These Terms of Service apply to all Humanity® Websites, www.Humanity.com and www.ShiftPlanning.com (“Websites”) owned and operated by TimeClock Plus, LLC (“TCP”). Our websites includes links to other sites whose Terms of Service may differ from those of Humanity®. These Terms of Service do not apply to other companies’ or organizations’ sites to which we link.
Before using any of Humanity®’s services, you are required to read, understand and agree to these terms. You may only create an account after reading and accepting these terms. The Humanity® Website is composed of numerous Websites, and Web Pages, operated by TimeClock Plus, LLC (“TCP”) (“Humanity”, “we”, “us”) and/or its affiliates. Collectively these will be noted as Humanity®.
The Humanity® Website use is offered to you on the condition that you accept these Terms of Service, without modification of the terms, conditions, and notices herein. Your use of the Website, constitutes your acceptance of all these terms, conditions, and notices.
Humanity reserves the right to block direct competitors from accessing the software and/or services provided by Humanity, except with Humanity’s prior express written consent. The software and services also may not be accessed for the exclusive purpose of monitoring performance, functionality, or for any other competitive review or purposes.
These Terms of Service were last updated September 18th, 2020. Humanity reserves the right to periodically change these Terms of Service upon written notice to each Humanity customer (herein referred to as “Customer”), and such modification will automatically become effective in the next service term upon acceptance of the change notice.
1. Access to Software Services from Humanity
a) Access to Services and Support. Subject to all the terms and conditions of this Agreement, Humanity will provide Customer with a non-exclusive, non-transferable, non-sublicensable right to access to the software services described in the applicable Order Form (the “Services”) during the Term, through the Internet, solely for Customer’s use in accordance with Humanity’s published documentation located at helpcenter.humanity.com (“Documentation”). This Agreement and the access provided hereunder are non-transferable, except as expressly provided herein. Humanity retains all rights not expressly granted to the Customer pursuant to this Agreement.
b) Restriction and Responsibilities. Customer will not, (nor through any third party under its control) be permitted to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, Documentation or data related to the Humanity Services ; modify, translate, or create derivative works based on the Services; license, sublicense, assign, rent, lease, lend, sell, distribute, publish, transfer, or otherwise make available the Services or Documentation to any third party; use the Services or Documentation in any manner or for any purpose that violates any intellectual property right or other right of any person; or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations, including but not limited to any European GDPR privacy, intellectual property, consumer and child protection, obscenity or defamation laws. Customer will cooperate with Humanity in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Humanity may reasonably request. Customer will also cooperate with Humanity in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact” or “Administrator”). Customer may change the individual designated as Primary Contact or Administrator at any time by providing written notice to Humanity. Customer hereby agrees to indemnify and hold harmless Humanity against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
c) Modification of Services. Humanity will not materially decrease the overall functionality of the Services.
d) Future Functionality. Customer agrees that Customer’s subscription to the Service and acceptance of this Agreement are not contingent on the delivery of any future functionality or features unless set out in any Statements of Work agreed to by Customer and Humanity.
e) Custom Functionality/Integrations/ Statement of Work. Customer agrees that any instance of Humanity requiring a third party integration or custom feature request may require a separate Statement of Work agreement to be signed by both parties and whose terms may be governed outside or be in addition to these posted Terms of Service.
2. Humanity Responsibilities.
a) Service Levels. Subject to the terms and conditions of this Agreement, Humanity shall use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven days a week, except for: (i) planned downtime; and (ii) unavailability caused by circumstances beyond Humanity’s control, including but not limited to acts of God, internet service provider failures or delays, and denial of service attacks. Subject to the terms thereof, Humanity will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit A, listed below.
b) Information Security and Data Protection. Humanity will implement and maintain reasonable administrative, physical and technical Information Security protocols and policies that are designed to prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any of Customer’s data, including any employee-specific data supplied by Customer (“Customer Data”) as may be held or accessed by Humanity in its software. Humanity agrees that it will not sell, disclose, transfer, share or rent any Customer Data under any circumstances except, in each case, to an Affiliate of Humanity, as required,in connection with the Services. Additional information about Company security practices can be found at www.humanity.com/security.
c) Software Access. Access, if any, to Customer’s computer, telecommunication or other information systems (“Systems”) is hereby granted solely to provide the Services described in this Agreement and is limited to those specific systems, time periods, and personnel as are reasonably needed to effect the purpose of this Agreement. Access is subject to business control and information protection policies, standards, and guidelines as may be provided by Customer. Without limiting the foregoing, Humanity warrants to Customer that it has adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Customer’s systems.
d) Other Access to Account. Customer gives Humanity permission to view data and take actions within Customer’s Humanity account for the purpose of delivering the Services, including support, maintenance, and onboarding, as well as the technical administration of the Services, like backing up the client’s data. Humanity may also perform actions within Customer’s Humanity account at Customer’s request and in doing so, the Customer hereby grants Humanity the limited permission to view, create, and modify Customer Data in Customer’s Humanity account to fulfill the request, including but not limited to employee information, report building and general account configurations based on the Customer’s desired use case. Other possible instances where Humanity would access a Customer’s account include: viewing or acting within an administrator, scheduler, supervisor or employee’s Humanity account to reproduce an issue or bug, creating or uploading employee information in the onboarding process, merging sources or tags, exporting data to produce a custom report, etc.
e) GDPR/European Economic Union Customers. To the extent Humanity processes Customer Data subject to the EU General Data Protection Regulation (“GDPR”), the terms of the Humanity GDPR Data Processing Addendum located at www.Humanity.com/DPA (“DPA”), which is hereby incorporated by reference, shall apply and the parties agree to comply with such terms.Customers are free to download and sign a copy of the agreement made available on Humanity’s website and to return a countersigned copy to Humanity.
f) California Consumer Privacy Act (CCPA). Humanity will provide the Services and process any Customer Data as a for-profit corporation solely on behalf of Customer in accordance with the Agreement. Humanity will not retain, use, sell, or disclose Customer Data for any other purpose other than for the specific purpose of providing the Services under the Agreement, except as otherwise permitted by law.
g) Future Changes Related to Changes in Data Protection Regulations. If any variation to the Agreement between the Parties is required to maintain compliance with changes to applicable data protection laws, the Parties will negotiate necessary variations to this Agreement in good faith to address changes.
3. Customer Responsibilities.
a) General. Customer is responsible and liable for all uses of the Service resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is also responsible for all acts and omissions of employees and agents of Customer that are authorized to use the software (“Authorized Users”) and any act or omission by an Authorized User that would constitute a breach of this Agreement if performed by Customer. Customer shall make commercially reasonable attempts to make any and all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
b) Customer Content & Compliance with Laws. Customer represents, warrants and covenants that Customer and its employees will not upload or produce content or use the Humanity Service in a manner that (i) infringes or violates the intellectual property rights or property rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or, (iv) contains a virus or other harmful computer file, or program. Further, Customer represents, warrants and covenants that Customer, in performance of its obligations and/or exercise of its rights pursuant to this Agreement, will comply with all applicable laws and regulations. Customer further acknowledges that Customer is responsible for all employee activity in connection with the Services and that fraudulent, abusive, or otherwise illegal activity may be grounds for termination of this Agreement.
4. Fees and Payment.
a) Fees. Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. All invoices shall be paid in United States Dollars. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Each party shall be solely responsible for its own taxes, including, without limitation, income, franchise, property, sales, use and value added taxes, assessments, other similar tax-like charges, and tax-related surcharges which may be required or imposed by any federal, state, or local taxing authority.Billing Inquiries should be directed to billing@Humanity.com. In the event Customer payment of undisputed Fees to Humanity remains unpaid more than thirty (30) days after an invoice becomes due, Humanity reserves the right to suspend access to the software for non-payment. Except as expressly set forth in this Agreement, all Fees are non-cancellable and non-refundable.
b) Renewal Service Term Fees. In the event that Customer exceeds any User Limit identified in an applicable Order Form or designated billing interval, upon renewal a prorated increase in fees for the prorated increase in usage will be automatically assessed and applied to the invoice for the subsequent service term (each a “Renewal Service Term”). Humanity reserves the right to change the Renewal Service Term fees or applicable charges and to institute new charges and fees at the end of any Service Term, upon thirty (30) days prior notice to Customer, unless additional agreements between Customer and Humanity apply. Without limiting the foregoing, any Renewal Service Term in which subscription volume or products for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior Term’s per-unit pricing.
c) Invoices. All Fees will be invoiced upon the effective date of the applicable Order Form, unless otherwise identified in the Order Form. Unless otherwise specified in an Order Form, Humanity will bill through either a credit card or via an invoice (under certain conditions only, as pre-approved by Humanity) and full payment for invoices issued must be received by Humanity thirty (30) days after the electronic delivery date of the invoice.
d) Billing/Refunds/Credits. Humanity services are billed in advance for a varying set of intervals and are non-refundable. You, the account administrator may decide to cancel your Humanity account at any time with the knowledge that there are no refunds or credits provided upon cancellation unless additional agreements or terms are negotiated with Humanity prior to your subscription start period. If you are not the account administrator, please transfer the account ownership rights to yourself before requesting a cancellation. You can initiate the ownership transfer request from the Application by initiating the live chat, alternatively you can call (888) 973 6030 or email us at firstname.lastname@example.org. Any service credits due to a Customer, if applicable, will be applied on the next invoice against amounts then due. If there are no future invoices expected, Humanity will issue a payment to the Customer for credits due. Regardless of your billing cycle, Humanity provides no refunds or credits for a full or partial subscription service period, refunds for unutilized subscription service period, subscription plan upgrade/downgrade refunds or credit balances. Humanity reserves the right to suspend or terminate your account or this agreement for any security reasons or prohibited activity. You understand and agree that there shall be no refund, credit or exchange for any Humanity service, unutilized subscription, implementation fees, set up fees or any content or data associated with your account. Enterprise customers with Master Service Agreements and/or Specialized SaaS Order Forms are subject to the refund policy as defined in their respective contracts.
e) Taxes. Any amounts payable hereunder are exclusive of, and Customer shall be responsible for all taxes, including general sales tax, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Humanity, unless Customer provides to Humanity a valid tax-exempt certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Humanity on account thereof.
5. Intellectual Property.
a) Humanity Intellectual Property. Except as expressly set forth in this Agreement, Humanity will own and retain all right, title and interest in and to (a) the Services, including all software, improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed as part of any professional services (as set forth in an Order Form or Statement of Work mutually executed by both parties hereto that references this Agreement) or support, and (c) all intellectual property rights related to all of the foregoing. This Agreement does not grant Customer (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the Humanity trademarks, logos, domain names, or other brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
b) Customer Data. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
c) Product Improvement Suggestions. If Humanity Customer or any of its employees or contractors provide Humanity with any ideas, product improvement suggestion(s), enhancement requests, feedback and/or recommendation(s) regarding the Services, including without limitation, new and/or improved features or functionality relating thereto (”Feedback”), Humanity is free to use and disclose such Feedback without any obligation to Customer or such employees or contractors and to incorporate into any existing or future products or features.
6. Confidential Information.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
7. Warranty and Disclaimer
a) Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b) General Warranties. Humanity warrants to each Customer that Services under this Agreement are provided in compliance with all applicable federal, state and local laws. Humanity will render the Services and any professional services in a professional and workmanlike manner. Humanity represents and warrants that (i) it has right, title and interest in the Services in order to provide the Services pursuant to the terms and conditions of this Agreement, and (ii) its execution and performance of this Agreement will not violate or conflict with any obligation it has to any third party.
c) Third Party Services/Integration Partners. The foregoing warranty does not apply to, and Humanity strictly disclaims all warranties with respect to connections and/or links to non-embedded services, products and professional services that are provided and sold to Customer by third parties which interoperate with or are used in connection with the Service, including, without limitation, via application programming interfaces (collectively, “Third Party Services”). Any exchange of data or other interaction between Customer and Third Party Services is solely between customer and the operator of such Third Party Services, and is governed by customer’s agreement with such Third Party Services provider.
d) SMS Notifications. SMS (text messaging) is an optional component of the Communication Utilities offered as an additional feature by the Humanity® Website. Additional charges may be incurred by the user from your individual mobile service provider, Humanity® is NOT responsible for these charges. Humanity® will not be held liable for any SMS errors, delays, missed, deleted or late received messages.
8. Mutual Indemnification.
a) Humanity Indemnification. Humanity will indemnify, defend, and hold Customer harmless from and against all un-Affiliated third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such un-Affiliated third parties pursuant to such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim or allegation that the Services infringe or misappropriate such third party’s patent, trademark, trade secret, copyright, or other intellectual property rights. Humanity’s obligations pursuant to this Section 8a will not apply, however, to the extent that such claim is caused by: (i) Customer’s use of the Services other than in accordance with the terms of this Agreement; (ii) Customer’s failure to use or implement corrections or enhancements to the Services made available free of charge to Customer by Humanity, (iii) customized portions or components of the Services designed and provided to Customer accordance with Customer specifications, (iv) modification of the Services that have not been performed by or on behalf of Humanity, and/or (v) combination of the Services with other products, services, processes or materials not supplied by Humanity (including, without limitation, Customer Data). “Affiliate” means any entity controlling, controlled by, or under common control with a party hereto, where “control” means the ownership of more than fifty percent (50%) of the voting securities in such entity.
b) Customer Indemnification. Customer will indemnify, defend, and hold Humanity harmless from and against all un-Affiliated third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such un-Affiliated third parties resulting from such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from any third-party claim or allegation that the Customer Data and/or Customer’s provision thereof to Humanity violates such third-party’s patent, trademark, trade secret, copyright, or other intellectual property or proprietary right(s), or any claim that Customer has violated any applicable law(s), regulation(s), or the rights of any employee or candidate.
c) Indemnification Procedure. As a condition to the indemnifying party’s obligations pursuant to this Section 8, the indemnified party must: (i) promptly notify the indemnifying party in writing of all indemnifiable claims; (ii) provide the indemnifying party with reasonable assistance to settle or defend such claims, at the indemnifying party’s own expense; and (iii) grant to the indemnifying party the right to control the defense and/or settlement of such claims, at the indemnifying party’s own expense; provided, however, that: (1) the failure to so notify, and/or provide assistance will only relieve the indemnifying party of its obligation to the indemnified party to the extent that the indemnifying party is prejudiced thereby; (2) the indemnifying party will not, without the indemnified party’s consent (such consent not to be unreasonably withheld or delayed), agree to any settlement that: (x) makes any admission of wrongdoing on behalf of the indemnified party; or (y) consents to any injunction against the indemnified party (except an injunction relating solely to the indemnified party’s continued use of any infringing Service); and (3) subject to the foregoing, the indemnified party will have the right, at its expense, to participate in any indemnifiable claim and to be represented by legal counsel of its choosing, but will have no right to settle a claim without the indemnifying party’s written consent.
d) Sole Remedy. THIS SECTION 8d SETS FORTH CUSTOMER’S SOLE REMEDIES AND HUMANITY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitation of Liability.
a) Limitation of Damages. EXCEPT WITH RESPECT TO BREACHES OF SECTION 6 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
b) Limitation of Liability. IN NO EVENT WILL EITHER PARTY OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY CLAIMS, SUITS, LIABILITY OR DAMAGES ARISING OUT OF OR BASED UPON THIS AGREEMENT, IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO HUMANITY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT.
c) Limitation of Claims. Any claim or cause of action arising out of or related to use of the Service or to the Agreement must be filed within one (1) year after such claim or cause of action arose, or be forever waived.
10. Term and Termination.
a) Term. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
b) Account Suspension. Notwithstanding anything to the contrary in this Agreement, Humanity may impose limitations on bandwidth usage, and/or temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if Humanity reasonably determines that (i) there is a threat to or attack on any of the Services; (ii) Customer’s or any Authorized User’s use of the Services abuses, disrupts or poses a security risk to the Services or to any other customer or vendor of Humanity; or (iii) Customer is in breach of its obligation to pay any Fees due under the Agreement (collectively, “Service Suspension(s)”). Prior to suspension of service pursuant to sub-Section (iii) above, Humanity will provide Customer with notice of non-payment and the amount due (“Non-payment Notice”). Unless the amount has been paid, Humanity reserves the right to suspend Customer access to the Services fourteen (14) calendar days after such Non-payment Notice. Humanity will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
c) Termination. In addition to any other express termination right set forth in this Agreement: i. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches any material provision of this Agreement, including, without limitation, by Humanity, in the event of any breach by Customer of Section 3 above, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or ii. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, and such proceeding is not dismissed within one hundred twenty (120) days of institution; (B) makes or seeks to make a general assignment for the benefit of its creditors; or (C) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business without a successor.
d) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of and/or access to the Service(s). No expiration or termination will affect Customer’s obligation to pay all Fees that have become due before the effective date of such expiration or termination, or entitle Customer to any refund.
e) Return of Data. Prior to termination, and no more than once during the Term, Humanity will make all Customer Data available to Customer for electronic retrieval in .csv format upon request prior to the expiration of the Term solely to the extent that Customer has paid all undisputed then due Fees.
f) Survival. Sections 4, 6, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement will survive the expiration or termination of this Agreement.
a) Entire Agreement. This Agreement and each Addendum, Exhibit, Attachment, Amendment and Schedule, as so designated, set forth the entire agreement and understanding of the parties relating to the subject matter contained herein, and merges all prior discussions and agreements, both oral and written, between the parties. Each party agrees that use of pre-printed forms, including, but not limited to email, purchase orders, acknowledgements or invoices, is for convenience only and all pre-printed terms and conditions stated thereon, except as specifically set forth in this Agreement, are void and of no effect.In the event of any conflict between the Terms of Service, the DPA and/or the Order Form, the following order of precedence will apply (in descending order): (1) the DPA, (2) the Terms of Service and (3) each Order Form. Notwithstanding the foregoing, in the event that an Order Form references a specific provision of these Terms of Service and states that it supersedes such provision, such Order Form will take precedence only with respect to such specific provision.
b) Amendment/Waivers. No waiver of any term or condition is valid unless in writing and signed by authorized representatives of both parties, and will be limited to the specific situation for which it is given. No amendment or modification to this Agreement shall be valid unless set forth in writing and signed by authorized representatives of both parties.
c) Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and to: Humanity.com, Inc. 2121 N. California Blvd. Suite 290, Walnut Creek, CA 94596, Email: email@example.com Customer: Billing Contact identified in the Order Form
d) Publicity. Humanity may use Customer name or logo in its marketing materials or on its website for the sole purpose of marketing the Services. Use of Customer’s name and logo will be revocable at any time by Customer. Humanity may contact Customer to provide a Case Study based on the improvements derived as a result of using Humanity and to provide a reference for other prospective clients based on their positive experience.
e) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control.
f) Independent Contractors. The parties shall be deemed for all purposes to be independent contractors. Nothing in this Agreement or in the activities contemplated by the parties pursuant to this Agreement shall be deemed to create an agency, partnership, employment or joint venture relationship between the parties. Each party shall be deemed to be acting solely on its own behalf and, except as expressly stated, neither party shall have the right or authority to bind or incur any liability or obligation of any kind on behalf of the other. Provider will be solely responsible for all materials and work until Accepted by Client, and Client will have no direction (except in the results to be obtained) or control of Provider, or any person employed by or contracted for by Provider.
g) Severance;Headings. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is found to violate a law, it will be severed from the rest of the Agreement and ignored and a new provision deemed added to this Agreement to accomplish to the extent possible, the intent of the parties as evidenced by the provision so severed. The headings used in this Agreement have no legal effect.
h) Dispute Resolution. Before initiating a lawsuit against the other party relating to a dispute or claim herein, Client and Provider agree to first work in good faith to resolve between themselves such dispute or claim arising out of or relating to this Agreement. To this end, either party may request that each party designate an officer or other management employee with authority to bind the party to meet to resolve the dispute or claim. During this resolution process, each party will honor the other’s reasonable requests for non-privileged and relevant information. This paragraph will not apply if: (i) the expiration of the statute of limitations for a cause of action is imminent; or (ii) injunctive or other equitable relief is necessary to mitigate damages.
i) Binding Arbitration. If the parties do not reach such solution within a period of sixty (60) days, then, upon notice by either party to the other, all disputes shall be finally settled by binding arbitration taking place in San Francisco, California. Each of the parties to this Agreement hereby agrees and consents to such venue and waives any objection thereto. The arbitration shall be conducted in English, on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. The prevailing party shall be entitled to an award of reasonable attorney fees. An award of arbitration may be confirmed in a court of competent jurisdiction sitting in San Francisco County, California.
j) Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law.
k) Class Action Waiver. EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE.
l) Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, each party may assign this Agreement by operation of law or otherwise in the context of a merger or stock or asset sale, without such prior written consent. Any attempted assignment contrary to the preceding will be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of each party’s permitted successors and assigns.
m) Compliance with Laws. Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
n) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
SUPPORT AND SERVICE LEVEL AGREEMENT (SSLA)
This Support and Service Level Agreement (this “SSLA”) provides the support and service level terms and conditions for the Humanity.com (“Company”) SOFTWARE.
Company will provide Technical Support to Customer via Company’s in-application chat service, telephone and electronic mail on a 24/7/365 basis (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling 888-973-6030 or any time by emailing firstname.lastname@example.org. Company shall respond to and resolve all support requests and correct all errors reported by Customer in accordance with the required times specified below.
Customer shall classify its requests for error corrections in accordance with the descriptions set forth in the “Problem Resolution Times” chart below (each a “Support Request”), subject to the validation and agreement by the Company , when contacting Company’s helpdesk. Response and Resolution times will be measured from the time Company receives a Support Request until the respective times Company has (i) responded to, in the case of response time and (ii) Resolved such Support Request, in the case of Resolution time. “Resolve” (including “Resolved,” “Resolution,” and correlative capitalized terms) means that, as to any error, Company has provided Customer the corresponding error correction and Customer has confirmed such correction and its acceptance thereof. Company shall respond to and Resolve all errors within the times provided in the “Problem Resolution Times” chart below based on the severity of the error.
2. Problem Resolution Times
|Severity||Description||Required Response Time||Required Resolution Time|
|Blocker||All or a material portion of the Services are unusable or inaccessible by Customer or its users||1 hour||4 hours|
|Critical||Any error affecting a critical function, any material degradation of the services (including, without limitation, incorrect schedules in the Services), widespread access interruptions; security breach, loss or perceived loss of data and where there is no acceptable workaround that is acceptable to Customer||3 hours||1 business day|
|Major||Any other error that materially affects Customer’s workflows but where there is an acceptable workaround for the Customer||8 hours||3 days- 1 development cycle|
|Minor||Any error that impacts that impacts any number of users but for which a workaround acceptable to Customer exists||2 business days||N/A|
|Deferred||No user impact||5 business days||N/A|
In the event Company fails to meet the response or Resolution commitments above for any Blocker, Critical or Major errors, Customer shall be entitled to receive a service credit of 5% of the of the Monthly Subscription Fee (as defined in Customer’s Order Form) for each such failure.
Notwithstanding anything to the contrary in the Agreement that permits a “cure period” for any material breach of the Agreement, if the Company fails to meet the response and Resolution commitments above (a) for any Blocker error two (2) or more times in a rolling twelve (12) month period, (b) for any Critical or Major error four (4) or more times in a rolling twelve (12) month period, or (c) for any combination of Blocker, Critical or Major errors four (4) or more times in a rolling three (3) month period, Customer may terminate this Agreement on written notice to Company with no liability, obligation, or penalty to Customer by reason of such termination. In the event of such termination, Company shall refund to Customer any a prorated portion of any pre-paid fees for the period after the effective date of termination.
3. Customer Responsibility
Customer is responsible for ensuring that its hardware and software used to access the Services meet the minimum requirements specified by Humanity. Minimum requirements include use of a currently supported browser (Chrome is recommended) and a high-speed internet connection. Customizations, installation, or professional services are not included in this SLA. Humanity’s Support team must be able to reproduce an error in order to resolve it. Customers agree to cooperate and work closely with Humanity Support to reproduce errors, including conducting diagnostic or troubleshooting activities as reasonably requested and as appropriate.
4. Software Updates and Upgrades
Customer will be provided with, and agrees to accept, all updates, upgrades, enhancements, and/or new releases to the Humanity Software that are generally provided to all Humanity customers.
5. Support Response Guidelines
When submitting a support request Customer must (i) provide Humanity with all information necessary for Humanity to address the request, and (ii) respond promptly with any information reasonably requested by Humanity to clarify the support request. On receipt of the support request, Humanity will respond to the request as detailed in Section 1 of this SSLA, and determine the appropriate priority level based on the classifications specified below, and input from Customer. The terms used in the table below are defined as follows: “Action Plan” means a workaround or action plan for addressing the problem; and “Issue” means a failure of the Humanity Services to operate in accordance with its then-current technical or user documentation or specifications located at: helpcentre.humanity.com (“Documentation”).
6. Availability Commitment
The Services shall be available 99.9%, measured monthly, excluding Planned Maintenance or Emergency Maintenance as described below. If Customer requires in writing maintenance specific to Customer outside of Planned Maintenance period, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. “Downtime” shall be deemed to occur any time there is a material performance degradation or inoperability of the Services, in whole or in part, except for circumstances that are expressly excluded from downtime under this calculation as described elsewhere in this SSLA; and “Availability” of the Services shall mean the percentage of the time in a calendar month during which no downtime of the Services occurs. Downtime shall begin to accrue as soon as Customer (with notice to Company, which may be by email or telephone to Company’s helpdesk) recognizes that downtime is taking place or Company otherwise becomes aware of downtime, and continues until the availability of the Services is restored.
If the Availability of the Services is less than 99.9% in any calendar month, Customer shall be entitled to receive a service credit of 5% of the Monthly Subscription Fee for each 1% by which Availability is less than 99.9%. The total service credits under this SSLA shall not exceed 25% of the Monthly Service Fee. “Monthly Subscription Fee” means the then-applicable annual Subscription Fee under this Agreement divided by 12. The parties acknowledge and agree that the service credits under this SSLA are a reasonable estimate of the diminished value of the Services that may arise from downtime of the Services or failure of Company to meet error response and resolution commitments, which would be impossible or very difficult to accurately estimate; (b) is not intended as, and should not be deemed to be, a penalty or forfeiture. Any service credits will, at Customer’s sole option, be credited or set off against any fees or other charges payable to Company under this Agreement or be payable to Customer upon demand. Any services credits provided hereunder are in addition to and cumulative of any other remedies Customer may have under this Agreement, at law or in equity.
Notwithstanding anything to the contrary in the Agreement that permits a “cure period” for any material breach of the Agreement, if the actual Availability of the Services is less than (a) 99.9% in any (i) two (2) consecutive calendar months or (ii) three (3) calendar months in a rolling twelve (12) month period, or (b) 95% in any single calendar month, then, in addition to all other remedies available to Customer, Customer may terminate this Agreement on written notice to Company with no liability, obligation, or penalty to Customer by reason of such termination. In the event of such termination, Company shall refund to Customer any a prorated portion of any pre-paid fees for the period after the effective date of termination.
Planned Maintenance. Planned Maintenance shall mean any maintenance or upgrades to the Service in which respect of which Client shall be notified a minimum 72 hours in advance, and that will be performed during a standard maintenance window during 12:01am to 3am Pacific Standard Time. Only Planned Maintenance performed strictly in compliance with the foregoing will be excluded from downtime for purposes of this SSLA.
Emergency Maintenance. Emergency Maintenance refers to any corrective action intended to remedy conditions likely to cause severe Service degradation, as designated by Humanity in its reasonable discretion. Emergency Maintenance may include but is not limited to actions intended to address hardware or software failures or viruses/worms. Humanity will exercise reasonable efforts to inform client in advance before interrupting the Service for Emergency Maintenance, but such notice is not guaranteed and failure thereof is not considered an unplanned outage. Only Emergency Maintenance performed strictly in compliance with the foregoing will be excluded from downtime for purposes of this SSLA.
Service Monitoring & Outage Notifications. Humanity maintains on a separate network a status page which provides real time updates on Service status, including history of previous outages: http://status.Humanity.com