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Terms and Conditions for SIMVANA Software

1 DEFINITIONS. AS USED THROUGHOUT THESE TERMS AND CONDITIONS, THE FOLLOWING TERMS SHALL HAVE THE MEANINGS AS SET FORTH BELOW:  

a. "Seller" means, Asteroidea LLC.

b. "Buyer" means the person, firm, corporation, or academic institution that is purchasing SIMVANA. 

c. "Software" shall mean computer programs provided to Buyer as a licensee, and any upgrades, updates, bug fixes or modified versions thereto (collectively “Upgrades”).  

d. "Software Documentation" means written information (whether contained in user or technical manuals, training manuals, specifications or otherwise) pertaining to the Software and made available by Seller in any manner (including USB Drive, Email, or on-line). 

e. “Hardware” shall mean any hardware required to be used to host the SIMVANA application and connect to the cloud via high-speed internet connection.   

f.  “Cloud Components” Means the hardware and software components, such as servers, storage, networking, virtualization software, services and management tools, that support the computing requirements of a cloud computer model.  

g.  “User License” means an agreement between the named individuals/email addresses who have been authorized to access and use SIMVANA in accordance with the terms of this agreement. 

h.  “Buyer Data” means data collected in electronic form input or collected through SIMVANA, including without limitation data input by organizations and data provided by organizations. 

i.  “Professional Services” means such services as are set forth in an Acceptance Of Contract. 

2 ACCEPTANCE OF CONTRACT. Seller’s acceptance of any purchase order issued by Buyer shall be expressly limited to the terms and conditions set forth herein. Any additional or different terms set forth or referenced in Buyer’s purchase order are hereby objected to by Seller and shall not be deemed a part of any resulting order. These terms and conditions represent the entire agreement between the Buyer and Seller pertaining to the subject matter of this order and shall supersede all prior oral and written agreements, proposals, communications, and documents.  The Effective Date of these Terms and Conditions shall be the earlier of (a) initial access to or use of the Software by the Buyer or (b) the effective date of the first Order referencing this Agreement.  

3 APPLICABLE LAW. The validity, performance, and construction of the contract arising from the acceptance of this offer by commercial entities shall be governed as follows:  

a. For commercial entities, the laws of the State of Alabama without regard to its choice of law rules.  

b. For US state and local governments and/or higher education schools governed by the applicable state law, contracts shall be governed by the laws of the state in which they are located without reference to conflict of laws principles. 

c. For the US government, contracts shall be governed by US Federal Laws.  

d. U.S. Federal Laws shall govern all matters of intellectual property.  

e. Contracts will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  

4 ASSIGNMENT. Buyer shall not assign any rights or obligations hereunder without the prior express written consent of the Seller, except to a third party pursuant to a merger, sale of all or substantially all assets, or other corporate reorganization wherein the third party has agreed to comply with the terms and conditions of this agreement.  

5 AUDIT. Notwithstanding any language or provisions in this contract to the contrary, Buyer shall not be allowed the right to audit or examine Seller’s books and records unless required by applicable law.  

6 CHANGE REQUESTS. No Seller change requests, extras or other work shall be authorized unless agreed to by both parties as evidenced by a written amendment to this order signed by duly authorized representatives of Buyer and Seller.

7 TITLE AND RISK OF LOSS. Risk of loss shall pass to Buyer upon delivery of the Software, Hardware, and/or Software Documentation. It is hereby acknowledged and agreed that Buyer shall not obtain title to the Software.  Shipping terms shall be FOB Origin for all items. 

8 PAYMENT. Payment will be deemed to have been made when received at Seller’s facilities or when electronically deposited at Seller’s designated financial institution.  

9 TAXES. As may be applicable by law, any and all taxes, assessments, or duties, which may be imposed  

upon the sale covered hereby, shall be the sole responsibility of and shall be paid by Buyer.  

10 INDEMNITY. Buyer shall at all times indemnify and hold harmless the Seller and Seller’s successors, assigns, shareholders, partners, directors, officers, agents, affiliates, subsidiaries, parent company, and employees from and against any and all liabilities, damages, penalties, settlements, judgements, orders, losses, costs, charges, attorney’s fees, and all other expenses and shall, further, defend the Indemnified Parties from any and all claims, actions, suits, prosecutions, and all other legal and/or equitable proceedings resulting from or relating to (whether directly or indirectly) any allegation (whether founded or unfounded and regardless of the nature or character thereof) regarding: (i) any negligent, willful, reckless, or wrongful act or omission of the Buyer, its employees, representatives, contractors, or agents; (ii) any breach of agreement, or inaccuracy in, any representation made by the Buyer herein including, without limitation, claims for personal injury, death or damage to property or other demands; (iii) any failure to perform by the Buyer, or any defect in said party’s performance of, its obligations and duties pursuant to this Agreement; (iv) use of the Software, modifications, loss/damage; or (v) any alleged violation by the Buyer of any law, statute, regulation or ordinance. 

11 LICENSE TERM/RENEWAL.  The licensing term for SIMVANA is (12) months and begins upon delivery of the hardware/software. At the end of the license term, this agreement will automatically renew for an additional (12) months period unless Seller has provided Buyer with (60) days written notice prior to the end day of the current license term of Seller’s intent not to renew.  All terms and conditions as set forth herein shall remain in full effect during any renewal period.

12 ANNUAL SOFTWARE LICENSE FEES.  Payment shall be due prior to the beginning of the SIMVANA License Term/Renewal.   

13 HARDWARE.  Responsibility of repair and/or replacement of Hardware or Hardware components lies solely with the Buyer.  Seller shall not be held responsible for any repair or replacement of Hardware or Hardware components. 

14 EMAIL/PHONE SUPPORT.  Initial general installation support is available for the first (90) days of the initial license term and general “end-user log in” support is provided for approved use licenses through the license term. All applicable inquiries shall be submitted via to the help desk Email/Phone support included as part of this agreement. All help desk support shall be provided during normal business hours of 8am – 5pm Central Time unless an additional service level agreement has been agreed to by the Parties.   

15 USE OF SOFTWARE.  Buyer agrees to use the Software only for the intended purpose.  Buyer shall not attempt to remove, alter, reverse engineer, decompile or disassemble the Software.  The Software shall only be used by licensed end users provided in the attached Quote and shall be non-transferable.  Seller reserves the right to audit Seller and/or end-user at any time without notice.

16 OPEN-SOURCE SOFTWARE. Certain third-party software included in the Software are "free" or "open source" software.  Such Open-Source Software is distributed WITHOUT ANY WARRANTY, to include but not limited to, any implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. Seller is not obligated to provide any warranty, maintenance, technical or other support for the Open -Source Software or its use on the Software. 

17 SELLER RIGHTS.  Seller shall have the right in its sole discretion to withhold delivery of hardware/software.  If Seller determines the hardware/software will not be delivered, then Buyer shall have no financial obligation to Seller and any fees previously paid by Seller shall be refunded by Buyer for the current license period.   

18 INTELLECTUAL PROPERTY.  The Software is licensed and not sold, and Seller reserves all rights to the Software not expressly granted by Seller whether by implication, estoppel or otherwise.  All associated Intellectual Property related to the Software remains the property of the Seller. 

19 TERMINATION.  Seller shall have the authority to terminate this Agreement for cause following any breach of the Agreement.  Seller shall be paid for all services delivered prior to the date of termination. 

20 CHANGES.  Any changes to these terms and conditions shall be mutually agreed to by both Parties. 

21 NOTICES.  Notices are required to be given in writing and shall either be hand delivered; sent by mail with return receipt requested; or transmitted via facsimile or email. Notices sent to Seller shall be addressed to the authorized representative identified on the specific quote.  

22 FORCE MAJEURE.  Neither party shall be considered in default of its obligations under this Agreement to the extent that failure to perform any such obligation arises from causes beyond their control and without the fault or negligence of the affected party. 

23 WAIVERS.  The waiver by either Party of a portion of a provision herein shall not be taken or held by the other Party to be a waiver of the provision itself unless such a waiver has been expressed in writing. 

24 WARRANTY.  Information delivered is provided as is and without any representation, guarantee, or warranty of any kind. 

25 HEADINGS.  The headings and captions included in this Agreement are intended for convenience only and shall not be used to construe, explain, or modify this Agreement in any manner whatsoever. 

26 EXPORT.  Buyer agrees to comply with all applicable U.S. or non-U.S. export control laws and regulations, including obtaining all authorizations, including agreements, licenses, exemptions, or other approvals, and customs clearances required for its role and actions hereunder. Any associated costs shall be the sole responsibility of and shall be paid by Buyer.  

27 INJUNCTIVE RELIEF.  Buyer agrees that Seller’s Proprietary Information is valuable and unique, and that the loss resulting from unauthorized disclosure thereof will cause irreparable injury to Seller, which cannot be adequately compensated in money damages.  The Buyer, therefore, expressly agrees that the Seller shall be entitled to seek injunctive and/or other equitable relief, in addition to any other remedies available to Seller.  A failure or delay by the Seller in exercising any right, privilege or remedy shall not be considered a waiver or modify the terms herein. 

28 DISPUTE RESOLUTION.  Any dispute between the Parties which is not disposed of by mutual agreement within a period of (30) days after one Party has provided written notice of the dispute to the other shall be subject to Executive Level review by Buyer and Seller. If this review process is not successful within a reasonable period of time. The Buyer shall at its discretion submit to binding arbitration administered and conducted by the American Arbitration Association.  The dispute shall be arbitrated before three arbitrators, one to be selected by each party and the third to be selected by the other two selected arbitrators.  Any such arbitration shall be held in Madison County, Alabama. The parties agree that any remedy or relief granted shall be limited and therefore under no circumstances may the arbitrators make any award that includes any amount representing loss of profits, loss of business or any other incidental, special, consequential, or punitive damages.  The decision of the arbitrators shall be final and conclusive upon the Parties.  The arbitrators shall apply the substantive and procedural law of the State of Alabama, without regard to any “choice of law” principles that would have the effect of applying any law other than that of Alabama.  Judgment upon any award rendered by the arbitrators may be entered in any court of competent jurisdiction within the State of Alabama. 

If Seller is a Government entity, Federal, State, or Local municipality, the Parties recognize that the applicable law as set forth in section 3 applies as prevailing law.

29 PROPRIETARY INFORMATION.  Seller may provide proprietary technical and other information as is reasonably required to perform its obligations hereunder. Buyer agrees to keep in confidence and prevent the disclosure to any person(s) outside their respective organizations, or any person(s) within their organizations not having a need to know, all information received which is provided, however, that Buyer shall not be liable for disclosure or use of such data if the same is: 

(1) Already known to the Buyer, or 

(2) Becomes publicly known through no wrongful act of the Buyer, or 

(3) Is rightfully received from a third party having the right to disclose the data and without similar restrictions as to disclosure and use, or 

(4) Is independently developed by the Buyer, or 

(5) Is approved for release or use by written authorization of the Seller. 

30 SCOPE.  The scope of this Agreement governs any purchase, support, maintenance, and any additional services provided by the Seller. 

31 SURVIVABILITY.   All provisions of this Agreement (including without limitation those pertaining to proprietary information, intellectual property ownership, and limitations of liability) that would reasonably be expected to survive expiration or early termination of this Agreement will do so.  

32 BUYER DATA.  Buyer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using SIMVANA, Buyer assumes such risks.  Seller offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties. 

33 PROFESSIONAL SERVICES.  The Seller will provide the Professional Services when contracted by the Buyer, and the Buyer shall provide such assistance and cooperation as are necessary to facilitate the Professional Services in accordance with the terms of this agreement. 

34 USER LICENSEE.  A user licensee shall consist of any approved email address that has been authorized to use SIMVANA in a named user non-concurrent session in accordance with the terms of this agreement. 

35 GENERAL. Seller may utilize Buyer’s name and logo to identify Buyer as a customer of Seller. It is recognized that Seller’s use of the name and logo does not create any ownership right therein and all rights not granted to Seller herein are reserved by Buyer.

 

Buyer agrees that Seller may collect and use data and related information, including but not limited to information about your Hardware, System, and use under this agreement to facilitate software improvements, updates, product support, and other services.

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