, The Netherlands, and Customer. All agreements between Firely B.V. Inc. and Customer are subject to these Terms. By creating an account on Simplifier.net, or by purchasing a license or subscription to a product by Firely, Customer agrees to be bound by these Terms. Firely B.V. and Customer may be referred herein collectively as the “Parties” or individually as a “Party”.

  1. Definitions

    1. Account” means the account Customer creates to use the Simplifier Platform. 
    2. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Firely in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Simplifier Platform. 
    3. API” means the Application Programming Interface developed by Firely, which can be used, among other things, to extract data from the Simplifier Platform or connect a product and/or solution of the Customer to the Simplifier Platform. 
    4. Authorized User” means Customer’s employees, consultants, contractors, affiliates, and agents who are authorized by Customer to use the Simplifier Platform strictly on the Customer’s behalf.  
    5. Business Days” means any day other than Saturday, Sunday, or a public holiday in the United States (for US Customers) and in the Netherlands (for all other Customers). 
    6. Content” means all computer programs, source code, data, or other material which can be obtained through the Simplifier Platform. 
    7. Contract” means any agreement for Services, such as a Simplifier Paid Plan or a license to access and use the Firely Products. 
    8. Customer” means any person or entity that executes a Contract with Firely B.V. or Firely USA, Inc.  
    9. Firely” means Firely B.V., with its registered offices at Westerdok 442, 1013 BH Amsterdam, The Netherlands and Firely USA, Inc., a [insert state of incorporation] corporation located in [insert state and city], USA. 
    10. Firely Products” means all software that belongs to Firely, including the Simplifier Platform, and the Firely Server. 
    11. Simplifier Paid Plan” means an upgrade to the default Account which grants an Authorized User additional features as specified on the Simplifier Platform. 
    12. Simplifier Platform” means the website Simplifier.net that can be accessed by Customer and the services provided by Firely related thereto (e.g., hosting, maintenance, bug fixing). 
    13. Services” means all services that Firely delivers to the Customer, such as the right to access and use the Simplifier Platform, the right to access and use the Firely Products, such as the Firely Server, and any other services provided by Firely related thereto (e.g., maintenance, support, advice, training, hosting, and cloud services). 
  2. Applicability of the Service Terms  

    1. Unless expressly agreed to otherwise in writing between the Parties, all offers, orders, agreements, sales, or deliveries of software, subscriptions, use of the Simplifier Platform, or Services provided, performed, or made by Firely shall be governed by these Terms.  
    2. Firely reserves the right to amend these Terms at any time. The most recent version of the Terms shall be available on the Simplifier Platform and the Firely website. Customer will be notified by email of any upcoming amendments to the Terms. Amendments shall become effective on the date specified when the Terms are published. If Customer does not agree to the modified Terms, Customer must immediately cease use of the Services. Any derogations from the Terms shall only be valid if expressly agreed to in a writing signed by an authorized representative of the Parties.  
    3. These Terms shall always take precedence over any terms and conditions of Customer which shall not be enforceable against Firely. No other terms and conditions shall be binding on Firely unless accepted by it in a signed writing. Firely expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and shall not bind Firely. 
  3. Contracts

    1. Customer may request a Contract for a Simplifier Paid Plan or Firely Product, such as Firely Server, by contacting Firely.  After Customer contacts Firely, Firely will send Customer an agreement related to the Services. A Contract is entered into when the agreement has been executed by both Parties. 
    2. All Contracts are automatically renewed for the same period as the initial term until Customer or Firely terminates the Contract in accordance with Section 11 of these Terms. 
    3. The Terms apply to and are incorporated by reference into all Contracts. In the event of any inconsistency between the provisions of these Terms and the provisions contained in any Contract, the provisions in the Contract shall take precedence and prevail over these Terms. 
  4. Customer’s Simplifier Platform Account 

    1. When creating an Account, Customer must provide a name, a valid email address, and any other information requested by Firely to complete the registration process. The creation of an Account is free of charge but requires Firely to collect certain personal data from Customer which data is necessary for Firely to fulfil its obligations under the Terms. 
    2. An Account may only be used by one person. A single login shared by more than one person is not permitted. Customer and/or its Authorized User must keep their account information and password strictly confidential and not provide such Account login information to any unauthorized parties. Firely disclaims all liability for any loss or damage resulting from any breach by Customer and/or its Authorized User of its obligations hereunder.  
    3. Customer and/or its Authorized User is responsible for managing and protecting the Account. If Customer and/or any Authorized User becomes aware that the security of any Account login information has been compromised, Customer shall immediately notify Firely and deactivate such Account or change the Account’s login information. Authorized Users may only use the Services strictly on behalf of Customer and subject to these Terms. 
    4. If Customer and/or its Authorized User’s bandwidth usage on the Simplifier Platform significantly exceeds the average bandwidth usage of other Firely customers (i.e., fair use as determined by Firely), Firely reserves the right to throttle file hosting until Customer and/or its Authorized User has reduced bandwidth consumption. If Customer and/or its Authorized User, after having been notified by Firely of excessive bandwidth consumption, still exceeds the average bandwidth usage, Firely reserves the right to disable the Account. 
  5. Use of the Simplifier Platform

    1. The Simplifier Platform shall be made available by Firely as a remote service. Firely will make reasonable efforts to resolve issues with the Simplifier Platform as soon as reasonably possible.  
    2. The Content on the Simplifier Platform is created and made available by other users of the Simplifier Platform, without any intervention by Firely. All Content is provided on an “AS IS”, “WHERE IS” and “AS AVAILABLE” basis. Firely shall not be responsible or liable for any losses, damages, or claims arising out of the Content available on the Simplifier Platform. 
    3. FIRELY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FIRELY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FIRELY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, PRODUCTS, OR RESULTS OF THE USE THEREOF, WILL MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.  
    4. Firely reserves the right, at any time, to modify or discontinue, temporarily or permanently, the Simplifier Platform (or any part thereof). In case of discontinuation of the Simplifier Platform, Firely will make a reasonable attempt to notify Customers prior to such discontinuation. 
    5. Cancellation of a Simplifier Paid Plan by Customer and/or its Authorized User may cause a loss of access to Content, features, or capacity. Firely disclaims all liability for any losses, damages, or claims arising out of any such cancellation.  
    6. Firely shall have no obligation to repair Content, settings, or any other data that is uploaded to the Simplifier Platform that has been corrupted or lost. 
    7. Customer shall not use the Services for any purposes beyond the scope of the access granted under these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) rent, lease, lend, sell, resell, “white label” or rebrand, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; (v) reproduce the Services or any part of the Services, including any proprietary information, layout, or design of the software; (v) gain unauthorized access to, interfere with, disable, or disrupt the integrity or security of the Services; (vi) use or access the software or Simplifier Platform for any competitive purpose; (vii) perform benchmark testing relating to the Services; (viii) use the Services to store, publish, upload/download, transmit, or distribute material in violation of third-party privacy rights; (ix) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (x) use the Services to store, publish, upload or download, transfer, or distribute material which violates any third-party rights; (xi) violate any applicable law or regulation; (xii) duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without Firely’s express consent provided by an authorized Firely representative in a signed writing; or (xiii) authorize, permit, encourage, or enable any other individual or entity to do any of the foregoing.   
    8. Firely may collect and use Aggregated Statistics for several reasons including: (i) to provide the Services; (ii) for statistical reporting and use, provided that such data is anonymous and not personally identifiable; (iii) to monitor, analyze, develop, maintain, and improve the Services, including by providing such Aggregated Statistics to third-parties for the aforementioned purposes; and (iv) use the Aggregated Statistics to the extent and in the manner permitted under applicable law.  The right to use Aggregated Statistics shall survive the termination of these Terms, unless legally prohibited or Customer requests in writing upon termination that such use be limited to non-personally-identifiable data.  
    9. Customer and/or Authorized User may access the Simplifier Platform data via an API. Firely reserves the right, at any time, with or without notice, to modify or discontinue, temporarily or permanently, access to the API or any part thereof. 
    10. Abuse or excessively frequent requests to the Simplifier Platform via the API may result in temporary or permanent suspension of the Account’s access to the API. Firely will determine abuse or excessive usage of the API in its sole discretion. Firely will make a reasonable attempt to notify Customer prior to any suspension of access. 
    11. FIRELY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF FIRELY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM THE USE OF THE SIMPLIFIER PLATFORM, THE CONTENT, THE API OR THIRD-PARTY PRODUCTS THAT ACCESS DATA VIA THE API.  
  6. Uploading Content to the Simplifier Platform

    1. By uploading any data or Content to the Simplifier Platform, Customer grants Firely the right to save and host the Content. Customer represents and warrants that no third-party intellectual property rights prohibit uploading the Content to the Simplifier Platform. 
    2. By permitting Content to be viewed publicly, Customer grants Firely and all users of the Simplifier Platform the irrevocable right to download, use, and link to the Content. Customer represents and warrants that no third-party intellectual property rights to the Content prevent Customer from granting such rights. Customer represents and warrants that it is fully entitled to upload the data or Content and to grant other users full access and use of the Content. 
    3. Firely will make reasonable efforts that Customer and/or its Authorized User has exclusive access to Content on the Simplifier Platform which is uploaded and set to be viewed privately. Customer and/or its Authorized User may delete uploaded private Content from the Simplifier Platform. 
    4. Customer and/or its Authorized User shall not upload any “Personal Data” as defined under Article 4 of GDPR or under applicable U.S. law (federal or state), or any illegal Content, whether set to private or public access, such as material protected by intellectual property rights of third parties, worms, viruses, or any code of a destructive nature, or to upload, post, host, or transmit unsolicited messages (e.g., spam). 
    5. Customer shall: (a) defend Firely against any claim, demand, suit or proceedings made or brought against Firely by a third-party relating to or arising out of a claim that the Content uploaded by Customer and/or its Authorized User, or the use of the Simplifier Platform by any Authorized User, violates these Terms, infringes or misappropriates the intellectual property rights of a third-party, or violates applicable law; and (b) will indemnify and hold Firely harmless against any damages, and against attorneys’ fees incurred by Firely in connection with any such claim, demand, suit or proceedings, provided that Firely (i) promptly gives Customer written notice of the claim, demand, suit or proceedings; (ii) gives Customer sole control of the defense and settlement of the claim, demand, suit or proceedings, provided that Customer does not settle any claim, demand, suit or proceedings unless the settlement unconditionally releases Firely of all liability; and (iii) provides Customer all reasonable assistance, at Customer’s expense. 
    6. Firely may refuse or remove Content that breaches these Terms or any applicable law.  
  7. Firely Products

    1. When the Parties enter into a Contract relating to Firely Products, subject to and conditioned on Customer’s payment of fees and compliance with all other Terms, Firely grants to Customer a non-exclusive, non-transferable right to access and use the Firely Products in accordance with the terms and conditions herein and the Contract.  
    2. All Firely Products are provided on an “AS IS” basis. Firely shall have no obligation to maintain the Firely Products or to provide support to users and/or administrators of the Firely Products, unless specifically agreed upon in the applicable Contract. 
    3. Customer expressly acknowledge that Firely (or, as applicable, its licensors or suppliers) shall own and retain all intellectual property rights (whether or not specifically developed for Customer) with respect to the Firely Products and/or Services including all copies, modifications, extensions and derivative works thereof (“Firely IP”).  Firely IP includes but is not limited to authorship rights, copyrights, trade names, trademarks, patents, design rights, know-how, ideas, concepts, methods, processes, technologies, inventions, source code, domain names, and database rights (except for Content and data owned and uploaded by Customer, “Customer Data”).  
    4. “HL7” and “FHIR” are the registered trademarks of Health Level Seven International, Ann Arbor, MI USA. 
    5. Customer shall not: (a) modify, adapt, create derivative works from or translate any part of the Firely Products, (b) reverse engineer, decompile or disassemble the Firely Products or otherwise attempt to obtain their source codes, (c) remove or alter any copyright, trademark or other proprietary notice contained in the Firely Products, (d) reproduce, duplicate, copy, sell, resell or exploit the Firely Products, or (e) use the Firely Products in any manner that violate these Terms. 
    6. Firely may make updates, from time to time, for the Firely Products available. Firely may conditionally release, at Firely’s sole discretion, such upgrades to Customer and/or its Authorized User. All updates are subject to the applicable Contract and these Terms. 
    7. Firely’s obligations to make the Firely Products available and Customer’s rights to access and use the Firely Products are strictly limited to the object code of such Products and not the underlying source code. The source code of the Firely Products and the technical documentation related to such Products will not be made available to Customer, unless expressly provided in the Contract. 
    8. Customer and/or its Authorized User may only use the Firely Products strictly on behalf of Customer and subject to these Terms. 
    9. Customer and/or its Authorized User shall not upload any “Personal Data” as defined under Article 4 of GDPR or under applicable U.S. law (federal or state) to any website or other product hosted by or on behalf of Firely. 
    10. Firely will not have access to any data stored in Firely Products, such as the Firely Server, which are installed in the infrastructure of Customer.  Customer shall not grant access to Firely to any data stored in Firely Products, including any “Personal Data” as defined under Article 4 of GDPR or under applicable U.S. law (federal or state). A Data Processing Agreement is not applicable for Firely’s Products or Services. 
    11. Upon Firely’s request, Customer will promptly assist in any audit carried out by or on behalf of Firely relating to Customer’s and/or its Authorized User’s compliance with the restricted user rights described herein. Upon Firely’s request, Customer will allow Firely access to its premises and systems. Firely will treat as confidential information any confidential business information of Customer relating to the audit, provided that such information is not related to the use of the Firely Products. The audit will be performed no more than once per year, unless Firely has reasonable grounds to perform an audit more than once.  
    12. Immediately following the termination of any Contract, Customer will return to Firely all copies of the Firely Products that Customer has in its possession, unless Firely has notified Customer destroy them. Customer will promptly confirm that it has destroyed or otherwise disposed of such Products in writing. In addition, following the termination of any Contract, Firely will have no obligation to assist Customer in any data conversion or migration to another system, unless explicitly agreed upon between the Parties. 
  8. Payment

    1. Firely may adjust the fees for renewal of any Contract in its sole discretion (e.g., based on inflation or rising prices).  Firely will notify Customer in advance of any upcoming price changes. 
    2. For yearly payment plans and licenses, Firely invoices in advance on a yearly basis.  
    3. All fees are in Euros, or US Dollars for US Customers, as applicable and exclusive of all taxes, levies, or duties imposed by taxing authorities. 
    4. Payment is non-refundable. No refunds or credits are due for partial months of service, for upgrade/downgrade or for months not used in an open account. 
    5. Customer shall pay invoices within thirty (30) days of the invoice date and to a bank account indicated by or on behalf of Firely. Payment shall be made without any discount or setoff. 
    6. Customer shall not be liable for payment of wages to Firely’s employees or for payment of social insurance premiums and wage taxes. 
    7. If Customer fails to make any payment when due, without limiting Firely’s other rights and remedies: (i) Firely may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Firely for all costs incurred by Firely in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) without providing notice and disclaiming all liability to Customer, Firely may immediately suspend and/or terminate  (tussentijds opzeggen) Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. 
    8. If Customer fails to meet any of its obligations towards Firely and has not cured such a failure, even after having been notified of such a breach by Firely, Firely may, in its sole discretion, suspend the performance of its obligations towards Customer or discontinue the delivery of Firely Products and Services until Customer has cured the breach or has furnished to Firely, in Firely’s view, adequate security relating to the performance of its obligations. Firely may also, without liability to Customer, change the applicable payment terms and/or demand sufficient security before performing any other or new Services and/or delivering Firely Products. 
    9. Customer shall not suspend or set off its payment obligations towards Firely in connection with any claims it may have against Firely, unless Firely provides its express written consent. 
  9. Liability

    1. FIRELY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO FIRELY’S PRODUCTS, SOFTWARE AND/OR SERVICES. NEITHER FIRELY NOR ITS OFFICERS OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS, (AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO ALL SUCH PRODUCTS, SOFTWARE AND/OR SERVICES.  
    2. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL ACTIVITIES CONDUCTED THROUGH FIRELY’S PRODUCTS, SOFTWARE AND/OR SERVICES BY CUSTOMER’S USERS, EVEN IF SUCH ACTIVITIES WERE TO OCCUR WITHOUT CUSTOMER’S PERMISSION. FIRELY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE ACTS AND OMISSIONS OF CUSTOMER’S USERS THROUGH FIRELY’S PRODUCTS, SOFTWARE, AND/OR SERVICES.  NEITHER FIRELY NOR ITS OFFICERS OR EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS, (AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING OR RELATING TO ALL SUCH ACTS AND OMISSIONS. 
    3. IN NO EVENT SHALL FIRELY, ITS AFFILIATES OR ITS LICENSORS BE LIABLE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, BUSINESS, SALES, PROFITS (WHETHER ACTUAL OR ANTICIPATED), LOSS OF OR CORRUPTION TO DATA, OR INTERRUPTION OF BUSINESS. 
    4. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS TO THE CONTRARY, EXCEPT FIRELY’S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, FIRELY’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND (INCLUDING ANY GUARANTEE COMMITMENTS OR INDEMNITY OBLIGATIONS) SHALL NOT EXCEED THE TOTAL PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE DAMAGING EVENT OCCURRED. IN ANY EVENT, FIRELY’S TOTAL AGGREGATE LIABLITY SHALLY NOT EXCEED US$ 100,000 FOR US CUSTOMERS OR €100,000 FOR NON-US CUSTOMERS.  
    5. THE LIMITATIONS ON FIRELY’S LIABILITY ABOVE SHALL APPLY WHETHER OR NOT FIRELY, ITS EMPLOYEES, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING. 
    6. UNLESS PERFORMANCE IS IMPOSSIBLE FOR A PARTY TO PERFORM UNDER APPLICABLE LAW, LIABILITY OF THAT PARTY FOR BREACH OF ITS OBLIGATIONS UNDER THE CONTRACT OR THESE TERMS SHALL ONLY ARISE IF IT IS PROVIDED NOTICE OF SUCH A BREACH BY THE OTHER PARTY AND IF IT IS HAS FAILED TO CURE THE BREACH WITHIN A REASONABLE PERIOD OF TIME.  THE NOTICE OF BREACH SHALL CONTAIN A DETAILED DESCRIPTION OF THE FAILURE SO THAT THE PARTY THAT HAS FAILED TO MEET ITS OBLIGATIONS CAN CURE ITS BREACH. 
    7. ANY RIGHT TO COMPENSATION FOR DAMAGES IS CONDITIONAL ON THE NON-BREACHING PARTY PROVIDING NOTICE OF THE BREACH IN WRITING TO THE OTHER PARTY AS SOON AS REASONABLY POSSIBLE BUT NO LATER THAN FIVE (5) BUSINESS DAYS AFTER THE DAMAGING EVENT OCCURRED. ANY CLAIM FOR COMPENSATION FOR DAMAGES SHALL LAPSE UPON THE EXPIRATION OF A PERIOD OF TWELVE (12) MONTHS AFTER THE DAMAGING EVENT AROSE, UNLESS THE NON-BREACHING PARTY HAS INSTITUTED LEGAL ACTION FOR COMPENSATION BEFORE THE EXPIRATION OF THIS TWELVE-MONTH PERIOD. 
    8. CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD FIRELY, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF ANY USE OF THE FIRELY PRODUCTS, SOFTWARE AND/OR SERVICES OR BREACH OF THESE TERMS OR A CONTRACT, BY CUSTOMER OR ITS USERS. 
  10. Force Majeure 

    1. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms or any Contract, for any failure or delay in fulfilling or performing any term or contractual provision, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event“), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after these Terms become effective; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; (ix) defective condition of items, hardware, software or material of third parties which Customer advised Firely to use; and (x) bankruptcy or delays on the part of suppliers or subcontractors and failure by the Customer to provide Firely with the correct and complete information necessary to properly provide the Services. If a Force Majeure Event occurs either Party may temporarily suspend the performance of its obligations under these Terms.   
    2. Either Party may terminate (ontbinden) a Contract if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 60 days or more.  Customer shall pay all fees incurred for the Services that have already been performed by Firely prior to suspension and/or termination of a Contract due to a Force Majeure Event.
  11. Term and Termination 

    1. These Terms shall become effective upon: (i) acceptance by Customer; (ii) execution of a Contract by the Parties; or (iii) purchase of any Services by Customer, whichever occurs first.  
    2. These Terms shall continue in effect until: (i) Customer no longer has authorized access to use the Services; or (ii) a Contract is terminated earlier as provided under these Terms.  
    3. Customer may terminate (opzeggen) a Contract by written notice of termination to Firely. If notice is received by Firely before the end of the current month or year, which has already been paid by Customer, the termination will take effect immediately and Customer will not be charged for the next month or year. 
    4. Firely may suspend or terminate the use of the Simplifier Platform and restrict current or future use of the Simplifier Platform due to Customer and/or its Authorized User’s failure to meet its obligations under the Terms.  Such a suspension will result in the deactivation or deletion of the Account or the access to the Account. 
    5. Either Party may terminate (ontbinden) a Contract, effective on written notice via email to the other Party, if the other Party materially breaches a Contract or these Terms and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.  
    6. Either Party may terminate a Contract, effective immediately upon written notice (opzeggen) via email, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.  
    7. This Section 11.7 and Sections 1, 5.2, 5.3, 5.11, 7.3, 8, 9,10, 12, 13, and 14 of these Terms, and any other provision of these Terms or a Contract that would by its nature survive expiration or earlier termination of any Contract, shall continue in full force and effect.
  12. Confidentiality

    1. From time to time either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Terms, including to make required court filings. On the expiration or termination of these Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of date these Terms become effective and will expire two years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law. 
    2. Notwithstanding the confidentiality obligations in this Section 12, Firely may use and/or commercialize any ideas, input, or feedback received from Customer related to the Services for its own business purposes.
  13. Applicable Law and Dispute Resolution  

    US Customers (Sections 13.1-13.2)
    All other Customers (Sections 13.3-13.5)  
    1. Unless stated otherwise in writing, these Terms, any Contract, and any other agreement between the Parties shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods.  
    2. The Parties agree that any and all disputes, claims or controversies arising out of or relating to these Terms, any Contract, or any other agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration. Any dispute, controversy or claim arising out of or relating to these Terms, any Contract, or any other agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be referred to and finally determined by arbitration in accordance with the JAMS Comprehensive Arbitration Rules and Procedures. The seat of the arbitration will be New York, New York. The arbitration shall be administered for a single arbitrator. The language to be used in the arbitral proceeding will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. ANY CAUSE OF ACTION AGAINST FIRELY, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. 
    3. Unless stated otherwise in writing, these Terms, any Contract, and any other agreement between the Parties shall be governed by and construed in accordance with the laws of the Netherlands, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods.  
    4. The Parties agree that any and all disputes, claims or controversies arising out of or relating to these Terms, any Contract, or any other agreement shall first be submitted to the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering), (http://sgoa.eu/en/ with offices in Heemstede, the Netherlands) (SGOA) or its successor, for ICT Mediation. The other Party must actively participate in the ICT Mediation, which means attending one joint meeting between the mediator(s) and the Parties. Each Party may terminate the ICT Mediation procedure at any time following the joint meeting. Notwithstanding this Section, either Party may seek preliminary relief through arbitral proceedings or in a court of law, and may take conservatory measures (e.g., attachment) if necessary.  
    5. Any dispute, controversy or claim arising out of or relating to these Terms, any Contract, or any other agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, which is not resolved through mediation, will be referred to and finally determined by arbitration in accordance with the Arbitration Rules of SGOA, or its successor. The seat of the arbitration will be Heemstede, the Netherlands. The arbitration shall be administered for a single arbitrator. The language to be used in the arbitral proceeding will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. ANY CAUSE OF ACTION AGAINST FIRELY, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. Either Party may seek preliminary relief through arbitral proceedings or in a court of law, and may take conservatory measures (e.g., attachment) if necessary. 
  14. Miscellaneous  

    1. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by a Contract or these Terms or by law shall not constitute a waiver of that right, power or remedy.  If Firely waives a breach of any provision of these Terms or a Contract, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision. 
    2. Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction or before any arbitral tribunal, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 
    3. Assignment. Customer is not permitted to assign, delegate or otherwise transfer the any rights or obligations arising under these Terms without Firely’s prior written consent. Any such attempted assignment, delegation or transfer will be null and void.  Firely is permitted at its sole discretion to assign any rights or obligations arising under these Terms to any third party without giving prior notice. 
    4. No Beneficiaries. Any agreement between the Parties is for the sole benefit of the Parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the Parties thereto, any legal or equitable rights thereunder. 
    5. No Partnership. Nothing contained in any agreement between the Parties shall be read or construed so as to constitute the relationship of principal and agent or of partnership between the Parties. Neither of the Parties may pledge or purport to pledge the credit of the other Party or make or purport to make any representations, warranties, or undertakings for the other Party. 
    6. Injunctive Relief. Customer acknowledge that Firely shall suffer irreparable injury in case of breach of the obligations under Sections 5.7, 7.3, 7.5, 9.2, and 12.  Accordingly, in the event of such breach, Customer acknowledges that Firely will be entitled to injunctive relief in any arbitral tribunal or court of competent jurisdiction. Customer further submits to the personal jurisdiction of such courts for the purposes of any such action.