- Acceptance of Terms
1.1 By accessing the Sheffield Barry website located at www.SheffieldBarry.com, including all associated content and software applications, the user (“You”) agree to be bound by these Terms Of Service (“TOS”).
1.2 The TOS may be revised or modified from time to time and all subscription renewals and purchases will be subject to the TOS in effect at the time of purchase or renewal. You may review the most current version of the TOS at any time at www.SheffieldBarry.com/terms.
- License and Restrictions
2.1 For the Term set forth below and subject to these TOS, Sheffield Barry grants You a limited, non-transferable, non-exclusive right to access and use our proprietary software products and related documentation (“Software”) for Your internal business or personal use only (collectively referred to as the “Service”).
2.2 Nothing contained in these TOS shall transfer or be deemed to transfer to You any rights in or to the Service other than those specifically stated herein. Nothing in these TOS obligates Sheffield Barry to deliver or make available any copies of computer programs or code from the Software to You, whether in object code or source code form.
2.3 You will not (i) copy, reproduce, alter, modify, or create derivative works from the Service; (ii) rent, lease, distribute, or resell the Service, or use the Service as the basis for developing a competitive solution (or contract with a third party to do so); or (iii) remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Service. You will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations.
2.4 You will not nor will You authorize or encourage any third party to (i) use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Sheffield Barry; (ii) resell, duplicate, reproduce or exploit any part of the Service without Our express written permission; or (iii) use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service.
2.5 The license granted to You includes basic support at no additional charge. Basic support includes commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (which Sheffield Barry shall schedule to the extent practicable during weekend evening hours Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), vendor failures or delays, or denial of service attacks.
- Data Security
3.1 Sheffield Barry shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your data. Sheffield Barry shall not disclose Your data except as compelled by law or as expressly permitted in writing by You, or access Your data except to provide the Service and prevent or address service or technical problems, or at Your request in connection with support matters.
3.2 In the event Sheffield Barry discovers that the security of your data has been breached, we will promptly notify You of the nature and scope of such breach and will immediately initiate remediation actions consistent with industry standards.
3.3 You allow Sheffield Barry to use your data in anonymized format for improving our services.
- Payment Terms
4.1 Your Service subscription renews automatically on your annual anniversary date until cancelled. You may cancel your subscription at any time by emailing support@SheffieldBarry.com.
4.2 Payment can be made online for immediate access to the Service. If offline payment is requested, payment is due within fifteen (15) days from the date of the invoice.
4.3 All fees are exclusive of taxes or duties imposed by governing authorities. You are responsible for payment of all such taxes or duties.
4.4 Sheffield Barry may at any time, upon notice required by applicable law, change the price of Your subscription or any part thereof, or institute new charges or fees. New Pricing will be effective as of the start of any renewal terms. If You do not agree to any such price changes, You must cancel your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies.
- Intellectual Property Rights
5.1 You acknowledge that Sheffield Barry owns all right, title and interest in and to the Software, Service and any modifications and enhancements thereof, including without limitation all intellectual property rights, and such rights are protected by U.S. and international intellectual property laws. Sheffield Barry also retains all right, title and interest to transactional and performance data related to use of the Service that Sheffield Barry may collect, use and disclose for our business purposes (including software use optimization and product marketing) provided that such use does not reveal any of Your Confidential Information.
- Acknowledgements and Disclaimer of Warranty
6.1 You accept and acknowledge that Sheffield Barry does not exercise any control over Your specific human resource practices implemented or Your decisions related to employment, promotion, advancement, termination or compensation of any employee when using the Software or the Service. You assume full responsibility for any and all decisions with respect to Your use of the Service.
6.2 You further acknowledge that it is Your sole responsibility to monitor Your and Your employees’ compliance with all applicable laws when using the Service.
6.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE, PERFORMANCE AND RESULTS OF THE SERVICE RESIDES WITH YOU AND SHEFFIELD BARRY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE. SHEFFIELD BARRY DOES NOT WARRANT THAT OPERATION OF THE SERVICE IS ERROR-FREE OR THAT IT WILL BE UNINTERRUPTED.
- Indemnification and Limitation of Liability
7.1 You agree to hold harmless and indemnify Sheffield Barry, and our affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to Your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case Sheffield Barry will provide you with written notice of such claim, suit or action.
7.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR BREACH OF SECURITY WITH RESPECT TO YOUR DATA, LOSS OF BUSINESS INFORMATION AND OTHER PECUNIARY LOSS AND COSTS OR LEGAL EXPENSES) INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, ARISING FROM OR RELATED TO THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION THE SERVICE, OR USE THEREOF, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CLAIM OR DAMAGES UNDER THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID TO SHEFFIELD BARRY DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM OR DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING IS A REASONABLE ALLOCATION OF RISK.
- Term and Termination
8.1 The term of these TOS begins the day You first access the Service (“Effective Date”) and continues until all subscriptions granted in accordance with these TOS have expired or terminated (the “Term”). The prohibitions in Section 2.3 shall continue for ten (10) years after the Term.
8.2 You may cancel your subscription at any time by emailing support@SheffieldBarry.com. You will receive no refund upon cancellation.
8.3 Either party may terminate the TOS at any time in the event of a material breach by the other party that is not cured within thirty (30) days after receiving written notice of such breach. If these TOS are terminated due to your breach, you will receive no refund. If the cause of termination is our breach, You will receive a pro-rata refund of the fees paid calculated from the first day of the month after the termination takes effect.
If You purchase or subscribe to the Service, You agree that Shefield Barry may disclose the fact that You are Our customer. During the Term of this Agreement, and unless otherwise set forth, You grant Us the right to reference Your company name, along with Your logo, in marketing materials and on Our public web site until such time as Your use of the Service is discontinued. You may opt out of this disclosure if you provide us notification in writing (including email to support@SheffieldBarry.com) at any time.
10.1 Governing Law. These TOS are governed and construed under the laws of the United States of America without reference to its conflicts of laws principles. In no event shall these TOS be subject to the United Nations Convention on Contracts for the International Sale of Goods.
10.2 Arbitration. Any disputes that cannot be amicably resolved by the parties shall be resolved by final and binding arbitration before a single arbitrator under the rules of the International Arbitration Association. The arbitration will take place in San Francisco, California. Arbitration costs and reasonable documented attorneys’ costs of both parties will be borne by the losing party.
10.3 Assignment. Neither party shall assign this Agreement (or any of its rights hereunder), or delegate its obligations hereunder without the prior written consent of the other party. Any such assignment shall render this Agreement null and void.
10.4 Force Majeure. Under no circumstances shall Sheffield Barry be liable for failure to fulfill Our obligations under these TOS for delays in delivery due to acts of God, man-made or natural disasters, earthquakes, fire, riots, flood, material shortages, strikes, delays in transportation or inability to obtain labor or materials through its regular sources. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.
10.5 Severability. If any provision hereof should be held invalid, illegal or unenforceable in any jurisdiction, the parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the parties and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
10.6 Entire Agreement. These TOS as amended from time to time including any schedules and exhibits attached hereto and any executed Order Forms comprise the entire agreement between Sheffield Barry with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral.