This Semmel Hand Hygiene Terms of Service (this “Agreement”) is entered into by Semmel Health Sdn Bhd (“Semmel”) and the entity or person agreeing to it (“Customer or You”) and govern Your access to and use of the Services (the “Service”). THIS AGREEMENT IS EFFECTIVE WHEN CUSTOMER CLICKS THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICE. If You are an existing Customer who is on a free or trial account, Your continued use of the Services will constitute the acceptance of the Agreement. If You do not agree to the terms for the Service, You should discontinue Your use of the Services.
IF YOU ARE ACCEPTING OR CONTINUING USE OF SERVICES ON BEHALF OF CUSTOMER, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT AND YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND YOU AGREE, ON BEHALF OF CUSTOMER, TO THIS AGREEMENT.
In consideration of the foregoing, the parties agree as follows:
Customer must have an Account to use the Services. By creating an Account you automatically start your Free Plan. Your Free Plan comes with full premium features for the first 60 days. If you have not switched to a Paid Plan by the end of the first 60 days, your premium features will be deactivated. You may choose to switch from the Free Plan to any Paid Plan at any time even after the first 60 days. Once you choose to do so, Semmel will activate the premium features associated with the Paid Plan that you have selected and start to apply the respective subscription fees in accordance with the applicable Paid Plan.
- Fees and Service.
Subject to Section 15, the applicable Services under the Free Plan will be made available to you free of charge until You decide to upgrade to a paid subscription. Free and Paid plans are published on Semmel website.
Fees and Trials. You must pay all fees for the Services you purchase, except for Services that we expressly offer free of charge under the Free Plan. If you sign up for a free trial of a paid Service, we will charge You automatically on the first day after the free trial is over, unless You cancel or downgrade to a charge-free service before the end of the free-trial period.
Semmel reserves the right to change the fees or payment policies. Changes are effective upon Customer acceptance of those changes which will be posted at www.semmelhealth.com/pricing/. Unless otherwise stated in your invoice, all fees are quoted in United States Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys’ fees) incurred by Semmel will be included in the amount owed.
Semmel may change its fees for the Service from time to time including removing features and functions under the Free plan.
All payments for the Paid Plan are due in advance by the first day of the billing period.
- Member Account, Password, and Security.
To register for the Service, You must complete the registration process by providing Semmel with current, complete and accurate information as prompted by the registration form, including Your company email address and password. You will protect Your passwords and take full responsibility for Your own, and other users’, use of Your account. You are solely responsible for any and all activities that occur under Your Account. You will notify Semmel immediately upon learning of any unauthorized use of Your Account or any other breach of security. Semmel’s support staff may, from time to time, log in to the Service under Your or other users’ password in order to maintain or improve service, including to provide assistance with technical issues.
- Nonexclusive License.*
Subject to the terms and conditions of this Agreement, (a) Semmel grants Customer a limited, revocable, non-exclusive, non-sublicensable license to use the Software solely as necessary for You to use the Service. You will not (and You will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; or (vi) use data in the Service for purposes other than generating, viewing, and downloading Reports. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, Service and Reports.
Semmel may immediately suspend all or part of Customer’s use of the Services (including use of the underlying Account) if (a) Semmel reasonably believes Customer’s or any End User’s use of the Services could adversely impact the Services, other customers’ or their end users’ use of the Services, or the Semmel network or servers used to provide the Services; (b) there is suspected unauthorized third-party access to the Services; (c) Semmel reasonably believes that immediate Suspension is required to comply with any applicable law; or (d) Customer is in breach of Clause 12. Semmel will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer’s request, Semmel will, unless prohibited by applicable law, notify Customer of the basis for the Suspension as soon as is reasonably possible.
- Confidentiality and Beta Features.*
Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Certain Service features are identified as “Alpha,” “Beta,” “Experiment,” or as otherwise unsupported or confidential (collectively, “Beta Features”). You may not disclose any information from Beta Features or the terms or existence of any non-public Beta Features. Semmel will have no liability arising out of or related to any Beta Features.
- Information Rights and Publicity.*
Customer is responsible for any consents and notices required to permit (a) Customer’s use and receipt of the Services, and (b) Semmel’s accessing, storing, and processing of data provided by Customer (including Customer Data) under the Agreement.
To the extent permitted by applicable law, Customer will indemnify, hold harmless and defend Semmel and its wholly-owned subsidiaries, at Customer expense, from any and all third-party claims, actions, proceedings, and suits brought against Semmel or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by Semmel or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, (iv) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to any Third Party; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (vi) violations of Your obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Service, the Software or Reports. Semmel will provide You with written notice of any claim, suit or action from which You must indemnify Semmel. You will cooperate as fully as reasonably required in the defense of any claim. Semmel reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer.
- DISCLAIMER OF WARRANTIES.*
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, SEMMEL MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICES AND ANY REPRESENTATIONS ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE SERVICES.
- LIMITATION OF LIABILITY.*
TO THE EXTENT PERMITTED BY APPLICABLE LAW, SEMMEL WILL NOT BE LIABLE FOR YOUR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF SEMMEL OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT IS LIMITED TO THE FEES CUSTOMER PAID DURING THE 12 MONTH PERIOD BEFORE THE EVENT GIVING RISE TO LIABILITY.
- Proprietary Rights Notice.*
The Service, which includes the Software and all Intellectual Property Rights therein are, and will remain, the property of Semmel. All rights in and to the Software not expressly granted to You in this Agreement are reserved and retained by Semmel and its licensors without restriction, including, Semmel’s right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software, Documentation or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Semmel; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Semmel other than in the name of Semmel; (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service or Software; or (h) seek, in a proceeding filed during the term of this Agreement or for two years after such term, an injunction of any portion of the Service based on patent infringement.
- Term, Renewal and Termination.*
Term for the Free Plan is monthly. At the end of each month, the Term will automatically renew for another month, unless canceled by Customer. Customer may stop using the Services at any time. Semmel may also terminate this agreement for its convenience at any time on 30 day prior written notice.
With a Paid Plan, at the end of each Term, the Services will automatically renew consistent with Customer’s elections in the Order Form and Semmel will automatically bill Customer on renewal unless Customer cancels or downgrades the Services to a Free Plan before the expiry of the Order Term.
Subject to Customer fulfilling all its financial commitments under an Order Form or otherwise under this Agreement (including payment of all Fees for the Order Term), Customer under any Paid Plans may also terminate this Agreement for its convenience at any time by serving a prior written notice of at least 90 days before the end of the then-current Order Term, and this notice of non-renewal will take effect at the end of the then-current Order Term. If Semmel does not want the Services to renew, then it must notify Customer to this effect at least 90 days before the end of the then-current Order Term.
Termination for Breach. To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
Termination Due to Applicable Law; Violation of Laws. Semmel may terminate this Agreement and/or any applicable Order Form immediately on written notice if Semmel reasonably believes that (a) continued provision of any Service used by Customer would violate applicable law(s) or (b) Customer has violated or caused Semmel to violate any Anti-Bribery Laws.
Effect of Termination or Non-Renewal. If the Agreement is terminated or not renewed, then (a) all rights and access to the Services will cease (including access to Customer Data), unless otherwise described in this Agreement, and (b) all Fees owed by Customer to Semmel are immediately due upon Customer’s receipt of the final electronic bill or as stated in the final invoice.
No Refunds. Unless expressly stated otherwise in this Agreement, termination or non renewal under any section of this Agreement will not oblige Semmel to refund any Fees and any unutilised portion of the fees and any outstanding balance for Service rendered through the date of termination will be immediately due and payable in full. You are advised to download Your historical Report data within 7 days from date of termination, after which this data will no longer be available to You.
- Modifications to Services, Terms of Service and Other Policies.
Semmel may make commercially reasonable changes to the Services from time to time, such as by changing, adding or removing features at any time, for any reason. We may or may not provide notice of these changes to you. Semmel will inform Customer if Semmel makes a material change to the Services that has a material impact on Customer’s use of the Services and if Customer has subscribed with Semmel to be informed about such change.
Semmel may modify these terms or any additional terms that apply to the Service. Semmel will post notice of modifications to these terms at https://www.semmelhealth.com/terms/. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted at which time Customer’s continued use of the Services will constitute its acceptance of the changes. If You do not agree to the modified terms for the Service, You should discontinue Your use of the Services.
We will not be liable to you or any third party for the modification, price change, suspension or discontinuance of any of our Services.
- Miscellaneous, Applicable Law and Venue.*
Semmel will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between You and Semmel concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of Malaysia without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Malaysia law, rules, and regulations, Malaysia law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Malaysia. Any notices to Semmel must be sent to: Semmel Health Sdn Bhd, 37-2 Jalan PJU 5/9, Kota Damansara 47810 Petaling Jaya, Selangor, Malaysia via first class or air mail or overnight courier, and are deemed given upon receipt and a soft copy emailed to email@example.com.
A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights in this Agreement without Semmel’s prior written consent, and any such attempt is void. The relationship between Semmel and Customer is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 4, 6, 7, 8, 9, 10, 11, 12, 13, 15 and 16.
“Account” means Customer’s Semmel account credentials and correlating access to the Services under this Agreement.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and reduced to writing and marked “confidential”. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
“Customer Data” means the data collected, submitted, sent or received, processed or stored using the Service by Customer or its End Users.
“Documentation” means any accompanying documentation made available to You by Semmel for use with the Software, including any documentation available online.
“End Users” means the individuals who are permitted by Customer to use the Services and managed by an Administrator. For clarity, End Users may include employees of Customer, Affiliates and other third parties.
“End User Account” means a Semmel-hosted account established by Customer through the Services in order for an End User to use the Services.
“Fees” means the then-current applicable prices for the Services described at https://www.semmelhealth.com/pricing.html (incorporated into the Agreement by this reference), unless otherwise agreed in an Order Form. Prices do not include Taxes.
“Free Plan” means features that are included in the free version of Semmel Hand Hygiene as specified in the then-current Price Plan published at www.semmelhealth.com/pricing.
“Free Trial” means trial of premium Services for an agreed period of time at no charge.
“Order Form” means an order placed by Customer via a Semmel website or through a sales representative, specifying the Services Semmel will provide to Customer under the Agreement.
“Order Term” means the period of time starting on the Services Start Date or the renewal date (as applicable) and continuing for the period indicated on the Order Form unless terminated in accordance with this Agreement.
“Premium Services” means any services that fall under Paid Plans as listed in the Price Plan.
“Services” means our web applications and mobile applications related to Semmel Hand Hygiene, and any services that you access or purchase through our websites or mobile applications, but do not include Third-Party Services that you access or use in connection with our services.”Software” means web applications and mobile applications owned and developed by Semmel.