Firely Terms of Service

By creating an account on Simplifier.net, or by using any other Products or Services of Firely B.V., you agree to being bound by the following terms and conditions.

1. Definitions

1.1. Content: all computer programs, source code, data, or other material which can be obtained through the Platform, not being Firely Products;

1.2. Contract: an agreement for additional Services, such as a Paid Plan or a licence to Firely Products;

1.3. Firely: Firely B.V., with its registered offices at Bos en Lommerplein 280, 1055 RW Amsterdam, The Netherlands;

1.4. Firely Products: all software that belongs to Firely and that can be obtained through the Platform, such as Forge and Vonk;

1.5. Paid Plan: an upgrade to the default User Account which grants User additional features as specified on the Platform;

1.6. Parties: User and Firely;

1.7. Platform: the website Simplifier.net, with the exception of the Content on the Platform and other Firely Products;

1.8. Services: all services that Firely can deliver to User, such as the right to use the Platform, the right to use the Firely Products, maintenance, support, advice, training, hosting and cloud services;

1.9. Terms: the present terms of service;

1.10. User: the person or organisation that creates a User Account on the Platform;

1.11. User Account: the personal account of User on the Platform.

2. General

2.1. The Terms apply to User and Firely for all Services.

2.2. Firely is entitled to amend these Terms. The most recent version of the Terms is published on the Platform. User will be notified by email of any upcoming changes in the Terms. Amendments become effective on the date referred to in the relevant publication. Derogations from the Terms will only be valid if explicitly agreed on in writing and laid down in a document signed by both Parties.

2.3. The Terms apply to the exclusion of User’s terms or purchase terms, if any; Firely does not accept, now for then, User’s terms being declared applicable or any referral by User to other terms being applicable, whether its own purchase terms or terms applied by a third party.

2.4. Firely is entitled to transfer any rights and obligations under the Terms or a Contract to third parties.

2.5. User is not entitled to transfer any rights and obligation under the Terms or a Contract to third parties without Firely’s written permission. Permission will not be withheld without reasonable cause; Firely will be entitled to make this permission subject to further conditions.

2.6. In the event any of the provisions in the Terms should be void, the other provisions will remain in full force. Parties will then be obliged to consult each other and draft a new provision or provisions to replace any of the provisions that are void and to draft the new provision(s) in such a way that either the purport and intention of the void provision(s) is retained as much as possible, or the relevant provision is deemed to have retained its validity by conversion.

2.7. HL7 and FHIR are the registered trademarks of Health Level Seven International, Ann Arbor, MI USA.

3. Contracts

3.1. User can request a Contract for a Paid Plan or Firely Product by contacting Firely. Firely will then send User a contract form. A Contract is entered into when the contract form has been signed by both Parties.

3.2. All Contracts are automatically renewed for the same period as the initial term, until User or Firely terminates the Contract in accordance with article 11.

3.3. The Terms apply to all Contracts. If there should be any inconsistencies, the provisions in the Contract prevail over those in the Terms.

4. User Account

4.1. When creating a User Account, User is to provide a name, a valid email address and any other information requested to complete the signup process. The creation of a User Account is free of charge. The creation of a User Account involves Firely collecting personal data provided by User to Firely, which data is needed by Firely to fulfil its obligations under the Terms.

4.2. A User Account may only be used by one person. A single login shared by more than one person is not permitted. User must keep his or her account information and password confidential. Firely cannot and will not be liable for any loss or damage resulting from the failure to comply with this security obligation.

4.3. User is responsible for all activities that take place in the context of the User Account. The Platform may not be used for any illegal or unauthorized purpose.

4.4. If User’s bandwidth usage on the Platform significantly exceeds the average bandwidth usage of other Firely customers (fair use; as determined by Firely), Firely reserves the right to throttle file hosting until User has reduced bandwidth consumption. If User, after having been notified by Firely, still exceeds the average bandwidth usage, Firely has the right to disable the User Account.

5. Usage of the Platform

5.1. The Platform is made available by Firely as a remote service. Firely will make reasonable efforts to repair defects in the Platform within a reasonable period of time.

5.2. The Content on the Platform is created and made available by other users of the Platform, without any intervention by Firely. All Content is provided on an “as is”, “where is” and “as available” basis. Firely is neither responsible nor liable in any way for the Content available on the Platform.

5.3. Firely does not guarantee that (i) the Platform and the Content will meet specific requirements, (ii) the Platform and Content will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Platform or Content will be accurate or reliable, (iv) the quality of the Platform or Content will meet User’s expectations.

5.4. Firely reserves the right, at any time, to modify or discontinue, temporarily or permanently, the Platform (or any part thereof). In case of discontinuation of the Platform, Firely will make a reasonable attempt to warn User prior to discontinuation.

5.5. Cancelling a Paid Plan may cause loss of access to Content, features, or capacity. Firely does not accept any liability for such loss.

5.6. Firely is never obliged to repair Content, settings, or any other uploaded data on the Platform that have been corrupted or lost.

5.7. User is not allowed to reproduce, duplicate, copy, sell, resell or exploit any portion of the Platform. User may specifically not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without Firely’s explicit permission in writing.

5.8. Firely is entitled to collect data on the usage of the Platform, for the purpose of improving the Services, in accordance with the privacy notification on the Platform.

5.9. User may access the Platform data via an API (Application Program Interface). Firely reserves the right, at any time, to modify or discontinue, temporarily or permanently, with or without notice, access to the API (or any part thereof).

5.10. Abuse or excessively frequent requests to the Platform via the API may result in temporary or permanent suspension of the User Account’s access to the API. Firely will determine abuse or excessive usage of the API at its sole discretion. Firely will make a reasonable attempt to warn User prior to said suspension.

5.11. Firely is not liable for any direct, indirect or consequential 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 Platform, the Content, the API or third party products that access data via the API.

6. Uploading Content

6.1. By uploading any data or Content to the Platform, User grants Firely the right to save and host the Content. User guarantees that no third party intellectual property rights prohibit uploading the Content to the Platform.

6.2. By setting Content to be viewed publicly, User grants Firely and all users of the Platform the irrevocable right to download, use and link the Content. User guarantees that no third party intellectual property rights to the Content, prevent User from granting such right. User guarantees that it is fully entitled to upload the data or Content and to grant other users full access to and use of the Content.

6.3. Firely will make reasonable efforts that User has exclusive access to Content on the Platform which is uploaded and set to be viewed privately. User can delete uploaded private Content from the Platform.

6.4. User is strictly prohibited to upload 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 (spam) messages.

6.5. User will defend Firely against any claim, demand, suit or proceedings made or brought against Firely by a third party alleging that the Content uploaded by User, or the use of the Platform by User, is in violation of these Terms, infringes or misappropriates the intellectual property rights of that third party or violates applicable law, and will indemnify and hold Firely harmless against any damages finally awarded, and against reasonable attorney’s fees incurred by Firely in connection with any such claim, demand, suit or proceedings, provided always that Firely (a) promptly gives User written notice of the claim, demand, suit or proceedings; (b) gives User sole control of the defence and settlement of the claim, demand, suit or proceedings (provided that User does not settle any claim, demand, suit or proceedings unless the settlement unconditionally releases Firely of all liability); and (c) provides User all reasonable assistance, at User’s expense.

6.6. Firely has the right to refuse or remove Content that is a breach to the Firely Terms of Service or laws and regulations.

7. Firely Products

7.1. When Parties enter into a Contract regarding Firely Products, Firely grants User, for the duration of the Contract exclusively, a non-exclusive licence to use the Firely Products under the conditions set forth in the Terms and Contract.

7.2. All Firely Products are provided on an “as is” basis. Firely is neither obliged to maintain the Firely Products nor to provide support to users and/or administrators of the Firely Products, unless specifically agreed upon in the applicable Contract.

7.3. All intellectual rights and intellectual property rights that may or will be exercised – wherever and whenever – with respect to the Firely Products, are exclusively vested or will be exclusively vested in Firely, its licensors or suppliers.

7.4. User is not entitled to: (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 not set forth in these Terms.

7.5. 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 User. All updates are subject to the applicable Contract and these Terms.

7.6. Firely’s obligations to make the Firely Products available and User’s rights to use the Firely Products are strictly restricted to the so-called object codes of the Firely Products and they are explicitly not related to making the Firely Products’ source codes available. Neither the Firely Products’ source codes nor the technical documentation will be made available to User, unless explicitly specified in the Contract.

7.7. User may exclusively use the Firely Products in and for the benefit of its own business or organisation and only in so far as this is required for the intended use.

7.8. Upon Firely’s request, User will promptly render assistance in an investigation to be carried out by or on behalf of Firely in the context of User’s compliance with the restricted user rights. Upon Firely’s first request, User will allow Firely access to its premises and systems. Firely will observe confidentiality with respect to any confidential business information obtained from User in the context of such investigation, in so far as that information is not related to the use of the Firely Products itself. The audit will be performed no more than once per year, unless Firely has concrete reasons to perform an audit on an ad hoc basis.

7.9. Immediately following the Contract’s termination, User will return to Firely all copies of the Firely Products that User has in its possession, unless Firely has indicated that User is to destroy these. User will report said destruction in writing, without delay. Following the Contract’s termination, Firely will not be obliged to assist User in a possible data conversion or migration to another system, as required by User, unless explicitly agreed upon otherwise.

8. Payment

8.1. Firely is entitled to change the prices for renewals of Contracts with a maximum of 5%. Firely will notify User in advance of any upcoming price changes.

8.2. For monthly payment plans, Firely invoices, in advance, on a monthly basis. For yearly payment plans, Firely invoices, in advance, on a yearly basis. When changing from a monthly invoicing cycle to a yearly invoicing cycle, Firely will invoice a full year at the next monthly invoice date.

8.3. For ‘pay per use’ payment plans, Firely invoices, at the end of each month, the actual usage by User during that month. In the event of pay per use payment plans, usage is measured by Firely.

8.4. All fees are in euros and exclusive of all taxes, levies, or duties imposed by taxing authorities.

8.5. 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.

8.6. User is obliged to pay invoices within thirty (30) days of the invoice date in the way and into the account indicated by or on behalf of Firely. Payment is to take place without any discount or setoff.

8.7. User is neither liable for payment of wages to Firely’s employees nor for payment of social insurance premiums and wage taxes.

8.8. For any upgrade or downgrade in plan level of the Platform during a monthly invoicing cycle, the credit card provided will automatically be charged at the new rate at the beginning of the next invoice cycle. For upgrades during a yearly invoicing cycle, Firely will immediately charge the difference in plan costs, prorated the remaining time in the yearly invoicing cycle.

8.9. If User fails to meet the payment term, User is in default by operation of law and default interest is due and payable to Firely, which default interest is equal to the level of the statutory commercial interest rate, to be calculated as from the due date.

8.10. For as long as User should fail to meet any of its obligations towards Firely and has not remedied this failure, even after having been served a default notice, Firely is entitled either to suspend the performance of its obligations towards User for as long as User continues failing to meet its obligations towards Firely as referred to above or to discontinue the delivery of Products and Services until User has furnished adequate security – at Firely’s discretion – for the performance of its obligations. Firely is also entitled, without being held to any compensation of damages and if there is probable cause (such as User’s repeated failure to meet its payment obligations), to change the payment terms and/or to demand sufficient security before performing any other or new Services and/or delivering Products. Firely Terms of Service version 1.22, 12 April 2018 page 4 of 5

8.11. User is not entitled to suspend payment obligations towards Firely in connection with possible counterclaims towards Firely or to set these payment obligations off, except if and in so far as these claims and obligations have been explicitly acknowledged by Firely in writing.

8.12. In the event User defaults on the (timely) performance of its obligations, Firely may pass on the claim for collection, in which case User will be obliged to pay, apart from the total amount due, including default interest, all judicial and extrajudicial costs, including the costs charged by external experts. All this does not affect any of the other statutory and contractual rights Firely may have.

9. Liability

9.1. Firely’s total liability for an attributable failure to meet its obligations under the Terms, or on any other legal basis, explicitly including every failure to meet guarantee commitments and indemnity obligations agreed on with User, is limited to the compensation of direct damage to the maximum of the aggregate amount of fees (exclusive of VAT) User has paid to Firely under the Terms for the past year. Firely’s total liability for direct damages, or on whatever legal basis, will never exceed €100,000 (one hundred thousand euros).

9.2. Parties are not liable for indirect damages, consequential damages, lost profits, missed savings, damage to goodwill, damage as a result of business interruptions, damage arising from claims filed by User’s customers, damage related to the use of third party property, materials or software that User advised Firely to use and damage related to Firely’s engaging certain suppliers at User’s request. Firely is not liable either for any modification, suspension or discontinuance of the Services.

9.3. The exemptions and restrictions of liability referred to in articles 9.1 and 9.2 do not affect any of the other exemptions and restrictions of Parties’ liability laid down in these Terms.

9.4. The exemptions and restrictions of liability referred to in the articles 9.1 to 9.3 do not apply if and in so far as the damage results from intent or deliberate recklessness on the side of Firely.

9.5. Unless performance is permanently impossible for a Party, liability of that Party for the imputable failure to meet its obligations under the Contract only arises if the other Party immediately serves that Party a notice of default, in which a reasonable term is set for that Party to remedy the failure and the Party who has failed to meet its obligations continues doing so even after the deadline. The default notice is to contain a detailed description of the failure so that the Party that has failed to meet its obligations can respond adequately.

9.6. Any right to compensation of damages is conditional on the Party’s notifying the other Party in writing of the damage as soon as reasonably possible after it has been noticed. Any claim for compensation of damages lapses by the mere expiry of a period of twelve (12) months after the claim has arisen, unless the Party in question has instituted legal action for compensation of the damages suffered before the lapse of that period.

9.7. User indemnifies and holds Firely harmless against all third party claims, of whatever nature and regardless of the cause, that may arise in relation to the performance of the Services by User and Firely, unless and in so far as User proves that the damage was caused by an imputable act or omission on the side of Firely, for which act or omission Firely would have been liable towards User under these Terms if the damage had been suffered by User itself.

10. Force Majeure

10.1. Neither Party is obliged to meet any of its obligations, including any statutory and/or contractual guarantee commitments, if it is prevented from doing so as a result of circumstances beyond its control. Circumstances beyond Firely’s control are understood to mean, amongst other things: (i) circumstances beyond Firely’s suppliers’ control, (ii) suppliers that User advised Firely to use not properly meeting their obligations, (iii) the defective condition of items, hardware, software or material of third parties which User advised Firely to use, (iv) government measures, (v) electricity failures, (vi) failures of internet, data network or telecommunication facilities, (vii) war and (viii) general transportation problems.

10.2. If a force majeure event lasts for more than sixty (60) days, each Party will be entitled to terminate (ontbinden) the Contract in writing. Everything that has already been performed under the Contract will then be settled proportionally, without anything being payable by either Party to the other Party in any other respect. For the period of sixty (60) days referred to, performance of the obligations affected by the force majeure event will be suspended, but the Contract entered into between Parties will remain in effect as much as possible.

11. Termination

11.1. User can terminate (opzeggen) a Contract by written notice of termination to Firely. If the notice is received by Firely before the end of the current month or year, which has already been paid, the termination will take effect immediately and User will not be charged for the next month or year.

11.2. Firely has the right to suspend the use of the Platform and refuse all current or future use of the Platform for User’s failure to meet its obligations under the Terms. Such suspension or termination will result in the deactivation or deletion of the User Account or the access to the User Account.

11.3. Either party is only entitled to terminate (ontbinden) the Contract because of the other party's failure to meet its obligations under that Contract if the other party imputably fails to meet essential obligations under the Contract and after having been served a notice of default, by email and as detailed as possible, in which notice a reasonable period of time is set for the other party to remedy the failure.

Firely Terms of Service version 1.22, 12 April 2018 page 5 of 5

11.4. Either Party may terminate a Contract by serving written notice of termination (opzeggen), without a notice of default, either in full or in part, with immediate effect if the other Party is granted suspension of payments – either provisionally or not – if a petition is filed for the other Party’s liquidation or a liquidation order is given, if the other Party’s enterprise is liquidated (faillissement) or terminated other than for the purpose of a reconstruction or of a merger of enterprises. Parties will never be obliged to refund any money received or to compensate damages because of termination as referred to in the present paragraph. In the event User’s estate is being liquidated, User’s right to use the software, websites and so on made available and User’s right to access and/or use the Products and Services delivered by Firely end without Firely having to perform any act to terminate (opzeggen) the Contract.

11.5. Any provisions in these Terms and in a Contract that are meant to survive the termination of the Contract, will remain in effect after the termination – such as provisions on liability, intellectual property rights and the dispute settlement rules.

12. Applicable law and disputes

12.1. These Terms and/or any Contract and/or any additional contract arising from them between Firely and User are exclusively governed by the laws of the Netherlands. Applicability of the Vienna Convention for the Sale of Goods 1980 is excluded.

12.2. Any dispute that arises in connection with these Terms and/or any Contract and/or any additional contract arising from them is subject to arbitration proceedings in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering), (http://www.sgoa.org/ts offices in Heemstede, without prejudice, however, to either Party’s right to request preliminary relief in preliminary relief proceedings, in arbitrational proceedings or in a court of law, and without prejudice to either Party’s right to take conservatory measures (e.g. to attach property before judgment).

12.3. Either Party is always entitled to initiate an ICT Mediation procedure in accordance with the Mediation Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Auromatisering) in the event of a dispute arising from these Terms and/or a Contract and/or any other, additional contract arising from them. The other Party is then obliged to actively participate in the ICT Mediation initiated, which legally enforceable obligation entails that the other Party should at least attend one joint meeting of mediators and Parties in order to give this extrajudicial form of dispute resolution a chance. Each Party is entitled to end the ICT Mediation procedure at any time following this joint meeting of mediators and Parties. The provisions in this Article do not affect the right of either Party, in so far as this Party should think this is necessary, to request preliminary relief in preliminary relief proceedings, in arbitrational proceedings or in a court of law, or to take conservatory measures (e.g. to attach property before judgment).

Version 1.22, 12 April 2018