Last Updated 21st May 2020
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.
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.
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.
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
2.2 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
3.2 Software and Services Warranty.
(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:
(i) PROVIDES ALL THE HOSTED SERVICES, SOFTWARE, ANY DOCUMENTATION AND OTHER PRODUCTS, MATERIALS AND INFORMATION ON AN “AS IS” BASIS, AND does not warrant that Customer’s use of the HOSTED SERVICES will be uninterrupted or error-free;
(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;
(iii) MAKES NO WARRANTY OF ANY KIND THAT THE HOSTED SERVICES, SOFTWARE, AND DOCUMENTATION WILL OPERATE WITHOUT INTERRUPTION, WILL ACHIEVE ANY INTENDED RESULT, WILL BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE SYSTEMS, OR THAT THE RESULTS OF CUSTOMER’S USE OF THE HOSTED SERVICES WILL MEET CUSTOMER’S REQUIREMENTS;
(iv) IS NOT RESPONSIBLE FOR ANY DELAYS, ONLINE DATA DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF CUSTOMER DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES THAT THE HOSTED SERVICES AND DOCUMENTATIONS MAY BE SUBJECT TO OTHER LIMITATIONS, DELAYS AND ISSUES INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES AND SYSTEMS.
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 status.shesoftware.com portal.
4. Customer’s Use of Services and Obligations
4.1 Customer shall:
(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
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
4.3 Customer shall not:
(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
(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.
7.2 No Refunds. CUSTOMER’S PAYMENTS ARE NON-CANCELLABLE AND NON-REFUNDABLE.
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.
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.
8.4 As between Customer and SHE Software, Customer owns all right, title and interest in and to Customer Data and Customer Confidential Information.
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.
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.
10.4 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.
11. Limitation of Liability
(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.
(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
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.
15. Miscellaneous and General