In this document, we use the following terms:
“We”, “us” and “our” refers to Simmarcom Limited, the provider of the service and site.
“Marketing service” refers to marketing, technical, digital, contract, hosting, website, programming, coding, code, consultancy, advice, time, documents, support, or any other service available, provided, offered, sold or given freely by Simmarcom Limited.
“Service” and “site” are used interchangeably and refer to
- All websites provided by us
- Our cloud-based application or web application or mobile application and related support services provided by us.
“Customer” refers to any customer or prospective customer of Simmarcom Limited,
“You” and “your” refers to you and your company, as a customer, visitor to, user or consumer of our site, service, or marketing service.
“Agreement” refers to this document (these Terms and Conditions).
“Credit” refers to monies paid in advance, for the use of any part of our “service”.
Our terms and conditions
Simmarcom Limited is the owner, copyright owners and operator of the service and marketing service.
Simmarcom Limited is registered in England, registration number 08982780, and our registered address is 3 Redman Court Princes Risborough Buckinghamshire HP27 0AA.
This agreement governs your use of the sites, and by continuing to use the sites, you accept this agreement in full.
This agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts. In the event of a dispute, both parties must give proper consideration and adequate time for mediation before further action.
You acknowledge that, if any part of this agreement is held invalid or unenforceable, all other clauses, terms and parts of clauses will remain in force and shall continue unbroken.
You acknowledge that you have the legal authority to enter into this agreement. You are responsible for your chargeable use of the service.
The sites and service remains the property and title of Simmarcom Limited.
You agree to use our sites only for lawful purposes.
While we make every effort to keep this site up to date, we do not provide any guarantees or warranties that all information is accurate or current.
We do not accept liability for loss or damage incurred by users of the service or sites, whether direct, indirect or consequential, whether caused by tort, breach of contract or otherwise, in connection with our sites, their use, or the inability to connect to or use them, including loss of income, goodwill, time, profit or data.
Our sites, service and marketing service are available to companies, and to individuals over the age of 18. If you are under the age of 18, you are not permitted to submit forms, make enquiries, sign up, or purchase services.
Where a service allows you to enrol or add other user accounts and share other’s personal data, you acknowledge that you have the legal authority and consent to do so. You are responsible for the chargeable use of those you enrol or add to the service and to ensure that those others are not under the age of 18.
You agree to keep your contact details up to date, so that we can maintain business-related communications.
Data Privacy and GDPR
You acknowledge, and can demonstrate, your compliance with Data Privacy laws and regulations – most notably and especially the EU GDPR, otherwise you are not permitted to use our service.
Where we act as a Data Processor for you as a Data Controller, you must accept and agree to our Data Processing Agreement in full before any Data Processor service is provided by us.
Responsibilities and conduct
You will be honest, open, fair and transparent at all times when using the service, and to provide accurate information.
You will abide by the Laws governing England.
You are responsible for all content uploaded, posted, stored and communicated either by you, or by other users that you authorise, or by those who submit content to the service at your direct or indirect invitation (such as survey respondents, who will be submitting responses to your surveys).
When using the site or service, you agree:
Not to upload, post, store or communicate any information, text, images, links or any other content that is, or links to sites and content that is, at our sole discretion:
- Abusive, defamatory, illegal, pornographic, obscene, hateful, insulting, threatening, offensive, misleading or otherwise unacceptable.
- Spam including unsolicited email or commercial communication, advertising or solicitation.
- Dangerous, including programming scripts or any active content or code, computer viruses or malware, malicious software or any content encouraging unintended consequences such as phishing, denial of service or anything that may be considered an attack on computer system, personal or private data and information.
- Content for which you do not own the copyright and where you cannot prove explicit consent of the copyright owner.
- Infringing patents, intellectual property, trademarks, rights or designs or any other right in any country.
- Invading the privacy of a person or company.
- Illegal, or perceived as being illegal or potentially illegal.
We do not undertake to monitor, review, assess or correct every item of content.
You acknowledge that we may immediately discontinue and terminate your use of the service or any part of the service, and/or block or remove any content without warning and without liability if we consider, entirely at our discretion, that any such content described in this clause has been uploaded, posted, stored or transmitted via the service or is in breach of any clause of this agreement, and that you are entirely responsibility for damages, losses and costs arising, directly and consequentially, from such activity.
In compliance with Data Protection laws, you will inform those that you invite, directly and indirectly, to the service that their information, such as contact information, will be stored in our service.
You acknowledge that computer systems and Internet communication systems, including those from other service provider, can fail from time-to-time, and so you agree to hold backups of all content created and posted on the service. You agree to download, and securely store, data and information that belongs to you resulting from the use of the service, including data, information and reports gathered by the service.
You agree that we may use anonymised and aggregated data collected by the service to monitor performance and use of the service, to ensure effective running of the service.
You are not permitted to license, re-license, reverse-engineer or attempt to reverse-engineer any part of our service.
Passwords are encrypted in the service and cannot be read from the service. You agree to accept responsibility for keeping your login credential safe and secure, and not to share them or expose them in any way with any other user, person or company. You accept liability for any costs incurred when using your login to the service irrespective of who uses the service. If you suspect your login credentials have been compromised, you will inform us immediately.
If you become no longer legally authorised to use the service (e.g. if your employment, with the Company on whose behalf you use the service, terminates), you will cease use of the service immediately and inform us. Upon such notification, we will terminate your login to our service. You may setup a new account on the service in the future, subject to this agreement.
You agree that our service may publish your content, in accordance with the intended purpose of the service (e.g. when publishing your survey), and that you grant all necessary rights and licenses to legally permit such publication.
You confirm that you own copyright to all content uploaded, used and referred to on when using our service, or you are able to demonstrate that you have permission to use material which is copyrighted elsewhere.
The use of our sites must remain voluntary, and you may not impose any obligation on any person or company to use our sites.
Only persons of at least 18 years of age, or a legal adult in their country, may submit survey responses.
You are responsible, and carry liability, for all content that you upload, post or communicate with the service; and for any subsequent or consequential liability and cost.
You agree that your use of our service or site is at your risk, and you acknowledge that Simmarcom Limited, nor any of its employees, agents, representatives or other party, warrant that the site and service will not be interrupted or be error free. Nor do they make any warranty as to the outcomes, reports, information, data or accuracy that may be obtained from the use of the site or service. We disclaims all warranties of any kind, including, without limitation, the warranty of outputs, outcome or fitness for purpose, expressed or implied, of the site or service.
Virus and malicious software
We take steps to ensure the sites do not present viruses, malware or other malicious software, however you must have in place your own precautions against viruses, malicious software, trojans, key-loggers or other malware which may damage your own computer system. We cannot accept any responsibility for any loss or damage which you suspect arose from your use of our sites.
You must not misuse our site by endeavoring to introduce viruses, scripts or other malware which may cause harm to other computers or users.
You will refund to us all fees and costs incurred by us in complying with proper law enforcement or courts demands, as a result of any action or notification made by you.
You agree to hold harmless, defend and indemnify Simmarcom Limited, its officers, directors, employees and representatives, from and against any claims, liabilities, damages, losses, and expenses, including, without limits, reasonable legal fees, arising out of or in any way connected with your use of the Services, or your violation or breach of these Terms and Conditions.
We will take reasonable steps to ensure data and information collected by the service is properly stored, and is backed-up on a regular basis. Because of the complexities of the Internet, data processing systems, hosting, software and communications, our total and maximum liability is limited to monies paid to us for that part of the service for the periods affected by any loss of data and information stored in our service.
You also acknowledge that a reasonable period of time to restore or recover data and information from backup sources is acceptable, and that any such restored or recovered data may be in a different format to the original data, or may be incomplete due to technical failures.
We accept no liability for any failure to comply with these terms and conditions where such failure is due to circumstance beyond our reasonable control.
For the avoidance of any doubt, in all cases, our total and maximum liability is limited to monies paid to us for that part, and only that part, of the service or marketing service or any other work performed that may be in dispute.
You agree that our liabilities as stated herein are reasonable.
Terms of this agreement and termination
This agreement will commence when you register for the service, and will remain in force until either party discontinues or terminates the agreement which requires 30 days notice except where immediate termination is specified elsewhere in this agreement.
Either party can give 30 days notice without explanation. If we terminate, we will refund all unused monetary Credit amounts that we hold at the point of final termination, expect under specific circumstances specified elsewhere in this agreement.
Termination of this agreement terminates your use of the service, and the use of the service by your company.
Upon termination of this agreement, you shall neither assume nor retain any rights or title to any content or information that is uploaded, posted, stored, entered, submitted or communicate using our sites, including text, images, links or any other content, except where you originally provided such content or information. We will not reuse or share your information or content. You accept that we will remove your content and information from our sites at our discretion, except where such content or information must be retained for the essential operation of our sites.
Payments and refunds
Where payments are made and processed through PayPal (a 3rd party payment processor) we receive those payment less a PayPal transaction fee, which is deducted by PayPal.
We do not process any credit card or debit card payment and you acknowledge that we incur a non-returnable transaction fee for each payment (which is deducted by PayPal from the amount paid by you through PayPal). We do not hold any credit card or debit card information. You agree to maintaining the PayPal account from which you made payment for the life of your use of our service, so that payments and refunds may be processed.
Payment disputes with PayPal or your card provider are between you, PayPal and the card provider. We have no responsibility or liability for your payment transactions.
Where any service provided by us holds monetary credit for you or for your organisation (such as pre-paid credit in our Survey service), some or all of that credit is used during the normal and expected use of the service and is deducted from your available credit balance. Used (i.e. spent) monetary credit (that you, or someone in your organisation has authorised the spending of during their use of the service) is only ever refundable at our sole discretion.
Where we hold credit of any kind, your credit balance cannot go negative (into arrears).
You may only purchase credit on any service for the purpose of using that service, and for no other purpose. Misuse or suspected misuse (such as suspected money laundering or tax evasion) will result in your access to the service being terminated immediately. We will always report suspected, suspicious, or illegal use of our service to the proper legal authorities and police.
You may add credit to your credit balance at any time. However, our service must not be used to hold an excessive or unreasonably high credit balance. We will refund any monetary balance that we consider to be excessive at our sole discretion.
Some parts of a service will not operate without a positive credit balance. You acknowledge that it is your responsibility to maintain an appropriate positive credit balance for the expected and required operation of the service. You also acknowledge that we are not responsible or liable in any way whatsoever for your failure to maintain the necessary credit balance for the service to operate as expected.
Where the service holds unused monetary credit for you, your requests for refund will usually be honoured for the full paid amount. Under circumstances where we are subject to unexpected costs resulting from your action, refunds may be reduced by the amount of the original PayPal transaction fee that we incurred plus the unexpected costs that we incur, at our sole discretion. Unreasonable demands for repeated refunds (we deem unreasonable to be more than twice in any calendar month) may, at our sole discretion, result in any refund amount to be reduced by the PayPal transaction charge we incurred during the processing of the originating credit payment.
Any payment that is not completed, fraudulent, rejected by PayPal or charged-back to us in any way, will result in the non availability or immediate loss of service for which that payment was made, unless we agree otherwise in writing or by an email. You acknowledge that it is unreasonable for you to process a chargeback or request a refund where you have already used the credit or service for which you are claiming a chargeback or refund. We offer fair and reasonable treatment and will usually agree to a refund where you are unhappy with our service, and such refunds are provided as goodwill only.
Refunds are provided as goodwill, and the payment of a refund does not indicate any error or liability on our part.
In the case of a refund relating to purchases made using promotional offerings, we will reduce your service to a level concurrent with your net purchase after the refund. Credit that is offered free or at a reduced amount or originally purchased at a lower value will be the first credit to be refunded (in order of lowest cost). Promotional credit given freely will be clawed back in the event that a refund renders the original promotional terms invalid.
You acknowledge that you cannot claim a refund amount that is greater that the amount you have paid or the amount that is available as unused credit in your account whichever is the lowest amount.
Where we offer free service (such as free credit or free Survey respondents), you acknowledge that this is offered as goodwill and has zero (£0) monetary value and that we can withdraw or change the amount or level of free service with no notice. Free service or credit cannot be exchanged or transferred, or used in any other way, or refunded, or accumulated or carried forward.
Where the service is billed monthly, our payment of a refund will trigger the immediate termination of access to the service, except where we have incorrectly invoiced you or where we have agreed to a refund with terminating the service.
Agreed refunds are usually made within one calendar month, and for the prevention of fraud, we will only be made back to the account from which they were originally received.
Charges are as stated at the time of purchase and include all relevant taxes. From time to time the charges may change due to changes in tax levels, tax obligations or tax arrangements or other costs. We reserve the right to change the cost of your service by giving 30-days notice, unless we have agreed different terms.
Invoices for monthly paid service will be issued at the end of each calendar month, and payment is due within 30 days of each invoice date, unless we and you mutually agree otherwise in writing. Non-payment of a monthly invoice will result in the termination of access to the service, although we will endeavour to give an additional 5 days warning and notice.
We may invoice for completed services weekly or on a project basis.
For pre-paid services, no invoice is issued, and you should use the PayPal payment system as notification and record of payment.
Disclosure of information
We will not disclose any personal, contact or attributable data to any third party, except where:
- It is properly requested by law enforcement or a court action.
- We believe, at our sole discretion, that information uploaded, posted, stored or communicated using the service may be illegal, and where we are bound by law or duty to pass such information to law enforcement or the courts.
- The service, or part of the service, is bought by another company, under which circumstances your contact details will be passed to the acquiring company in order to maintain your ongoing access to the service, unless you inform us otherwise in writing within 7 days of our notice that states we intend to sell the service or site or part of the service or site to another company.
If you voluntarily agree to collaborate with others (such as your work colleagues) when using our online applications, then necessary elements of your contact data (typically first name, last name, and email address as stored in that application) will be visible to other with whom you agree to collaborate. This visibility is essential for that team collaboration. Existing users of our application (who must already independently know your email address) may invite you to sign up to an application in order to collaborate using that application (e.g. this may be a work colleague).
You may not assign this agreement to another party, person or Company without our consent.
We will not assign this agreement to another party, person or Company, except where our service or site, part of our service or site or our company is being acquired by another company and where such assignment is in the best interests of your ongoing use of the service.
Access to service and content
At our sole discretion, we may restrict your access to our site or service by filtering on various criteria without notice or explanation.
We reserve the right to remove any content from our site service which we consider to be in breach of this agreement.
Impact on other customers
The service is intended to be used by small and medium businesses and for individuals such as sole traders, and is built and hosted for that purpose. We offer our service to you to be used in a fair and reasonable way at the price we agree for that fair and reasonable use. We consider a fair and reasonable use to be less than 5% of the overall server loading over a continuous 2 week period, as measured by us.
If we assess that your use of the service exceeds fair and reasonable use so that your use is adversely affecting other users including access, availability, system loading and system performance, we will collaborate with you to address and remedy the problem. However, if in our Sole discretion, such a resolution is not possible after taking reasonable collaborative steps, you agree that we will terminate your use of the service with 30-days notice from us.
Reports and other data from our Survey service will usually remain available (for reporting and downloading) for 90 days after the most recent “live” respondent for each Survey (i.e. not a “test” respondent), and the Survey will be considered as expired and will terminate. If you wish us to retain the reports and data, for a Survey, in our system for longer than this 90 days, you must formerly request this by submitting a ticket before the end of the above 90-day period, and we reserve the right to make modest admin and storage charges.
The deletion of reports and data is permanent and irrevocable. It is your responsibility to download and safely store all data and reports for Surveys before the reports and data are deleted.
We reserve the right to also delete the Survey when we delete its reports and data. We reserve the right to terminate and delete any Survey and delete its reports and data if, at our sole discretion, we consider there is misuse of this clause or abuse of these Terms and Conditions.
The deletion of reports and data is to reduce system loading and maintain system response times for the benefit of all users.
Additional terms and conditions when using our “service”
“Service” refers to any cloud-based application or web application or mobile application and related support services provided by Simmarcom Limited, for example our Cloud Survey application.
Use of the service
You may use the service for your own use, or for the use of your business to communicate and interact with your direct and immediate customers.
Our survey system allows you to collect information from your invited survey respondents. Some of this collected information may be personal data. You must adhere to all relevant Data Privacy laws and regulations that protects each respondent (such as the EU GDPR for European citizens). You must clearly state and adhere to the the relevant data privacy laws for survey respondents in the welcome or introduction page of each survey.
You agree to respect the reasonable and lawful privacy requests that are expressed through the service, including email opt-out requests. You must not use the service to spam (i.e. to send unsolicited email or other unsolicited communications). You agree to keep your contact details up to date, so that we can maintain business-related communications.
Where we act as a Data Processor for you as a Data Controller (for example in our Cloud Survey application), you must accept and agree to our Data Processing Agreement (DPA) in full before any Data Processor service is provided by us. You will not be able to use the related service until you have read and accepted the DPA (this is part of the online sign-up process).
Reselling the service or acting as an agent
Unless you have an explicit written agreement with us, you may not use the service to communicate with indirect customers, or to ‘customers of your customers’ (e.g. in an agency arrangement).
You must not endeavour to hide the identity or ownership of the service, and clearly state where data is being stored, so as to prevent Data Privacy complaints.
The service may be used by you and your company only. Except where we have an explicit written agreement with you, you may not:
- Re-sell or re-market the service, or any part of the service, in any way or though any method or any third party
- Use the service as part of your agency or supplier engagement with your customers
- Represent the service as belonging to you or your company
- Attempt to license, sub-license, rent or lease any part of the service
- Include any aspect of the service in your sales, marketing or commercial activity to your customers, to the market, or to any other party, company or consumer.
For the avoidance of doubt, you are permitted to use the service to engage with your direct customers, prospects and consumers (this being the purpose of the service), as long as the service does not form part of a commercial proposition, sale, agreement or arrangement with your customer, prospects or consumers.
You acknowledge and agree that your re-selling, re-marketing or bundling of the service in any way, in part of in full, will result in the immediate termination of the service to you without redress, compensation or refund, and without liability or loss to us in any way. Marketing, research or other agencies, or partners, are invited to contact Simmarcom Limited to negotiate a separate commercial agreement for the re-use of our service.
Support for the service
We will endeavour to provide best effort support for queries, bugs and issues. All such queries, bugs and issues must be reported using the online ticket system in the related service. Only when the service is not accessible should tickets be raised by other methods.
Ongoing use of our service
You are permitted to use the service with zero (£0) credit balance.
Where any part of our service is “Pay-As-you Use”, that part of the service will only be available where payment has been made and completed. Access to other part of the service will remain intact, as long as other clauses of this agreement remain unbroken. You agree to maintain sufficient credit balance to maintain your required level of service and that we bear to liability or cost if you fail to maintain the necessary credit balance.
Where any part of our service is invoiced each calendar month, access to that part of the service will be terminated upon non-payment of monies past their due payment date. We will endeavour to give an additional 5 days warning and notice beyond the due payment date before terminating access to the service. Irrespective of any subsequent payment, we reserve the absolute right to decline or agree to a resumption of the service, and we have the absolute right to change the Terms and Conditions of any resumed service including future payment terms.
Availability of the service
The service is provided “as available” and “as is” by us. You acknowledge that you use the service at your own risk.
We reserve the right to decline any proposed or requested business relationship and to refuse the use of the service for any reason.
Because of the complexities of the Internet, web software, hosting or communications systems, we do not promise nor guarantee access, nor warrant that the sites or service will be error-free, or guarantee the results of any use of our service or sites.
We reserve the absolute right to change, modify, terminate or suspend the service at our sole discretion, although we will always endeavour to give reasonable notice (usually 30 calendar days) of any change to the service, except where an urgent repair is necessary to maintain the service. You acknowledge that we will maintain, repair and update the service, and you agree that we are not liable, in any way whatsoever, for any loss of service, loss of access to the service or subsequent losses, expense, reputation or goodwill. You also acknowledge that some changes or urgent repairs to the service may necessitate immediate remedial action and temporary unavailability without notice.
We will always endeavour to schedule maintenance changes, updates and other adjustments to the service outside of UK normal business hours which are Monday to Friday 9:00am to 17:30pm.
We shall bear no liability, including that for any negligence, for other companies or service providers who may be processing information or network traffic, such as a hosting or telecommunications service providers, should their action or failure restrict or deny access to our service.
The survey system is provided on a ‘Pay As You Go’ and there is no obligation on you to continue using the survey system, and we have no obligation to provide continued access to the service. If you do not use the survey system for more than 3 years (i.e you do not login or run a survey), we will terminate your access, delete all surveys and survey data (although Survey data is usually deleted after 90 days of a survey’s end) and delete your account. We do this to maintain system performance, and to ensure that we are not retaining data for any longer than necessary.
If you have an outstanding credit balance in the survey system when we close your account, we will make reasonable attempts to contact you (by email) to arrange a refund.
Where a Survey has not received responses for 90 days, you agree that the survey has ended, and that we have the right to terminate it and delete the survey and all of its data.
Additional terms specific to Simmarcom’s marketing service
The marketing service that will be provided by us to you will be agreed in writing in advance of any work, and will include the scope, completion metrics, engagement dates, total hours committed, daily hours, hourly fees and expenses payable, and payment terms and billing periods.
If you require change to the scope or terms of the agreed marketing services, we reserve the right to modify and renegotiate that previously agreed.
Payment terms, amounts and invoicing periods will be agreed in advance. Unless otherwise agreed, the invoicing period will be monthly (part payment pro-rata to the work completed).
You will pay each invoice within 30 days, and payment after 30 days will be subject to a 2.5% surcharge for each month or part thereof.
Fees are quoted exclusive of any Value Added Tax which may be applied if applicable, and these will be added to each invoice and payable by the Client.
The marketing service will continue until complete, or terminated by either party.
You agree that we may showcase the work we do for you, usually in the form of web site content with links to your website, and you also grant us permission to reproduce your logo for our showcase. You may ask not to be showcased and ask that your logo is not reproduced. We may ask for quotations for our web site but you are not obliged to provide a quotation.
Data and information access
The customer will make available all necessary data, information and access to systems in a timely way so as to accommodate the agreed engagement dates. Extensions to the dates because of unavailability of data, information and systems will incur additional charges.
Copyright and other Intellectual Property
Copyright to all delivered materials created by us will remain our property. The customer will have a perpetual license to use all materials created by us subject to full payment of all due invoices. This excludes materials to which we do not have copyright, ownership or license, which the customer may wish to separately license or purchase.
Website resale and licenses
Where we design or produce a website, we typically use software components such as CMS, themes, plugins, and other add-ins that have open source licenses. Some components might be commercially purchased and have different licenses. We are happy to provide links to all relevant licenses.
You agree to abide by the terms of all licenses.
Where we create components, including child themes and custom code, you agree that they remain our property and that you are not able to transfer these components to any third party unless we agree in advance. We grant you permission for continual use of our components in the final design and website, and we will also usually grant you permission to use the components to host the website elsewhere if you choose.
For clarity, you do not have permission to sell-on or resell or pass-on our software components or designs either for gain or otherwise, under any circumstances. You agree that any commercial gain that you make from our software components will be paid to use in full, and that you pay our potential loses where you allow other organisations to use our design or software components. If you think a 3rd party might be able to benefit from our designs, we are happy to consider a referral fee to you where you refer new business to us.
Either party may terminate an agreement for marketing services with 5 days notice, except where invoices are unpaid beyond their due date where we may terminate with immediate effect.
Upon termination the customer will pay us all outstanding invoices.
Notices, and Changes and Updates to these Terms and Conditions
We will give you notice of any changes to this agreement, such notification being posted on the appropriate website of the service. Please regularly review these Terms and Conditions. Changes that we consider to be very significant material changes in our opinion will be notified to you by email, to the email address you have registered in the service.
Update history for this document
Updated 30th March 2014
Updated 31st December 2015, where we added the “Customer showcase” clause.
Updated 31st May 2016, to reflect changes to our Survey service. None of the changes negatively impacted the previous clauses.
Updated 1st August 2016, to clarify the terms of refund requests
Updated 28th November 2016, to clarity data visibility during voluntary collaboration using our online applications
Updated 16th May 2018, to include GDPR
Updated 8th August 2018, document maintenance and update to improve clarity
Updated 11th February 2019, the section “Website resale and licenses” was added