Terms of Service
These Singularly Terms of Service (“Agreement”) is entered into by and between Singularly, S.L. (“Singularly” or “we”) and Customer (as defined below) and governs Customer’s use of Singularly Services (the “Services”). The Agreement consists of the terms and conditions set forth below, any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms that reference this Agreement.
If you are entering into this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that You are authorized to bind that entity to this Agreement, in which case “Customer,” “you,” or “your” will refer to that entity (otherwise, such terms refer to you as an individual). If you do not have authority to bind Your entity or do not agree with any provision of this Agreement, you must not accept this Agreement and must not use the Singularly Services.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services through any online provisioning, registration or order process or (b) the effective date of the first Order.
1. USE OF SERVICE
1.1. Permitted Use. Singularly will make the Singularly Services available to Customer for the Subscription Term solely for use by Customer and its Authorized Users and solely for Customer’s internal business purposes, in accordance with the terms and conditions of this Agreement, the Order Form and the Documentation.
1.2. Affiliates. Customer Affiliates may purchase services from Singularly by executing an Order Form. This creates a separate agreement between the Affiliate and Singularly incorporating this Agreement with the Affiliate treated as “Customer”. Neither Customer nor any Customer Affiliate has any rights under each other’s agreement with Singularly, and breach or termination of any such agreement is not breach or termination under any other.
1.3. Authorized Users. Customer must obtain separate credentials (e.g., user IDs and passwords) for each Authorized User and may not permit the sharing of Authorized User credentials. Customer will at all times be responsible for and expressly assume the risks associated with all use of the Singularly Services under an Authorized User’s account (including for the payment of Fees related to such use), whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User, provided that such action was not taken by Singularly. This responsibility includes the security of each Authorized User’s credentials, and you will not share (and will instruct each Authorized User not to share) such credentials with any other person or entity, or otherwise permit any other person or entity to access or use the Singularly Services, except to the extent permitted in an Order Form.
1.4. Restrictions. Customer will not (and will not permit Authorized Users to):
a) sell, resell, license, sublicense, distribute, rent, lease, transfer or otherwise provide access to the Singularly Services to any third party except to the extent explicitly authorized in writing by Singularly;
b) use the Services to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible purchase of any Singularly product or service;
c) modify or create derivative works of the Services or copy any element of the Services;
d) copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of the Services, in whole or in part, or permit or authorize a third party to do so;
e) publish benchmarks or performance information about the Services;
f) use the Singularly Services other than in accordance with the Documentation;
g) during any free trial period granted by Singularly, use the Services for any purpose other than to evaluate whether to purchase the Services.
2. CUSTOMER DATA
2.1. Rights. As between the parties, Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Services as provided to Singularly. Subject to the terms of this Agreement, Customer hereby grants to Singularly and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the services to Customer, to prevent or address service or technical problems with the services, or as may be required by law.
2.2. Obligations. Customer’s use of the services and all Customer Data will comply with applicable laws and government regulations. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Singularly under this Agreement and that the Customer Data will not violate the rights of any third party.
2.3. Prohibited Uses. Customer agrees not to upload to the Service any HIPAA, GDPR or PCI Data. Singularly will have no liability under this Agreement for HIPAA, GDPR and PCI Data and Customer acknowledges that the Services are not intended to meet any legal obligations for these uses.
3. FEES AND PAYMENT
3.1. Fees. Fees are as described in each Order Form and, unless the Order provides otherwise, invoices are due within 30 days of the invoice date. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable and Fees are non-refundable. Singularly reserves the right to increase the rates specified in the Order for Renewal Terms. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less.
3.2. Taxes. Singularly’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including value-added, sales, use or withholding taxes in any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its Orders. If Singularly has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Singularly will invoice Customer and Customer will pay that amount unless Customer provides Singularly with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. TERM AND TERMINATION
4.1. Term. This Agreement starts on the Effective Date and continues until expiration or termination of the Subscription Term.
4.2. Renewal. Unless the Order provides otherwise, each Subscription Term will renew for successive 12-month periods unless either party gives the other party written notice of non-renewal at least 30 days before the current Subscription Term ends.
4.3. Termination. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) where permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Additionally, Singularly may terminate this Agreement for any reason or no reason upon notice to Customer, but in such case Customer will be entitled to a refund of any pre-paid unused fees for the terminated portion of the Subscription Term.
4.4. Effect of Termination. Upon expiration or termination of this Agreement or an Order, Customer’s access to the Services (including Customer Data in the Services) will cease. At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information, including Customer Data, which Singularly will delete within 60 days after Customer’s request. Customer Data and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.
4.5. Survival. The following Sections will survive any expiration or termination of this Agreement: 1.4 (Restrictions), 3 (Fees and Payment), 4 (Term and Termination), 5.3 (Warranty Disclaimer), 6 (Limitation of Liability), 7 (Indemnification), 8 (Intellectual Property), 9 (Confidentiality), 11 (General Terms), and 12 (Definitions).
4.6. Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Singularly reserves the right to suspend provision of services; (a) if Customer breaches Section 1 (Use of Service), Section 2.2 (Obligations) or Section 2.3 (Prohibited Uses); (b) if Customer fails to pay overdue Fees; (c) if Singularly reasonably determines suspension is necessary to avoid material harm to Singularly or its other customers or to preserve the security, availability or integrity of the Services.
5.1. Service Warranty. Singularly warrants that: (a) each Service will operate in substantial conformity with the applicable Documentation and (b) Technical Services and Deliverables will be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable Order Form. If Singularly is not able to correct any reported non-conformity with this warranty, either party may terminate the applicable Order Form, and Customer, as its sole remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Service or Technical Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by misuse of the Service or Deliverables, modifications to the Service or Deliverables by Customer or any third-party, or third-party hardware, software, or services used in connection with the Service. For Technical Services and Deliverables, this warranty will not apply unless Customer provides written notice of a claim within thirty (30) days after expiration of the applicable Statement of Work.
5.2. Mutual Warranty. Each party warrants that it has validly entered into this Agreement and has the legal power to do so.
5.3. Warranty Disclaimer. The Services and all related Singularly services and support are provided “AS IS”. Singularly and its suppliers make no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Singularly does not warrant that Customer’s use of the Services will be uninterrupted or error-free, that Singularly will review Customer Data for accuracy or that it will maintain Customer Data without loss. Singularly is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside Singularly’s control.
6. LIMITATIONS OF LIABILITY
6.1. Consecuential Damages. Except as to “Excluded Claims”, neither party shall be liable to the other party for any loss of use, lost or inaccurate data, interruption of business, lost profits, cost of delay or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility of in advance.
6.2. Liability Cap. Singularly’s total liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Singularly in the prior 12 months under this Agreement.
6.3. Excluded Claims. (a) Customer’s breach of Section 1.4 (Restrictions), Section 2.2 (Obligations) or Section 2.3 (Prohibited Uses), or (b) amounts payable to third parties under Customer’s obligations in Section 7 (Indemnification).
6.4. Nature of Claims. The parties agree that this Section 6 will apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
7.1. Indemnification by Customer. Customer will defend Singularly against any claim by a third party arising from or relating to any Customer Data or any Customer-offered product or service used in connection with the Service and will indemnify and hold harmless Singularly from and against any damages and costs awarded against Singularly or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
7.2. Procedures. Customer’s obligations in this Section 7 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim at the Customer’s sole cost and expense and (c) all necessary cooperation of Singularly at the Customer’s expense. Customer may not settle any claim without Singularly’s prior consent if settlement would require Singularly to admit fault or take or refrain from taking any action. Singularly may participate in a claim with its own counsel at its own expense.
8. INTELLECTUAL PROPERTY
8.1. Ownership. Singularly retains all Intellectual Property Rights and all other proprietary rights related to the Services. Customer will not delete or alter the copyright, trademark, or other proprietary rights notices or markings appearing within the Services as delivered to the Customer. Customer agrees that the Services are provided on a non-exclusive basis and that no transfer of ownership of Intellectual Property Rights will occur. Customer further acknowledges and agrees that portions of the Services, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets and other Intellectual Property Rights of Singularly and its licensors.
8.2. Feedback. Customer is under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Services (“Feedback”). If Customer chooses to offer Feedback to Singularly, you hereby grant Singularly a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Services or otherwise use any Feedback Singularly receives from you. You also irrevocably waive in favor of Singularly any moral rights which you may have in such Feedback pursuant to applicable copyright law. Singularly acknowledges that any Feedback is provided on an “as-is” basis with no warranties of any kind.
8.3. Publicity. Singularly may include Customer’s name, logo and trademarks on Singularly’s website and in Singularly’s marketing materials in connection with identifying Customer as a customer of Singularly. Upon Customer’s written request, Singularly will promptly remove any such marks from Singularly’s website and, to the extent commercially feasible, Singularly’s marketing materials
Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
10. MODIFICATIONS OF THE AGREEMENT
Singularly may modify this Agreement from time to time with notice to Customer. Modifications will take effect at Customer’s next Subscription Term or Order unless Singularly indicates an earlier effective date. If Singularly requires modifications with an earlier effective date and Customer objects, then at Singularly’s option, either (a) modifications become effective on Customer’s next Subscription Term or Order or (b) Customer may terminate this Agreement with notice to Singularly, in which case Singularly will provide Customer a refund of any pre-paid Services fees for the terminated portion of the current Subscription Term (as its exclusive remedy). To exercise this right, Customer must notify Singularly of its objections within 30 days after Singularly’s notice of the modified Agreement. Once the modified Agreement takes effect, Customer’s continued use of the Services constitutes its acceptance of the modifications.
11. GENERAL TERMS
11.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor; and Singularly may assign this Agreement in its entirety to any Affiliate. The parties hereby irrevocably agree in advance to provide their cooperation to such assignment and shall perform any formality to complete such assignment. Each party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
11.2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of Spain, without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the courts located in Barcelona, Spain, and both parties submit to the personal jurisdiction of those courts.
11.3. Notices. Any notice, consent or communication required under this Agreement will be in writing to the parties at the addresses set forth in the Order Form. Notice is deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered courier service or mail or (c) upon delivery if by email.
11.4. Entire agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Neither party will have a claim for innocent or negligent misrepresentation based on any statement in this Agreement. Singularly may change and update any Service (in which case Singularly may update the applicable Documentation accordingly), subject to the warranty in Section 5.1 (Service Warranty).
11.5. Amendments and Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement, except as expressly set forth herein. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement, together with any terms referred to in it, constitutes the complete agreement between the parties. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, notwithstanding any language to the contrary therein, whether signed before or after this Agreement.
11.6. Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, natural disaster or any law or any action taken by a government or public authority.
11.7. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.
11.8. Export. Customer agrees to comply with all export and import laws and regulations of the E.U., the U.S. and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any E.U. or U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a E.U. or U.S. government embargo or that has been designated by the E.U. or U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any third parties to) access or use any Service in violation of any E.U. or U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to any Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
“Affiliate” means an entity that directly or indirectly owns or controls, is owned or controlled by or is under common ownership or control with a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Authorized User” means any employee or contractor of Customer or its Affiliates that Customer allows to use the Services on its behalf.
“Customer Data” means any data or data files of any type that are uploaded by or on behalf of Customer to the Service for storage in a data repository.
“Documentation” means Singularly’s standard technical documentation for the Services.
“Fees” means the fees payable by Customer for the applicable Service, as set forth in an Order Form.
“GDPR” means European Union Regulation 2016/679.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“Order Form” means the Singularly ordering document executed by both Customer and Singularly which specifies the services being provided by Singularly and that is governed by this Agreement.
“PCI” means the Payment Card Industry Data Security Standards (PCI DSS).
“Services” means the Singularly proprietary software-as-a-service offering generally available and ordered by Customer as set forth in an Order Form.
“Subscription Term” means the term for Customer’s use of the Services as identified in an Order Form.