TotalSim US Terms of Service
Effective: March 25, 2018
1. Your relationship with TotalSim
1.1 Your use of TotalSim’s products, software, services and web sites is subject to the terms of a legal agreement between you and TotalSim. “TotalSim” means TotalSim LLC (d.b.a. TotalSim US), whose principal place of business is 4960 Blazer Parkway, Dublin, OH 43017. TotalSim’s products, software, services and web sites are referred to collectively hereafter as the “Services” and exclude any services provided to you by TotalSim under a separate written agreement. This document explains the Terms of Service as they apply to the CFD web applications provided by TotalSim US.
1.2 Your agreement with TotalSim will always include, at a minimum, the terms and conditions set out in this document, unless otherwise agreed in writing with TotalSim. These terms and conditions are referred to herein as the “Universal Terms”. Open source software licenses for TotalSim source code constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Universal Terms, the open source licenses govern your agreement with TotalSim for the use of TotalSim Services or specific included components of TotalSim Services.
1.3 The Universal Terms form a legally binding agreement between you and TotalSim in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.
2. Accepting the Terms
2.1 You will be authorized to use the Services upon your acceptance of the Terms. Prior to acceptance of the Terms your use of the Services is restricted.
2.2 Your acceptance of the Terms is activated by the following methods:
(A) clicking ACCEPT or AGREE to the Terms, where this option is made available to you by TotalSim in the user interface for any Service; or
(B) by actually using the Services. In this case, you understand and agree that TotalSim will treat your use of the Services as acceptance of the Terms from that point forward.
3. Language of the Terms
3.1 If TotalSim has provided you with a translation of the English language version of the Terms, it is understood and agreed that the translation is provided for your convenience only and the English language versions of the Terms will govern your relationship with TotalSim.
3.2 In the event there is any contradiction between the English language version of the Terms and what a translation says, it is understood and agreed that the English language version shall take precedence.
4. Provision of the Services by TotalSim
4.1 TotalSim has subsidiaries and affiliated legal entities around the world (“Subsidiaries and Affiliates”). Sometimes, these companies will be providing the Services to you on behalf of TotalSim. You hereby acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to you.
4.2 TotalSim is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which TotalSim provides may change from time to time without prior notice to you.
4.3 As part of this continuing innovation, you acknowledge and agree that TotalSim may permanently or temporarily stop providing the Services, or any features within the Services, to you or to users in general at TotalSim’s sole discretion, without prior notice to you. You may stop using the Services at any time and are not required to specifically inform TotalSim when you stop using the Services.
4.4 It is acknowledged and agreed that you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account if TotalSim disables access to your account.
5. Use of the Services by you
5.1 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions, including any laws regarding the export of data or software to and from the United States or other relevant countries.
5.2 You agree that you will not engage in any activity that interferes with or disrupts the Services or the servers and networks which are connected to the Services.
5.3 You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose unless specifically permitted to do so in a separate agreement with TotalSim.
5.4 You agree that you are solely responsible for any breach of your obligations under the Terms and that TotalSim has no responsibility to you or to any third party for any such breach. You further agree that you are solely responsible for the consequences of any such breach which include any loss or damage that TotalSim may suffer as a result.
6. Privacy and personal information
6.2 You agree to the use of your data in accordance with TotalSim’s privacy policies.
7. Content in the Services
7.1 You understand that all information which you may have access to as part of, or through your use of, the Services is the sole responsibility of the person from which such content originated. All such information is referred to as the “Content” and includes data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images.
7.2 You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services, may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to TotalSim or by other persons or companies on their behalf. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content, in whole or in part, unless you have been specifically authorized to do so in a separate agreement by TotalSim or by the owners of that Content.
7.3 TotalSim reserves the right, but shall have no obligation, to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service. You agree that you are solely responsible for any Content that you create, transmit or display while using the Services and that TotalSim has no responsibility to you or to any third party. You further agree that you are solely responsible for the consequences of your actions which include any loss or damage which TotalSim may suffer as a result.
8. Proprietary rights
8.1 You acknowledge and agree that TotalSim or TotalSim’s licensors own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services, whether those rights are registered or not and regardless of the location in the world where those rights may exist.
8.2 There is nothing in the Terms that gives you a right to use any of TotalSim’s trade names, trademarks, service marks, logos, domain names, and/or other distinctive brand features, unless specifically authorized in writing with TotalSim.
8.3 If, in a separate written agreement with TotalSim, you have been given an explicit right to use any of these brand features, then you agree that your use of such features shall be in compliance with that agreement, any applicable provisions of the Terms, and TotalSim's brand feature use guidelines as updated from time to time. These guidelines will be viewable at a URL as TotalSim may provide for this purpose from time to time).
8.4 Under these Terms, TotalSim acknowledges and agrees that it obtains no right, title or interest from you or your licensors in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content, whether those rights are registered or not, and regardless of the location in the world where those rights may exist. You agree that you are solely responsible for protecting and enforcing those rights and that TotalSim has no obligation to do so on your behalf.
8.5 You agree that you shall not remove, obscure, or alter any proprietary rights notices, including copyright and trade mark notices, which may be affixed to or contained within the Services.
8.6 You agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos, unless you have been expressly authorized to do so in writing by TotalSim.
9. License from TotalSim
9.1 TotalSim gives you a personal worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by TotalSim as part of the Services as provided to you by TotalSim, hereafter referred to as the “Software”. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by TotalSim in the manner permitted by the Terms.
9.2 Subject to section 5.3, you may not copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless expressly permitted or required by law, or unless you have been specifically authorized in writing by TotalSim. In addition, you may not allow any third party not part of this agreement to copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof.
9.3 It is understood and agreed that you may not assign, or grant a sub-license of, your rights to use the Software, grant a security interest in or over your rights under the Terms, or otherwise transfer any part of your rights to use the Software, unless specifically authorized in writing with TotalSim.
10. Content license from you
10.1 It is understood and agreed that you retain copyright, and any other rights you already hold in Content, which you submit, post or display on or through the Services.
11. Software updates
11.1 The TotalSim Software may automatically download and install updates from time to time. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to permit TotalSim to deliver these to you, as part of your use of the Services.
12. Ending your relationship with TotalSim
12.1 The Terms will continue to apply until terminated by either you or TotalSim as set out below.
12.2 TotalSim may terminate its legal agreement with you at any time if:
(A) you have breached any provision of the Terms or have acted in manner which clearly shows that you do not intend to, or are unable to, comply with the provisions of the Terms; or
(B) TotalSim is required to do so by law or in the event the provision of the Services to you is, or becomes, unlawful in the state or country where you use the service; or
(C) the partner with whom TotalSim offered the Services to you has terminated its relationship with TotalSim or ceased to offer the Services to you; or
(D) TotalSim is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
(E) the provision of the Services to you by TotalSim is, in TotalSim’s opinion, no longer commercially viable.
12.3 Nothing in this Section shall affect TotalSim’s rights regarding provision of Services under Section 4 of the Terms.
12.4 Upon termination of the Terms, all legal rights, obligations and liabilities that you and TotalSim have benefited from, been subject to, or which have accrued over time during the time the Terms have been in force, or which are expressed to continue indefinitely, shall be unaffected by this cessation.
13. EXCLUSION OF WARRANTIES
13.1 NOTHING IN THESE TERMS, SHALL EXCLUDE OR LIMIT TOTALSIM’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE.”
13.3 IN PARTICULAR, TOTALSIM, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
13.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
13.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TOTALSIM OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
13.6 TOTALSIM FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
14. LIMITATION OF LIABILITY
14.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 13.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT TOTALSIM, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT ,WHETHER INCURRED DIRECTLY OR INDIRECTLY, ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
(II) ANY CHANGES WHICH TOTALSIM MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES OR ANY FEATURES WITHIN THE SERVICES;
(III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(IV) YOUR FAILURE TO PROVIDE TOTALSIM WITH ACCURATE ACCOUNT INFORMATION;
(V) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
14.2 THE LIMITATIONS ON TOTALSIM’S LIABILITY TO YOU IN PARAGRAPH 14.1 ABOVE SHALL APPLY WHETHER OR NOT TOTALSIM HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
15. Copyright policies
15.1 It is TotalSim’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law, including the Digital Millennium Copyright Act in the United States, and to terminate the accounts of repeat infringers.
16. Other content
16.1 The Services may include hyperlinks to other web sites or content or resources. TotalSim may have no control over any web sites or resources which are provided by companies or persons other than TotalSim.
16.2 You acknowledge and agree that TotalSim is not responsible for the availability of any such external sites or resources and does not endorse any advertising, products or other materials on or available from such web sites or resources.
16.3 You acknowledge and agree that TotalSim is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
17. Changes to the Terms
17.1 TotalSim may make changes to the Universal Terms or add Additional Terms from time to time. When any changes are made, TotalSim will make a new copy of the Universal Terms available at https://www.totalsim.us/terms-of-service and any new Additional Terms will be made available to you from within, or through, the affected Services.
17.2 You understand and agree that if you use the Services after the date on which the Universal Terms or Additional Terms have changed, TotalSim will treat your use as acceptance of the updated Universal Terms or Additional Terms.
18. General legal terms
18.1 You may use a service or download a piece of software, or purchase goods, which are provided by another person or company as a result of, or in connection with your use of the Services. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.
18.2 The Terms constitute the whole legal agreement between you and TotalSim and govern your use of the Services, excluding any services which TotalSim may provide to you under a separate written agreement, and completely replace any prior agreements, verbal or written, between you and TotalSim in relation to the Services.
18.3 You agree that TotalSim may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
18.4 You agree that if TotalSim does not exercise or enforce any legal right or remedy which is contained in the Terms, or which TotalSim has the benefit of under any applicable law, this will not be taken to be a formal waiver of TotalSim’s rights and that those rights or remedies will still be available to TotalSim.
18.5 If any court of law having the jurisdiction to decide on this matter rules that any provision of these Terms is invalid then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
18.6 You acknowledge and agree that each member of the group of companies of which TotalSim is the parent shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on, or rights in favor of, them. Other than this, no other person or company shall be third party beneficiaries to the Terms.
18.7 The Terms, and your relationship with TotalSim under the Terms, shall be governed by the laws of the State of Ohio without regard to its conflict of law’s provisions. You and TotalSim agree to submit to the exclusive jurisdiction of the courts located within Franklin County, Ohio to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that TotalSim shall still be allowed to apply for injunctive remedies, or an equivalent type of urgent legal relief, in any jurisdiction.
19. Additional Terms for Extensions for TotalSim
19.1 These terms in this section apply if you install extensions to interact with your TotalSim services. Extensions are small software programs, developed by TotalSim or third parties that can modify and enhance the functionality of TotalSim applications. Extensions may have greater privileges to access your browser or your computer than regular webpages, including the ability to read and modify your private data.
19.2 From time to time, TotalSim may check with remote servers, hosted by TotalSim or by third parties, for available updates to extensions, including but not limited to bug fixes or enhanced functionality. You agree that such updates will be automatically requested, downloaded, and installed without further notice to you.
19.3 From time to time, TotalSim may discover an extension that violates TotalSim developer terms or other legal agreements, laws, regulations or policies. TotalSim will periodically download a list of such extensions from TotalSim’s servers. You agree that TotalSim may remotely disable or remove any such extension from user systems at its sole discretion.
20. Additional Terms for Enterprise Use
20.1 If you are a business entity, the term “you” refers to the entity, not an individual. However, the individual accepting on behalf of the entity represents and warrants that he or she has the authority to act on your behalf, that you represent that you are duly authorized to do business in the country or countries where you operate, and that your employees, officers, representatives, and other agents accessing the Service are duly authorized to access TotalSim and to legally bind you to these Terms.
20.2 Subject to the Terms, and in addition to the license grant in Section 9, TotalSim grants you a non-exclusive, non-transferable license to reproduce, distribute, install, and use TotalSim services solely on machines intended for use by your employees, officers, representatives, and agents in connection with your business entity, provided that their use of TotalSim services will be subject to the Terms.
Updated: January 10, 2019