ShowUp Standard Terms of Service

January 29, 2021

Welcome to ShowUp, a product of Dovico Software Inc., incorporated under the laws of New Brunswick, Canada, herein d/b/a ShowUp.

Your use of ShowUp is subject to terms and conditions including these Standard Terms of Service, the Privacy Policy, the Cookie Policy, and the Data Processing Addendum (“DPA”) herein (the “Agreement”).

The Agreement applies to the purchase of ShowUp’s subscription service by you, the Customer. Please review the Agreement carefully. By accessing the Service, acquiring a free or paid User License for the Service, or otherwise using the Service, you are confirming that you have read, understand, and accept the Agreement.

The Agreement shall become effective on the earlier of the date you first access or use the Service and the date you establish an account. If the person accepting the Agreement is doing so on behalf of an organization, that person represents that he or she has the authority to bind the organization to the Agreement.

1. Description of the Service

ShowUp is an online system (the “System”) to empower an organization’s employees to improve corporate and community culture and engagement. The System prompts employee’s opinions on aspects of their environment, responses are analyzed, and metrics of cultural health are displayed. Employees may validate their inputs, and management may take actions to improve the culture.

“Service” refers to ShowUp’s proprietary culture improvement service for organizations including the website, app, proprietary system, and content.

“Customer” refers to a person or entity that purchases a subscription (in the form of User Licenses) to access the Service.

“Respondent” refers to an individual who submits Survey Responses.

“Survey Response” refers to an employee’s expressed opinions to relevant queries.

“Administrator” refers to a supervisor who manages steps in the System’s process. The Administrator:

a. Selects and prepares queries about the corporate environment;
b. Issues queries to Respondents to respond (Survey Responses); and
c. Assembles Survey Responses for aggregation, accumulation, and analysis to yield meaningful results from employees’ inputs.

The Administrator accesses Survey Responses solely to execute the above process after which the Survey Responses are deleted.

“Content” refers to audio, video, and textual material; survey queries, dashboard text, graphics and displays; and aggregated accumulated textual results.

“Users” refers to a Customer’s employees, affiliates, representatives, consultants, contractors, or agents who have been supplied with user identifications and passwords by the Customer, not to exceed the number of User Licenses purchased by the Customer.

“User Licenses” refers to the named user licenses that Customer has purchased.

You and your (upper or lower case) are convenient pronouns to refer to the Customer and by extension Users as the context permits.

2. Payments and Accounts

To enroll in the Service, the Administrator purchases a subscription account through ShowUp’s websites or app. Each Respondent joins the account by acquiring a User License with his or her name and a valid email address. You are responsible for maintaining the security of your login and password.

“Free Accounts” refer to free user licenses that may be issued for up to a maximum of ten users. If you wish to exceed ten users, you must convert the Free Account to a Paid Account.

“Paid Accounts” require paid user licenses that are paid monthly in advance by automatic recurring credit card payments. User Licenses may be purchased and cancelled at any time. Refunds are not provided for partial months.

All fees are exclusive of taxes, levies, or duties imposed by taxing authorities. You are responsible for paying any such applicable tax.

3. Cancellation and Termination

Paid Accounts will be considered terminated once all User Licenses have been canceled. Please be sure to print your reports from the Service prior to termination.

If you terminate the Service before the end of your currently paid-up month, your termination will take effect immediately and you will not be charged again. Any unused time in the last billing cycle is not pro- rated.

Free Accounts will be terminated without notice if they have been inactive for a period of six months.

If we reasonably determine that your use of the Service impairs the use of the Service, or is not in accordance with the Agreement, we shall reserve our right to suspend or terminate your Account if we are unable to resolve the problem.

4. Data Protection, Your Content and Your Personal Data

"Data Protection Laws" means all data protection and privacy laws applicable to the processing of Personal Data in the Service. “EU Data Protection Law” means the General Data Protection Regulation (EU) 2016/679 (“GDPR”). Please refer to our DPA for additional information about Data Protection laws.

“Personal Data” means any information relating to an identified or identifiable natural person. Examples are confidential personal data including (a) name and email address; (b) contact and financial information to register for an account; (c) messages sent to us by email, social media, or other means; (d) any information input into the system; and (e) Survey Responses.

“Your Content” refers to data (including Your Personal Data), information, graphics, or other material uploaded into the Service by you in the course of using the Service.

ShowUp shall comply with all applicable Data Protection Laws. ShowUp may collect, use, retain and disclose Personal Data solely for the purposes agreed in the Terms of Service and as set out in the Privacy Policy.

ShowUp shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Content. ShowUp shall not: (a) modify Your Content; (b) disclose Your Content except as compelled by law or as expressly permitted in writing by the you; or (c) access Your Content except to provide the Service and prevent or address service or technical problems, or at your request in connection with customer support matters.

Customer shall fully comply with all applicable Data Protection Laws and shall take all reasonable steps within Customer's power to ensure that Customer's Users, employees, contractors, and customers comply with all applicable Data Protection Laws.

For European Economic Area (“EEA”) or the United Kingdom (“UK”) Customers, your use of the Service includes processing Personal Data that is subject to the GDPR. Please review the DPA which provides binding rules for processing your Personal Data. ShowUp shall not access or transfer Your Personal Data outside of the EEA or UK unless: (a) instructed in writing by you; or (b) it is necessary to do so in order to diagnose or repair a technical problem with the Service. In the event of a technical problem with the Service requiring access to or transfer of Personal Data outside of the EEA, you hereby permit ShowUp to take such steps as are necessary to diagnose and repair the Service at ShowUp’s secure facility in Canada, a country for which the European Commission has made a positive finding of adequacy, to use Personal Data only to the extent necessary, and to delete the Personal Data from the Canadian facility once the authorized purpose is completed.

Customer is responsible for the accuracy, quality, integrity, legality, reliability, appropriateness or right to use any of Your Content.

5. Intellectual Property and Ownership of Content

“Intellectual Property Rights” refers to copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world.

You are granted a limited, non-exclusive, revocable, and non-transferable license to use the Service (including any associated software, Intellectual Property Rights and Confidential Information) as a User while your User License remains valid.

All Intellectual Property Rights and title to the Service (excluding any Customer or third party owned item) shall remain with ShowUp and/or its licensors. No interest or ownership in the Service, the Intellectual Property Rights, or otherwise is conveyed to the Customer under this Agreement. No right to copy, republish, modify, rent, sell assign, distribute, transfer, sublicense, reverse engineer, adapt, or translate the Service or create derivative works from the Service is granted to you. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that you have any right to obtain source code for the software comprised within the Service.

Your Content remains yours. We do not acquire any rights in Your Content and may not use Your Content except for the purpose of providing the Service to you and as otherwise authorized in the Agreement. Once Your Account is terminated, Your Content is returned or deleted and no longer retained or used by ShowUp unless authorized in writing by you.

The look and feel of the Service is copyright owned by ShowUp. You may not duplicate, copy, or reuse any portion of the HTML, CSS, JavaScript, or visual design elements without express written permission from ShowUp.

Subject to any rights granted under applicable law, disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Service is prohibited.

6. Confidentiality

“Confidential Information” refers to information in whatsoever form relating to ShowUp or the Customer, or the business, prospective business, finances, pricing structures, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of ShowUp or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Service, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information.

Confidential Information does not include information already known or subsequently received by a party (“Recipient”) without obligation of confidentiality, information which becomes publicly known through no wrongful act of Recipient and information independently developed by Recipient.

Recipient agrees that it will use Confidential Information of the other party’s (“Disclosing Party”) solely to fulfil its obligations under this Agreement and for no other purpose, and that it will hold all Confidential Information in the strictest confidence. To that end, Recipient will keep all Confidential Information in a secure place; take all necessary measures to prevent unauthorized access, use, reproduction, or disclosure thereof; and limit access to the Confidential Information only to individuals on a need-to-know basis.

Notwithstanding the above, the Recipient may disclose Confidential Information of the Disclosing Party to the extent such disclosure is required by applicable law, including pursuant to subpoena or other court order, provided that the Recipient Party gives the Disclosing Party prompt written notice of such requirement prior to such disclosure and cooperates with the Disclosing Party’s efforts to limit the scope of the information to be provided or to obtain an order protecting the information from public disclosure.

7. No Warranties

ShowUp provides the Service on an “as is” and “as available” basis. Your use of the Service is at your sole risk. ShowUp reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. If maintenance work is necessary and if the Service is not available for maintenance reasons, we will inform you in advance. ShowUp will not be responsible for network-related downtime or for downtime in which the Service cannot be accessed due to technical or other problems outside our area of influence, e.g., Force Majeure, or fault of third parties.

Except as expressly stated in this Agreement, all warranties, and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Service or that the functionality of the Service will meet the requirements of the Customer or that the Service will operate uninterrupted or error free. This paragraph shall survive the termination of this Agreement.

8. Acknowledgment of Beta Software.

Customer acknowledges and agrees that: (a) the Software is not an official product and has not been commercially released for sale by ShowUp; (b) the Software may not operate properly, be in final form or fully functional; (c) the Software may contain errors, design flaws or other problems; (d) it may not be possible to make the Software fully functional; (e) the information obtained using the Software may not be accurate and may not accurately correspond to information extracted from any database or other source; (f) use of the Software may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) ShowUp is under no obligation to release a commercial version of the Software; and (h) ShowUp has the right unilaterally to abandon development of the Software, at any time and without any obligation or liability to Customer. Customer acknowledges and agrees that it should not rely on the Software for any reason.

9. Indemnities

The Customer will indemnify, defend, and hold harmless ShowUp, its affiliates, subsidiaries, suppliers or agents from and against all liabilities, damages, costs and expenses (including settlement costs and reasonable legal costs) arising out of any claim by a third party against ShowUp and its affiliates, subsidiaries, suppliers or agents regarding: (a) Your Content; (b) Customer's use of the Service in breach of this Agreement; (c) Users' use of the Service in breach of this Agreement; or (d) the processing of Personal Data on behalf of, and in accordance with the instructions of the Customer.

ShowUp will indemnify, defend, and hold harmless the Customer from and against all liabilities, damages, costs, and expenses (including settlement costs and reasonable legal costs) arising out of any claim by a third party against Customer that use of ShowUp’s technology to provide the Service infringes the third party’s Intellectual Property Rights. In no event will ShowUp have any obligations or liability under this paragraph arising from: (a) use of the Service in a modified form or in combination with materials not furnished by ShowUp; and (b) any content, information, or data provided by the Customer, Users, or other third parties.

If ShowUp believes the Service infringe or may be alleged to infringe a third party's Intellectual Property Rights, then ShowUp may: (a) obtain the right for the Customer, at ShowUp's expense, to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that they no longer infringe. If ShowUp does not believe the options described in this section are commercially reasonable then ShowUp may suspend or terminate Customer's use of the affected Service (with a pro-rata refund of prepaid fees for the Service).

The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability requires prior written consent of the indemnifying party, not to be unreasonably withheld or delayed and (b) the other party may join in the defense with its own counsel at its own expense. The indemnities above are each party’s only remedy under this Agreement for any breach by the other party of a third party’s Intellectual Property Rights.

10. Limitation of liability

In no event shall either party be liable to the other whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any: (a) consequential loss; (b) pure economic loss; (c) losses incurred by any client of Customer or other third party; (d) loss of profits (whether categorised as direct or indirect loss); (e) losses arising from business interruption; (f) loss of business revenue, goodwill or anticipated savings; (g) losses whether or not occurring in the normal course of business, wasted management or staff time; and (h) loss or corruption of data; even if a party knew that such losses were possible or were reasonably foreseeable.

The aggregate liability of each party to the other (whether in contract, tort or otherwise) arising under or in connection with this Agreement is limited to the amount paid under this Agreement (excluding taxes) for the Service provided during the one-month period prior to the date on which the cause of action arose.

The limits on liability apply to the fullest extent permitted by applicable law, but do not apply to: (a) fraud, death or personal injury caused by any negligent act or omission or willful misconduct of ShowUp in connection with the provision of the Service; (b) any indemnities given under Section 8; or (c) a breach of the other party’s Intellectual Property Rights.

Each party acknowledges and agrees that in entering into this Agreement, each party had recourse to its own skill and judgement and has not relied on any representations made by the other party, or any employees or agents of the other party.

For the avoidance of doubt, in no instance will ShowUp be liable for any losses or damages you suffer if you use the Service in violation of this Agreement, regardless of whether we terminate or suspend your account due to such violation.

11. Modification of Agreement, Service and Prices

Agreement: We reserve the right to update and change the Agreement as posted on ShowUp’s website. Your use of the Service will be subject to the most current posted version of the Agreement at the time of such use.

Service: We reserve the right at any time to modify or discontinue, temporarily or permanently, any part of the Service with or without notice. Any new features that augment or enhance the current Service shall be subject to the Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

Prices: Prices are subject to change upon 30 days notice from us. Such notice may be provided at any time by posting the changes to the website or the Service itself.

ShowUp shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Service.

12. Notices

Any notice to you will be effective when we send it to the last email or physical address you gave us. Any notice to us will be effective when delivered to us along with a copy to: Attn. Legal Department at ShowUp’s address below.

13. Assignments

You may not assign any of your rights under this Agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.

14. Choice of Law

The laws of the Province of New Brunswick, except for conflict of laws rules, will apply to any dispute related to the Agreement or the Service. You acknowledge and agree that any dispute related to the Agreement or the Service itself will be decided by the Court of Queen’s Bench in Moncton, New Brunswick, and each party consents to personal jurisdiction in those courts.

15. Survivability

Even if this Agreement is terminated, the following sections will continue to apply: Intellectual Property Rights and Ownership of Content, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.

16. Severability

If it turns out that a section of these Terms is not enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.

17. Waiver

A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.

18. Notification of Security Incident

If we become aware of a security incident related to our systems or databases that contain personal information of you or your contacts, we will notify you if required by law. In that event, we will also provide you with information about that incident so that you can evaluate the consequences to you and any legal or regulatory requirements that may apply to you, unless we are prevented from doing so by legal, security or confidentiality obligations. Notifying you of a security incident or cooperating with you to respond to one will not be deemed an acknowledgement or assumption of any liability or fault of ShowUp for such incident.

19. Entire Agreement

This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior or contemporaneous agreements, representations, negotiations, and discussions between the parties concerning the subject matter hereof. All order forms, terms and conditions or any other documents provided by the Customer are specifically excluded from and do not form part of the terms of the Agreement.

20. Force Majeure

Neither party will be liable for any breach of this Agreement due to Force Majeure. However, this section will not apply to Customer’s payment obligations under this Agreement. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.

Questions about the Terms of Service, Privacy Policy or the Data Protection Addendum may be sent to: privacy@showup.com

or

Dovico Software Inc.
236 St George Street, Suite 210
Moncton, NB, Canada
E1C 1W1