Terms & conditions

General

Chapter 1. General provisions
1. Definitions
The terms in these Simendo General Terms and Conditions that have been identified by a capital letter shall have the meaning identified below.

“Agreement”: the agreement between Simendo and the HCI for the provision of the Services by Simendo to the HCI.

“Applicable Data Protection Legislation”: EU Regulation 2016/679 (General Data Protection Regulation), the Dutch GDPR implementation act (Invoeringswet AVG) and guidance and policies provided by the Dutch DPA (Autoriteit Persoonsgegevens).

“Documentation”: the product information leaflets, Training Device specifications, manuals and other written documentation provided by Simendo to the HCI in relation to the Services.

“Effective Date”: the date described in article 3.2 of these GTC.

“Fees”: the fees charged by Simendo to the HCI for the provision of the Services as identified in the Offer or otherwise stated by Simendo or its authorized agent.

“GTC”: these Simendo General Terms and Conditions.

“Health Care Institution” or “HCI”: the hospital or other institution providing surgical care which has entered into an Agreement or has received an Offer to do so.

“Offer”: a written offer by Simendo or its authorized agent for the provision of the Services to the HCI.

“Online Services”: the online Services provided at http://www.mysimendo.com.

“Open Source”: any software licensed under any form of open-source license meeting the Open Source Initiative’s Open Source Definition as provided here: https://opensource.org/osd.

“Services”: the laparoscopic training services provided by Simendo consisting of a combination of the in-house use of one or more Training Devices combined with the Online Services and associated supporting Services all as identified in the Offer and described in more detail in the Documentation.

“Simendo”: Simendo B.V. Vijverhofstraat 106, 3032 SP, Rotterdam, CoC 50379674.

“Software”: the operating software and application that has been pre-installed on the Training Device by Simendo.

“End-Users”: trainee surgeons and instructors using the Services.

“Training Device(s)”: the surgical training devices produced and marketed by Simendo as described on the Website including the Documentation, associated note book, hardware case and the Software.

“Website”: the website of Simendo at https://www.simendo.eu.

2. Applicability of Simendo Terms and Conditions
2.1 These GTC apply to the Offer and [potential] subsequent agreement pursuant to which Simendo delivers the Services to the HCI. An Offer can be provided directly by Simendo or by its authorized agent.

2.2 Departures from and additions to these GTC shall only be valid if they are agreed between the parties in writing.

2.3 The applicability of the HCI’s procurement terms and conditions to an Agreement is specifically excluded. If this exclusion cannot be enforced by Simendo, the HCI accepts that these GTC shall supplement its procurement terms and conditions.

2.4 If any provision of these GTC is null and void or is voided, the other provisions of these GTC shall remain fully in effect. Simendo and the HCI shall in this case consult each other for the purpose of agreeing new provisions to replace the null and void or voided provisions.

3. Offer and Agreement
3.1 Each Offer can be revoked by Simendo up until thirty [30] days after the date that is identified on the Offer.

3.2 The Agreement shall become effective on the date that the following sequence of events has been completed: (i) Simendo or its agent issues written offer to the HCI, (ii) the HCI issues a written purchase order or in response, (iii) Simendo confirms its acceptance of the purchase order to the HCI.

3.3 The Agreement is composed of the Offer, the SLA, these GTC and any data processing agreement between Simendo and the HCI when executed.

4. Fees, costs and payment
4.1 All Fees and costs are exclusive of turnover tax (VAT) and other levies imposed by the government.

4.2 All Fees and costs are in euros (EUR) and the HCI must make all payments in euros unless a specific agreement has been made for payment in another currency. Fees shall be payable by the HCI per year in advance unless stated otherwise in the Offer.

4.3 The HCI shall pay each invoice within thirty [30] days of the date of receipt. If the HCI fails to pay amounts due or fails to do so on time, the HCI shall immediately owe statutory interest to Simendo for commercial Agreements on the outstanding amount without a demand for payment or a notice of default being required. If the HCI fails to pay the amount due after a demand for payment or a notice of default has been issued, Simendo shall be entitled to refer the debt for collection, in which case the HCI must pay all actual and reasonable judicial and extrajudicial costs.

4.4 All costs payable by the HCI for Services provided pursuant to the SLA shall be charged Simendo to the HCI on the basis of its then current rates.

4.5 The HCI may not suspend any payment obligations and may also not set off any amounts owed.

5. Term of the Agreement
5.1 The term of the Agreement shall be three [3] years from the Effective Date.

5.2 If the HCI wishes to extend the term of the Agreement, it will need to indicate this in writing to Simendo no later than three [3] months prior to the expiration of the term. Simendo will subsequently provide the HCI with an Offer for the extend term.

6. Confidentiality
6.1 The HCI and Simendo must ensure that all information received from the other party that the receiving party knows or should reasonably know is confidential is kept secret. This duty of confidentiality shall not apply to Simendo if and insofar as Simendo is required to provide the information concerned to a third party in accordance with a court decision or a statutory requirement, or if and insofar as doing so is necessary for the proper performance of the Agreement by Simendo. The party that receives the confidential information may only use it for the purpose for which it was provided. Information shall in any case be deemed to be confidential if it has been qualified as such by one of the parties.

6.2 The HCI acknowledges that the Software is always confidential in nature and that it contains trade secrets of Simendo and its licensors.

7. Privacy and Data Processing
7.1 Simeno shall process personal data relating to End-Users in accordance with Applicable Data Protection Laws and the privacy statement provided on http://www.mysimendo.com.

7.2 The HCI indemnifies Simendo against claims of End-Users whose personal data is processed by means of the Services, unless the HCI proves that the facts on which a claim is based are attributable to Simendo.

8. Security
8.1 The access or identification codes provided by Simendo to the HCI are confidential and must be treated as such by the HCI, and may only be made known to authorized End-Users.

8.2 All use of access and identification codes activated in the Online Services and issued to the HCI shall be attributable to the HCI.

8.3 The HCI must adequately secure its systems and infrastructure and have active antivirus software protection at all times.

8.4 The HCI shall not connect the Training Device to its internal computer network. Internet connectivity should be provided to the Training Device by Wifi with direct outside Internet connectivity.

9. Intellectual Property
9.1 All intellectual property rights to the Software, Services and Documentation are held exclusively by Simendo or its licensors. The HCI shall have the rights of use expressly granted in the Offer and/or these GTC. A right accorded to the HCI is non-exclusive and may not be transferred, pledged or sublicensed.

9.2 The HCI may not remove or change any indication concerning the confidential nature of or concerning the copyrights, brands, trade names or any other intellectual property right pertaining to the Software, Services or Documentation, or have any such indication removed or changed.

9.3 Simendo indemnifies the HCI against any claim of a third party based on the allegation that the Software, Services or Documentation infringe an intellectual property right of that third party, subject to the condition that the HCI immediately informs Simendo in writing about the existence and content of the claim and leaves the settlement of the claim, including any arrangements made in this regard, entirely to Simendo. The HCI shall provide the powers of attorney and information required to Simendo and assist Simendo to defend itself against such claims. If it is irrevocably established in court that Software, Services or Documentation is or are infringing any intellectual property right held by a third party, or if, in the opinion of Simendo, there is a good chance that such an infringement is occurring, Simendo shall if possible ensure that the HCI can continue to use, or use functional equivalents of, the Software, Services or Documentation. Any other or further obligation to indemnify on the part of Simendo due to infringement of a third party’s intellectual property right is excluded.

10. Obligations to provide information
10.1 To enable proper performance of the Agreement by Simendo, the HCI shall always provide all information reasonably required by Simendo to Simendo in a timely manner.

10.2 The HCI guarantees that all information that it provides to Simendo in the context of the Agreement shall be complete and correct.

11. Terms
11.1 Simendo shall make reasonable efforts to comply to the greatest extent possible with the terms and delivery periods and/or dates and delivery dates, whether or not these are firm deadlines and/or dates, that it has specified or that have been agreed between the parties. The interim dates and delivery dates specified by Simendo or agreed between the parties shall always apply as target dates, shall not bind Simendo and shall always be indicative.

11.2 If a term is likely to be exceeded, Simendo and HCI shall consult with each other about the consequences of the term being exceeded in relation to further planning.

11.3 In all cases, therefore also if the parties have agreed firm deadlines and delivery periods or dates and delivery dates, Simendo shall only be in default as a result of a period of time being exceeded after the HCI has declared Simendo to be in default in writing and a reasonable term that the HCI granted to Simendo to remedy the breach has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give Simendo the opportunity to respond adequately.

12. Termination and cancellation of the Agreement
12.1 Each party shall only be authorized to rescind the Agreement due to an attributable failure in the performance of the Agreement if the other party, in all cases after a written notice of default that is as detailed as possible and that grants a reasonable term to remedy the breach has been issued, is culpably failing to fulfil essential obligations under the Agreement. The HCI’s payment obligations and all obligations of the HCI or a third party engaged by the HCI to cooperate and/or provide information apply in all cases as essential obligations under the Agreement.

12.2 If, at the time of rescission, the HCI has already received Services, these Services and the associated payment obligations shall not be undone unless the HCI proves that Simendo is in default with respect to the essential part of such Services. With due regard to the stipulation of the preceding sentence, amounts invoiced by Simendo prior to rescission in connection with what it already properly performed or delivered in the performance of the Agreement shall remain payable in full and shall become immediately due and payable at the time of termination.

12.3 The HCI may not terminate an Agreement of engagement that has been entered into for a definite period of time.

12.4 Either of the parties may terminate the Agreement in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a moratorium, whether or not provisional, a petition for bankruptcy is filed for the other party or the company of the other party is liquidated or dissolved other than for restructuring or a merger of companies. Simendo may also terminate the Agreement, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of the HCI’s. Simendo is never obliged to repay any amount in money already received or pay any amount in compensation due to termination as referred to in this paragraph. If the HCI goes irrevocably bankrupt, its right to use the Training Device and the like made available to it shall end, as shall its right to access and/or use the Services, without termination by Simendo being required.

13. Liability and indemnification
13.1 Simendo’s total liability due to an attributable failure in the performance of the Agreement or on any legal basis whatsoever, expressly including each and every failure to fulfil a warranty obligation agreed with the HCI, shall be limited to compensation for direct loss up to a maximum of the Fees for the term of the Agreement (excluding VAT). Simendo’s total liability for direct loss, on any legal basis whatsoever, shall never amount to more than EUR 500.000 (five hundred thousand euros), however.

13.2 Simendo’s total liability for loss due to death or bodily injury or as a result of material damage to items shall never amount to more than EUR 1.250.000 (one million two hundred fifty thousand euros).

13.3 Simendo’s liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of the HCI’s HCIs, loss arising from the use of items, materials or software of third parties prescribed by the HCI to Simendo is excluded. Simendo’s liability for corruption, destruction or loss of data or documents is likewise excluded.

13.4 The exclusions and limitations of Simendo’s liability described articles 13.1 up to and including 13.3 are entirely without prejudice to the other exclusions and limitations of Simendo’s liability described in these general terms and conditions.

13.5 The exclusions and limitations referred to in articles 13.1 up to and including 13.4 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of Simendo’s management.

13.6 Unless performance by Simendo is permanently impossible, Simendo shall only be liable due to an attributable failure in the performance of an Agreement if the HCI declares Simendo to be in default in writing without delay and grants Simendo a reasonable term to remedy the breach, and Simendo culpably fails to fulfil its obligations also after this term has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give Simendo the opportunity to respond adequately.

13.7 For there to be any right to compensation, the HCI must always report the loss to Simendo in writing as soon as possible after the loss has occurred. Each claim for compensation against Simendo shall be barred by the mere expiry of a period of 24 months following the inception of the claim unless the HCI has instituted a legal action for damages prior to the expiry of this period.

13.8 The HCI shall indemnify and hold Simendo harmless for any claims made by End-Users whicj are trainee surgeons, that are directly related to their use of the Services.

14. Force majeure
14.1 None of the parties shall be obliged to fulfil any obligation, including any statutory and/or agreed warranty obligation, if it is prevented from doing so by force majeure. Force majeure on the part of Simendo means, among other things: (i) force majeure on the part of suppliers of Simendo, (ii) the failure to properly fulfil obligations on the part of suppliers that were prescribed to Simendo by the HCI, (iii) defects in items, Device, software or materials of third parties the use of which was prescribed to Simendo by the HCI, (iv) government measures, (v) power failures, (vi) Internet, data network or telecommunication facilities failures, (vii) war and (viii) general transport problems.

14.2 Either of the parties shall have the right to rescind the Agreement in writing if a situation of force majeure persists for more than 60 days. In such an event, that which has already been performed under the Agreement shall be paid for on a proportional basis without the parties owing each other anything else.

15. Transfer of rights and obligations
15.1 Simendo is entitled to sell, transfer or pledge its claims to payment of amounts owed to a third party.

16. Applicable law and disputes
16.1 The Agreement is governed by Dutch law. The United Nations Convention on Agreements for the International Sale of Goods (CISG) does not apply.

16.2 All disputes between Simendo and the HCI that arise by reason of the Agreement shall be resolved by arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering – SGOA), which has its registered office in The Hague, the Netherlands, the foregoing without prejudice to the right of each party to request preliminary relief in summary arbitral proceedings and without prejudice to the right of each party to take precautionary measures. Arbitration proceedings shall take place in the English language in The Hague.

Chapter 2. The Services
17. Performance
17.1 Simendo shall perform the Services with care to the best of its ability and in accordance with the Agreement. All performed Services shall substantially meet the description provided in the Documentation.

17.2 The HCI accepts and/or acknowledges that:

The Services only provide for an initial component part of the full training program of a surgeon. After having completed the training on the Training Device, trainee surgeons should follow the rest of the training program, including but not limited to box-training, pelvi-trainers and training on corpses and pigs;
The training that is provided on the Training Device is a basic surgical skills training and does not provide training for actual surgical procedures;
A trainee surgeon which has had training on a Training Device should start actual surgery under the direct supervision and responsibility of a senior surgeon.
It is the sole responsibility of the HCI to determine whether the training that is offered by means of the Services meets the training needs of surgeons that perform surgical procedures on the premises of the HCI.
Scientific research has validated that training on the Training Device has a positive effect on the development of basic surgical skills.
19. Support
19.1 Simendo shall provide, by telephone or email, second line support on the use and functioning of the Services to a single dedicated contact person of the HCI. Simendo shall handle properly substantiated requests for support within a reasonable term in accordance with its usual procedures. Simendo does not guarantee the accuracy, completeness or timeliness of replies or the support offered. Support services shall be performed on working days during Simendo’s usual business hours.

20. Use Restrictions
20.1 The HCI may only enable surgeons working on the premises of the HCI to use the Services. It is not allowed to sell, rent out, dispose of or otherwise make the Services available to third parties. The HCI may also not grant, whether or not remotely (online), a third party access to the Training Device or place the Training Device on the premises of a third party.

20.2 All End-Users shall be contractually obliged by the HCI to observe these GTC when using the Services. The HCI shall be liable to Simendo for all damages caused by End-Users that are linked to the HCI in the Online Services as a result of acting in violation of these GTC.

Chapter 3. Training Device
21. Delivery and return
21.1 Simendo shall deliver the Training Device to the HCI ex DDP [Incoterms 2000] at the designated delivery location of the HCI.

21.2 The HCI shall install, configure, connect and test the Training Device(s) in accordance with the Documentation. Simendo will provide remote (online) support to the HCI in accordance with the SLA option selected by the HCI.

21.3 The risk of loss, theft, misappropriation or damage of the delivered Training Device shall pass to the HCI at the time at which the HCI or an auxiliary person of the HCI comes into actual possession of the Training Device.

21.4 The Training Device shall remain the property of Simendo. The HCI shall not remove any ownerships signs affixed to the Training Device that identify Simendo’s ownership rights.

21.5 Upon the termination of the Agreement, the HCI will be required to return the Training Device to Simendo. The HCI will return the Training Device within one [1] month after the date of termination.

22. Duty of care
22.1 The HCI shall place the Training Device in an area that meets the requirements specified by Simendo for the Training Device, among other things in terms of temperature, humidity, Internet connectivity, power connections and other technical area requirements.

22.2 The HCI shall take reasonable care of the Training Device during the term of the Agreement in accordance with the level of care that it applies to Device of its own that have similar value and application.

23. Guarantee
23.1 Simendo does not guarantee that the Training Device(s) meet all applicable rules and regulations in the jurisdiction of the HCI. It is the sole responsibility of the HCI to validate whether it is allowed to install and use the Training Device(s) for the purposes of conducting basic surgical skills training.

24. Repairs
24.1 Simendo shall repair hardware faults in the Training Device within the scope of the SLA option selected by the HCI. Simendo shall be entitled to replace the Training Device if it elects to do so. Simendo shall be entitled to charge its associated costs to the HCI if faults in the Training Device, are entirely or partly the result of incorrect, careless or incompetent use or of external causes like fire or water damage, or if the HCI makes changes, or has changes made, in the Training Device without Simendo’s permission. Simendo shall not withhold such permission on unreasonable grounds.

24.2 The HCI is not entitled to a temporary replacement Training Device during the time that the Training Device is being repaired.

24.3 Simendo shall endevour to repair faults in the Training Device that have been properly reported to it by the HCI within the term specified for the SLA option selected by the Customer. In these GTC, ‘fault’ means a failure of the Training Device to function in accordance with the Documentation. A malfunction only applies if it can be demonstrated by the HCI and is, in addition, reproducible. Simendo is also entitled, though not obliged, to perform preventive repairs.

24.4 The HCI shall inform Simendo of a fault in the Training Device immediately after it has occurred by means of a detailed description.

25. Exclusions
25.1 Work performed to investigate or repair malfunctions that are the result of or connected with End-User errors, improper use of the Training Device or external causes like failures of internet service, data network connections or power supplies is excluded from Simendo’s repair obligations under the Agreement.

25.2 Simendo is never obliged to recover data that has been corrupted or lost as a result of faults in the Training Device.

Chapter 4. Software
26. Right of use and restrictions on use
26.1 The HCI is entitled to use the Software solely on the Training Device for the duration of the Agreement on the basis of a licence for use. The right to use the Software is non-exclusive and may not be transferred, pledged or sublicensed.

26.2 The HCI’s right of use extends only to the Software’s object code as pre-installed on the Training Device. The HCI does not receive any entitlement to the source code of the Software.

26.3 The HCI is not entitled to reverse engineer or decompile the Software unless specifically allowed by applicable mandatory law.

26.4 The Software contains Open Source Software. The use of the Open Source by the HCI is subject to specific license terms of the respective developers. These license terms shall apply between Simendo and the HCI with respect to the Software in addition to these GTC, provided that Simendo has communicated the contents of the license terms to the HCI prior to the conclusion of the Agreement. In case of any conflict of the license terms and these GTC, the license terms shall supersede the GTC.

27. Software maintenance
27.1 Simendo shall be obliged to perform maintenance and support services with respect to the Software within the scope of the SLA option selected by the HCI. The maintenance obligation includes fixing errors in the software within and making new versions of the software available to the HCI.

27.2 An “error” in the Software means a failure of the Software to function in accordance with the Documentation. The HCI must report errors in detail to Simendo. Following receipt of the report, Simendo shall strive to the best of its ability to fix errors and/or implement improvements in later, new versions of the Software in accordance with its usual procedures. Depending on the urgency and Simendo’s version and release policy, the results shall be made available to the HCI in a manner and within a term determined by Simendo. Simendo is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in the software. The HCI shall itself install, organize, parameterize and tune the corrected software or the new version of the software made available.

27.3 Simendo does not guarantee that the Software will operate without interruption and/or that all errors will always be fixed.

27.4 The fixing of errors in the Software shall take place remotely via the Online Services, via TeamViewer or an another means of remote communication. Simendo is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in the Software.

27.5 Simendo is never obliged to recover data that has been corrupted or lost.

27.6 Any new versions of the Software shall be made available at Simendo’s discretion and shall be distributed to the HCI via the Online Services.

27.7 Three months after a new version of the Software has been made available, Simendo shall no longer be obliged to fix errors in the previous version and to provide support and/or perform maintenance work with respect to a previous version.

27.8 Simendo may incorporate functionality from a previous version of the Software in unaltered form, but does not guarantee that each new version includes the same functionality as the previous version. Simendo is not obliged to maintain, modify or add certain features or functionalities of the Software specifically for the HCI.

Chapter 5. Online Services
28. End-User accounts
28.1 To able to utilize the full functionality of the Services the HCI will need to set-up and activate an account for its End-Users via the Online Services.

28.2 Per Training Device the HCI can activate three [3] accounts for the Online Services for End-Users that are supervising surgeons and an unlimited number of accounts for End-Users that are trainee surgeons.

28.3 Accounts for trainee surgeons can be used in combination with multiple Training Devices irrespective of whether the Training Device has been delivered to a particular HCI. Training history that is stored in the profile of the End-User will however continue to be linked to a particular HCI unless the trainee has indicated via the Online Services that he/she wishes to switch to another HCI.

Last updated: 7 March 2019