Last Updated 21st May 2020


The following SHE Software terms and conditions (“Terms of Use”) govern a customer’s right to use and access the SHE Software Hosted Services by individuals or entities who purchase the Hosted Services by way of an online ordering document (such as an Order Form) or are provided a limited term evaluation access right, as more fully defined below (collectively referred as a “Customer” below).

By using and accessing the Hosted Services, the Customer expressly agrees to and accepts these Terms of Use (whether on behalf of itself or a legal entity being represented), and agrees that these Terms of Use shall exclusively apply to any Order Form placed under these Terms of Use.

If the Customer is a party to an active SHE Software Framework Services Agreement (“Master Agreement”), Customer is hereby advised that the Master Agreement will not apply to any evaluation transactions contemplated hereunder and, in lieu thereof, these Terms of Use will exclusively apply to the ordered Hosted Services used for evaluation purposes as obtained on SHE Software’s website.

1.        Definitions and Interpretation. Unless the context otherwise requires, capitalized words and expressions have the meanings below:

Business Day: any day which is not a Saturday, Sunday or public holiday in the United Kingdom or the United States, as applicable to Customer’s primary business location.

Confidential Information: any information, whether in oral, visual, written, electronic or in other tangible or intangible form, that is proprietary or confidential to a disclosing party and is either clearly labelled as such or identified as Confidential Information at the time of disclosure. The Hosted Services, the Software, any technical documentation not made publicly available, and the results of any performance tests of the Hosted Services are always considered SHE Software Confidential Information. Customer Data is Customer’s Confidential Information.

Contract Start Date: the date Customer receives its initial user access credentials from SHE Software.

Customer Data: the data inputted into the information fields in the Hosted Services by Customer, by Named Users, or by SHE Software on Customer's behalf.
Evaluation: a trial use of the Hosted Services of a limited duration by a limited number of Named Users as defined in an Order Form governed by these Terms of Use.
Fees: the fees payable to SHE Software, as described in a subscription Order Form of the Hosted Services placed by Customer.
Hosting Services: the cloud-based services that SHE Software provides the Customer to access and use the Software, either on a subscription use basis for a Fee, or as part of a no-cost evaluation or pilot, as expressly described in an online Order Form issued by SHE Software and accepted by Customer.
Initial Term: the initial term specified in the Order Form.
Maintenance and Support: any error corrections, updates and upgrades that SHE Software may provide with respect to the Software and Hosting Services and related technical Support, all as described in clause 3.3 below.
Named Users: those specific employees, business partners, agents and independent contractors or other authorized third parties (up to the total number of Named User licenses specified in the Order Form) who are authorized by Customer to use the Software and Services under these Terms of Use.
Order Form: the ordering document governed by these Terms of Use along with SHE Software’s confirmatory acknowledgement that provides Customer login credentials and other information about the Hosted Services.
Renewal Period: the renewal period, if any, set out in the Order Form.
SHE Software: shall mean alternatively, SHE Software Limited, a company incorporated and registered in Scotland (company number SC164270) whose registered office is at Prism House, 2 Rankine Avenue, East Kilbride, Glasgow, Scotland G75 0QF; SHE Software, Inc. located at 222 S. Riverside Plaza, 15th Floor, Chicago, IL 60606; SHE Software Limited located at 4/24 Porter Drive, Havelock North, New Zealand.
Software: SHE Software's proprietary software, including but not limited to, “Assure Response” and any successor software products along with any error corrections, updates, upgrades, modifications and enhancements made generally available by SHE Software as provided to Customer under these Terms of Use.  
Virus: any routine or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.


2.       Commencement and Duration

2.1 These Terms of Use shall commence on the Contract Start Date and shall continue unless and until either party to these Terms of Use (“Party” or collectively “Parties”) gives the other Party written notice to terminate as set forth in clause 2.2. For avoidance of doubt, Customer shall not be entitled to terminate a an Order Form for convenience during the Initial Term. Additionally, if the Hosted Services renew, Customer shall not be entitled to terminate for convenience during the Renewal Period. Either party maintains its rights to terminate for cause under clause 12 at the Initial Term or any Renewal Term.

2.2 Unless the Order Form involves a trial or evaluation, the Hosted Services shall automatically renew at the end of the Initial Term or any Renewal Term for additional annual subscription periods, provided neither Party gives the other party 90 days’ prior written notice of non-renewal of the Hosted Services prior to the expiration date of the Initial or any Renewal Term. In the event Customer continues using the Hosted Services following the Evaluation Period specified in the Order Form, such evaluation use by Customer shall be automatically converted to a full use subscription at SHE Software’s then applicable list price, and SHE Software is thereby entitled to invoice Customer for the Fees as described below in clause 7.


3.       SHE Software’s Obligations

3.1 Use and Access Rights. During the Initial Term or any Renewal Term (or for the limited Evaluation Period) SHE Software hereby grants to Customer a limited, worldwide, revocable, non-exclusive, non-sublicensable, non-assignable and non-transferable license to (i) allow Named Users (up to the total number of Named User entitlements specified in the Order Form) to access and use the Hosted Services solely for Customer’s internal business operations in accordance with these Terms of Use, (ii) access the Support portal and online ticketing system to raise Support tickets, and (iii) use Maintenance and Support documentation, user guides and other written materials, solely in connection with Customer's use of the Hosted Services.

3.2 Software and Services Warranty.

(a) To the extent applicable, Customer warrants that its acceptance and adoption of these Terms of Use indicates that the approving party has all power and authority necessary to bind Customer to these Terms of Use and is authorized to enter into the Order Form(s) for the Hosted Services contemplated hereunder.
(b) SHE Software warrants that (i) the Hosted Services will operate substantially in accordance with the published documentation (as may be updated from time to time as the Hosted Services are updated) and (ii) that any consulting Services will be performed by SHE Software or its agents in a good and workmanlike manner consistent with applicable industry practices.
(c) The warranty in clause 3.2(b)(i) shall not apply to the extent of any non-conformance is caused by use of the Hosted Services contrary to SHE Software's instructions or as a result of any modification or alteration of the Hosted Services (including with respect to any configuration or implementation performed by Customer or any other third party) by any party other than SHE Software or SHE Software's duly authorized contractors or agents. If the Hosted Services do not conform to the foregoing clause 3.2(b)(i) warranty, SHE Software will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance in the Hosted Services promptly, or provide Customer with an substantially equivalent alternative means of accomplishing the same level of performance.
(d) Except for the warranties described in clause 3.2(b), SHE Software:
(ii) DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice;
(e) All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded by and disclaimed from these Terms of Use.
(f) These Terms of Use shall not prevent SHE Software from entering into similar agreements with any third parties.
3.3 Service Levels; Maintenance and Support.
(a) SHE Software shall use commercially reasonable endeavours to make the Hosted Services available at least 99.9% of the time on average over any 30-day calendar period. For avoidance of doubt, SHE Software will periodically take the Hosted Services site(s) down to refresh and update the Software and perform other operations to optimize the Hosted Services (“Maintenance Event”), and such any downtime resulting from a Maintenance Event will not be included in calculating the availability percentage. Customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by parties directly managed by SHE Software), or outages or disruptions attributable in whole or in part to Force Majeure Events in accordance with clause 13 below, will not be included in calculating the availability percentage.
(b) For avoidance of doubt, ‘availability’ is defined as the ability of the Hosted Services and related systems providing the Software to respond to a legitimately formatted request by a Named User at the hosting facility’s Internet endpoint. Local issues affecting access to the Hosted Services from within the Customer network or general issues affecting Internet traffic and which are outside of SHE Software reasonable control do not constitute unavailability of the Hosted Services.
(c) Maintenance and Support (“Support”) include all regularly scheduled error corrections, Software updates and upgrades limited to improvements of features described in published documentation, or the Order Form. To the extent Customer enters into a statement of work for separate professional services, support for additional features developed by the SHE Software may be purchased separately at SHE Software's then current rates.
(d) SHE Software shall maintain and update the Software operating in the Hosted Services. Should the Customer determine that the Hosted Services includes a defect, the Customer may at any time file an error report. During Maintenance Event periods, SHE Software may, at its discretion, upgrade versions, install error corrections and apply patches to the Hosted Service systems. SHE Software shall use all reasonable endeavours to avoid unscheduled downtime during any Hosted Services maintenance.
(e) SHE Software shall provide the Customer with technical Support services. Customer personnel named as Customer Support Representatives (“CSRs”) in the relevant Order Form shall be authorized to contact SHE Software for technical Support services. SHE Software shall provide technical Support services only to that specified set of CSRs. SHE Software shall provide SHE Software Support Engineers (“SSEs”) named in the Order Form who are assigned to the Customer account. The SSEs shall handle Support calls from the Customer's CSRs and shall maintain continuity of knowledge of the Customer account history. SHE Software shall use commercially reasonable endeavours to provide continuity of SSEs.
(f) SHE Software technical Support shall accept voicemail and e-mail incident submittal from CSRs 24 hours a day, 7 days a week. SHE Software technical Support call centre shall accept calls for English language telephone support during Normal Business Hours (e.g. 8.30 am to 5.00 pm local UK time, each Business Day). SHE Software shall use commercially reasonable endeavours to process Support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to the Customer during the same Business Day, with a typical daytime response within 4 hours (depending on the severity of the issue).
(g) SHE Software shall provide monitoring of the Hosting Services 24 hours a day, seven days a week. SHE Software shall notify the CSRs of Maintenance Events that may affect the availability of the Hosting Services via the portal.

3.4 Evaluation.

(a) Evaluation Product.   From time to time, Customer may wish to evaluate the Hosted Services on a temporary basis for non-commercial use ("Evaluation"). If SHE Software agrees to such evaluation and conditioned on Customer's compliance with these Terms of Use, SHE Software grants to Customer during the Evaluation Period (as defined below), a cost-free, non-sublicensable, non-transferable, non-assignable and nonexclusive, revocable license to use the Hosted Services, solely at the location identified in writing by Customer and solely for Customer's internal evaluation of the Hosted Services. Customer may only grant access to the Hosted Services to employees, contractors, agents or consultants who are bound to confidentiality and non-use obligations no less protective of SHE Software's proprietary rights than these Terms of Use. Notwithstanding anything to the contrary as stated in these Terms of Use, all worldwide right, title and interest to the Hosted Services, and all intellectual property rights in and to them, are and will remain the exclusive property of SHE Software and its suppliers.
(b) Evaluation Period. Unless otherwise agreed to by the parties in writing or terminated earlier in accordance with these Terms of Use, an evaluation shall commence upon granting of access to the Hosted Services and continue up to thirty (30) days thereafter ("Evaluation Period"). Upon the expiration or termination of the Evaluation Period, (i) all licenses granted under clause 3.4 for such evaluation will cease, and (ii) Customer will immediately stop using the Hosted Services, and destroy or erase any intangible copies of any documentation or written materials (including user access credentials), and certify in a writing signed by an officer of Customer and delivered to SHE Software that all such materials or documentation have been returned, destroyed or erased.
(c) Additional Evaluation Terms. Notwithstanding anything to the contrary as contained in these Terms of Use, Customer acknowledges and agrees that the Hosted Services are provided for evaluation "AS-IS", and SHE Software and its suppliers make no representations or warranties of any kind, express or implied, with respect to the evaluation use of the Hosted Services, including, without limitation, any implied warranties of merchantability, title, fitness for a particular purpose, informational content, system integration, enjoyment, noninfringement or any other warranties arising out of course of dealing, usage or trade.


4.       Customer’s Use of Services and Obligations

4.1 Customer shall:
(a) provide SHE Software with all necessary co-operation in relation to these Terms of Use, and with all necessary access to information as may be required by SHE Software in order to perform the Hosted Services, including but not limited to Customer Data, security access information and software interfaces to Customer's other business applications;
(b) provide personnel assistance as may be reasonably requested by SHE Software from time to time. Customer shall use commercially reasonable endeavours to ensure continuity of its personnel assigned to these Terms of Use;
(c) comply with all applicable laws and regulations with respect to its activities under these Terms of Use;
(d) obtain and maintain all necessary licenses, consents, and permissions necessary for SHE Software, its contractors and agents to perform their obligations related to the Hosted Services under these Terms of Use, including without limitation securing all necessary consents and permissions to use Customer Data (including any personal information therein);
(e) ensure that its network and systems comply with the relevant specifications provided by SHE Software from time to time;
(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to SHE Software’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer's network connections or telecommunications links or caused by the internet;
(g) use reasonable endeavours to prevent any unauthorized access to, or use of, the Hosted Services and notify SHE Software promptly of any such unauthorized use or access;
(h) provide front-line support to Named Users who is not a designated CSR; and
(i) carry out all other Customer responsibilities set out in these Terms of Use in a timely and efficient manner. In the event of any delays in Customer's provision of such assistance as agreed by the Parties, SHE Software may adjust any timetable or delivery schedule set out in these Terms of Use as reasonably necessary.

4.2 In relation to Named Users, Customer shall ensure that:

(a) the maximum number of Named Users that Customer authorizes to use and access the Hosted Services does not exceed the total number of Named User subscription licenses specified in the Order Form, and that any Named User license is used only by the relevant individual Named User unless that license has been reassigned in its entirety to another individual Named User (in which event the previous Named User shall no longer have any right to access or use the Hosted Services); to the extent Customer exceeds the quantity of Named Users specified in an Order Form outside of any Evaluation, SHE Software reserves the right to immediately invoice Customer for a pro-rated portion of the remaining period of the Initial Term or any Renewal Term then in effect, at the same per Named User Fee specified in the Order Form, and will synchronize the Fees for all Named Users then in use as of the effective date of any Renewal Term.
(b) each Named User keeps the log-in details of their account confidential and regularly changes any passwords; and
(c) each Named User complies with all applicable laws and regulations and the terms of these Terms of Use as appropriate. Customer agrees to accept all responsibility and assumes all liability for any violation of these Terms of Use by its Named Users or by anyone else who improperly access the Hosted Services using a Named User log-in credential.

4.3 Customer shall not:

(a) knowingly introduce, distribute or transmit any Virus, or load, store, manage, process or use any material in or through the Hosted Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; depicts sexually explicit images; promotes violence; is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or uses the Hosted Services in a manner that is otherwise illegal or causes damage or injury to any person or property; SHE Software reserves the right, without liability or prejudice to its other rights under these Terms of Use, to disable Customer’s access to the Hosted Services if Customer or its Named User breach any of the provisions of this clause 4.3.
(b) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Hosted Services, except to the extent expressly set out in these Terms of Use or as may be expressly allowed by any applicable law; or
(c) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Hosted Services including the Software, except as may be expressly allowed by any applicable law; or
(d) access all or any part of the Hosted Services in order to build a product or service which competes with the Hosted Services; or
(e) use the Hosted Services to provide any service to third parties except with the prior written consent of SHE Software; or
(f) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Hosted Services available to any third party, except Named Users, or
(g) subject to clause 15.3, transfer, novate or otherwise assign, temporarily or permanently, any of its rights under these Terms of Use, or
(h) attempt to obtain, or assist third parties in obtaining, unlawful or unauthorized access to the Hosted Services, other than as provided under this clause 4.3.


5.        Changes to Services

Customer acknowledges that SHE Software may amend, modify, enhance and update the Hosted Services and its published documentation at its sole discretion from time to time without notice to or requiring any consent from Customer, provided that the updated Hosted shall continue to comply with the warranty in clause 3.2(b).

6.       Customer Data and Data Protection

6.1 Customer shall own all right, title and interest in and to all of the Customer Data, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
6.2 Both Parties agree to comply with all applicable privacy and data protection laws, as well as other applicable regulations and directives, in a Party’s creation, collection, receipt, access, use, storage, disposal and disclosure of Customer Data that includes personal data.
6.3 Customer agrees that Customer shall not load, process, manage or store on the Hosted Services any sensitive categories of personal data as defined under Article 9 of the EU General Data Protection Regulation, or any sensitive financial information (such as credit card numbers), health records or information about a specific person’s medical condition, any data or information that include national identifiers (such as, without limitation, a U.S based social security number or a UK based National Insurance number), or any trade secret, product design document or any intellectual property or material that Customer regards as sensitive, of value, or proprietary. To the extent Customer loads any data onto the Hosted Services related to a health or safety event involving a specific, identifiable individual, Customer will mask, de-identify and anonymize the name and specific characteristics of the person affected so as to avoid entering any data that could be construed as a health record under applicable laws. Customer assumes all liability for any damages or claims that result from a violation of this clause 6.3.
6.4 In the event of any loss or damage to Customer Data, Customer's sole and exclusive remedy shall be for SHE Software to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by SHE Software as a standard feature of its Hosted Services. SHE Software shall not otherwise be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties managed by and under the control of SHE Software to perform services related to Customer Data maintenance and back-up).
6.5 Customer shall be entitled to unlimited data storage relating to its use of the Hosted Services, subject to a “reasonable use” policy, which SHE Software may enforce at its sole reasonable discretion.


7.        Charges and Payment

7.1 Fees. Except in connection with an Evaluation, Customer shall pay the specific Fees set out in the Order Form for its use of the Hosted Services. Except as otherwise set forth in an Order Form, all Fees are due and payable annually in advance on the Contract Start Date, and as of the anniversary of the Contract Start Date annually thereafter. The prices, features, and options of the Hosted Services depend on the specific “Subscription Plan” selected by Customer as well as any changes or additional usage initiated by Customer. SHE Software does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
7.3 Recurring Fees. When a Subscription Plan is purchased, Customer must provide accurate and complete information for a valid payment method authorized by Customer for use by SHE Software. Customer will be billed for the selected Subscription Plan through the payment method provided, such as a Customer-issued purchase order governed by these Terms of Use, a credit card or by way of PayPal. Customer must promptly notify SHE Software of any change related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN, CUSTOMER AUTHORIZES SUPPLIER OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON AN ANNUAL, RECURRING BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN FEES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE HOSTED SERVICES. The Authorization continues through the Initial Term and any Renewal Term until these Terms of Use are properly terminated by either Party or Customer issues a notice of non-renewal as set forth in clause 2.2 of these Terms of Use.  
7.4 Late Fees & Collection Costs. If SHE Software does not receive the Fees from the Customer, Customer shall pay all Fee amounts due upon demand. Any amount not paid when due will be subject to late fee charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by SHE Software to collect any amount that is not paid when due. SHE Software may accept payment in any amount without prejudice to SHE Software’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to SHE Software may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from SHE Software. SHE Software reserves the right to suspend the Hosted Services with or without notice for any Customer account that remain unpaid.
7.5 Tax Responsibility. In connection with Customer’s use of the Hosted Services, Customer shall be responsible for the payment of all applicable taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction (collectively, “Taxes”) and the interest and penalties thereon, excluding taxes based on SHE Software’s net income. Where the responsibility to remit Taxes falls upon SHE Software, the Taxes will be added to the payment and payable by Customer to SHE Software at the same time as the Fee payment. Taxes shall not be deducted from the payments to SHE Software, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, SHE Software receives and retains an amount equal to the amount it would have otherwise received had no such deductions or withholdings been made. Customer hereby confirms that SHE Software can rely on the name and address set forth in its registration for a Subscription Plan as being the place of supply for tax calculation purposes. SHE Software’s and Customer’s obligations under this Section 7.5 (Tax Responsibility) shall survive the termination or expiration of these Terms of Use.


8.       Proprietary Rights

8.1 Customer acknowledges and agrees that SHE Software and/or its licensors own all intellectual property rights in and to the Hosted Services, Software, SHE Software Confidential Information and all documentation and other materials used and accessed by Customer in connection with the Hosted Services.
8.2 Any ideas, suggestions, modifications and the like made by Customer with respect to the Hosted Service will be the property of SHE Software regardless of whether SHE Software chooses to exercise its rights to incorporate such ideas, suggestions or modifications into the Hosted Service. Customer represents and warrants that it has all rights and permissions necessary to grant SHE Software access to such information and to transfer Customer Data as contemplated herein.
8.3 Other than as expressly set forth in these Terms of Use, no license or other rights in or to the Hosted Services, or to the Software and intellectual property rights thereto are granted to Customer, and all such licenses and rights are hereby expressly reserved.
8.4 As between Customer and SHE Software, Customer owns all right, title and interest in and to Customer Data and Customer Confidential Information.
8.5 This clause 8 shall survive termination of these Terms of Use, however arising.


9.       Confidentiality

9.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under these Terms of Use. A Party's Confidential Information shall not include information that: (a) is or becomes publicly known other than through any act or omission of the receiving Party; or (b) was in the receiving Party's lawful possession before the disclosure; or (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party without use of or reference to disclosing Party’s Confidential Information, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each Party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than in connection with the Hosted Services, or as expressly permitted by these Terms of Use.
9.3 Each Party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms of Use.
9.4 If the receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing Party in breach of this clause 9, the disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
9.5 SHE Software shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.6 This clause 9 shall survive termination of these Terms of Use, however arising.


10.     Indemnity

10.1 SHE Software shall defend Customer, its officers, directors and employees against any claim that the Hosted Services directly infringe any patent effective as of the Contract Start Date or any copyright, trademark or for any claim that the Hosted Services misappropriate any trade secret, and shall indemnify Customer for any amounts finally awarded against Customer, and shall pay any settlement of such claims that SHE Software concludes, provided that: (a) SHE Software is given prompt notice of any such claim; (b) Customer provides reasonable co-operation to SHE Software in the defense and settlement of such claim, at the SHE Software's expense; and (c) SHE Software is given sole authority to defend or settle the claim.
10.2 In the event that the Hosted Services are held to or believed by SHE Software to infringe, SHE Software at its discretion, will have the option to, (i) obtain for Customer the right to continue using the Hosted Services, (ii) replace or modify the Hosted Services so that they becomes non-infringing or, if such remedies are not reasonably available, (iii) terminate these Terms of Use and Customer’s use of the Hosted Services without any further liability to Customer.
10.3 The foregoing indemnity obligations do not apply with respect to the Hosted Services or portions or components thereof, (i) that are modified by any party other than SHE Software or its authorized agents after provisioning by SHE Software, (ii) combined with other products, processes or materials, where the alleged infringement relates to such combination, (iii) where Customer continues allegedly infringing activity after being notified thereof and modifications that would have avoided the alleged infringement have been made available to Customer, or (iv) where Customers’ use of such Hosted Services is not strictly in accordance with these Terms of Use.
10.4 This clause 10 state Customer’s sole and exclusive rights and remedies, and SHE Software’s entire obligations and liability, for any claim of infringement involving the Hosted Services.
10.5 Customer will defend, indemnify and hold SHE Software harmless against (i) any claims, damages settlements and expenses (including attorneys’ fees) excluded from SHE Software’s indemnity obligations in clause 10.3 above, and (ii) any claims involving, related to or arising out of Customer Data.
10.6 This clause 10 shall survive termination of these Terms of Use, however arising.


11.      Limitation of Liability

11.3 Nothing in these Terms of Use excludes the liability of either Party for death or personal injury caused by such Party’s negligence, or for fraud or fraudulent misrepresentation.
11.4 This clause 11 sets out the entire liability of SHE Software (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer: (a) arising under or in connection with these Terms of Use; (b) in respect of any use made or conclusions drawn by Customer using the Hosted Services; and (c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with these Terms of Use.
11.5 This clause 11 shall survive termination of these Terms of Use, however arising.


12.     Termination

12.1 Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate these Terms of Use without liability to the other if the other Party:
(a) commits a material breach of this Terms of Use and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that Party being notified in writing of the breach; or
(b) becomes insolvent;
(c) is generally unable to pay, or fails to pay, its debts as they become due;
(d) files, or has field against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law (provided such termination shall not be effective however if the terminating party otherwise is instructed by a bankruptcy court);
(e) makes or seeks to make a general assignment for the benefit of its creditors;
(f) applies for, or consents to the appointment of a trustee, receiver or custodian for a substantial part of its property or business;
(g) ceases, or threatens to cease, to trade as an ongoing business; or
(h) takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.

12.2 Without prejudice to any other rights or remedies to which the Parties may be entitled, SHE Software may terminate these Terms of Use immediately without liability to Customer if there is a change of control of Customer involving a direct competitor of SHE Software. Change of control shall mean: (i) a consolidation or merger of Customer with or into any other person in competition with SHE Software, (ii) a sale or other disposition of all or a substantial part of the properties and assets of Customer in a single transaction or in a series of related transactions with a competitor of SHE Software, or (iii) the acquisition of “beneficial ownership” by any “person” or “group”, who is a competitor of SHE Software, of voting securities of Customer representing more than 50% of the voting power of all outstanding voting securities of Customer. In addition, for the purposes of this definition, the terms “person,” “group” and “beneficial owner” shall have the meanings set forth in the U.S. Securities Exchange Act of 1934, as amended, whether or not applicable.

12.3 On termination of these Terms of Use for any reason:

(a) any active Order Form shall automatically terminate, and Customer use and access rights shall immediately cease;
(b) each Party shall return and make no further use of any equipment, property, materials, Confidential Information, and other items (and all copies of them) belonging to the other Party;
(c) SHE Software shall destroy or otherwise dispose of any Customer Data in its possession unless SHE Software receives, no later than ten (10) business days after the effective date of termination of the Hosted Services, a written request for the delivery to Customer of the then most recent back-up of Customer Data. SHE Software shall use reasonable commercial endeavours to deliver the back-up to Customer within 30 days of its receipt of such a written request, provided that Customer has, at that time, paid all fees and charges outstanding and payable at and resulting from termination (whether or not due at the date of termination).  Customer shall pay all reasonable expenses incurred by SHE Software in returning or disposing of Customer Data; and
(d) the accrued rights of the Parties as of the effective date of termination, or the continuation of an provisions that survive termination, shall not be affected or prejudiced.


13.      Force Majeure

Neither Party shall be in breach of these Terms of Use nor liable for delay in performing, or failure to perform, any of its obligations under these Terms of Use if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of SHE Software or any other party), failure of a utility service or transport or telecommunications network, act of God, epidemics, pandemics, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Event”). In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance resulting from a Force Majeure Event continues for six (6) consecutive months, the Party not affected may terminate these Terms of Use by giving 30 days' written notice to the other Party. Nothing herein this clause 13 shall limit or affect Customer’s payment obligations defined in any Order Form.


14.      Notices

14.1 Any notice required to be given under these Terms of Use shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out in these Terms of Use, or such other address as may have been notified by that Party for such purposes.
14.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
14.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable. A notice given under these Terms of Use is not valid if sent by e-mail and, for the avoidance of doubt, "writing" shall not include e-mail for the purposes of this clause.


15.      Miscellaneous and General

15.1 Nothing in these Terms of Use is intended to, or shall be deemed to, establish any partnership or joint venture, an employer/employee or agency relationship between any of the Parties, the agent of another party, nor authorize any Party to make or enter into any commitments for or on behalf of any other Party.
15.2 No variation of these Terms of Use shall be effective unless it is in writing and signed by the Parties (or their authorized representatives).
15.3 These Terms of Use are for the sole benefit of the Parties hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms of Use.
15.4 SHE Software may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms of Use.
15.5 If any provision (or part of a provision) of these Terms of Use is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
15.6 A waiver of any right under these Terms of Use is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.
15.7 Unless specifically provided otherwise, rights arising under these Terms of Use are cumulative and do not exclude rights provided by law.
15.8 These Terms of Use and any documents referred to in it constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of these Terms of Use.
15.9 Governing Law and Exclusive Jurisdiction. These Terms of Use are governed by, and construed in accordance with: (1) for a Customer contracting with SHE Software, Inc., the laws of the State of Illinois, United States excluding its conflict of laws provisions; (2) for a Customer contracting with SHE Software Limited, UK, the laws and courts of England and Wales; (3) for a Customer contracting with SHE Software Limited, New Zealand, the laws of New Zealand; or (4) for a Customer contracting with SHE Software Limited PTY, Australia, the laws of New South Wales. The parties irrevocably agree that (i) the applicable state and federal courts located in Cook County, Illinois shall have exclusive jurisdiction to resolve any dispute arising under the laws of the State of Illinois; (ii) the court located in England and Wales shall exclusive jurisdiction to resolve any dispute arising under the laws of England and Wales, and (iii) courts located in New Zealand shall have exclusive jurisdiction to resolve any dispute arising under the laws of New Zealand, and (iv) courts located in New South Wales, Australia shall have exclusive jurisdiction to resolve and dispute arising under the laws of New South Wales.
15.10 Injunctive Relief. Notwithstanding the foregoing, Customer acknowledges that, in the event of any imminent or irreparable harm to it, the rights of SHE Software under these Terms of Use may not be adequately protected by remedies available to it at law, and therefore Customer agrees that SHE Software shall be entitled to seek injunctive relief in addition to all legal remedies for any breach of these Terms of Use. SHE Software shall be entitled to immediately refer any disputes regarding SHE Software’s Confidential Information or intellectual property rights to a court of competent jurisdiction at any time.