Handrail Terms & Conditions of Use
These TERMS AND CONDITIONS OF USE (the "Terms and Conditions") govern the access to and use of the Handrail software provided by HANDRAIL, LLC ("Handrail").
The following terms shall have the meanings set forth below:
- "Authorized Users" shall mean any person specified as an authorized user by a Business Client.
- "Business Client" shall mean a business that purchases a business or enterprise subscription for the Software.
- "Client" shall mean a Business Client or Individual Client.
- "Fees" shall mean all fees and charges required to be paid by Client related to its chosen subscription level.
- "Individual Client" shall mean a person that purchases an individual subscription for the Software.
- "Software" shall mean the Handrail software program, including but not limited to any updates, modifications, fixes, content, Online services, and any other services that are provided through the Software, as well as the particular structure, content, and process used within the Software.
- "Terms" shall have the meaning set forth in Section 4.
- "User" shall mean any Authorized Users or Individual Client.
- "User Content" shall mean any documentation, text, graphics, proprietary information, or other materials uploaded or downloaded using the Software by a User.
2. License Terms.
- License – Individual Client. Subject to the payment of any required Fees, Handrail hereby grants to an Individual Client a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Software for such Individual Client's professional use, in the manner and with functions available under the Individual Client's particular subscription. A license for an Individual Client shall only be used by one individual person.
- License – Business Client. Subject to the payment of any required Fees, Handrail hereby grants to a Business Client and the number of Authorized Users authorized by such Business Client's subscription a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Software for such Business Client's professional use, in the manner and with the functions available under the Business Client's particular subscription.
- Prohibited Actions.
No User shall
- access or permit any third party to access any restricted sections of the Software except as permitted herein,
- modify, reverse engineer, decompile, or otherwise attempt to discover or copy the Software,
- create derivative works based on the Software,
- copy, frame, mirror, or reproduce any part or content of the Software,
- exploit any bugs to use the Software for any unauthorized purpose,
- use the Software to send unsolicited communications,
- use or access the Software in order to (A) build a competitive product or service, or (B) copy any features, functions or graphics of the Software,
- use the Software in any manner that could damage, disable, overburden, or impair the Software or another User's use of the Software;
- remove, obscure, or change any copyright, trademark, hyper-link, or other proprietary rights notices contained in the Software;
- submit User Content that is materially false or misleading;
- submit User Content that falsely states or implies that the content is approved of or endorsed by Handrail;
- use the Software to violate the security of any network or to transfer or store any illegal material in violation of any law, including intellectual property laws;
- misrepresent or otherwise disguise the source of User Content that you upload using the Service, including by using an alias, disguising the source IP address of the uploaded User Content, or similar processes and behaviors; or
- using the Software to steal or infringe upon any other Users' intellectual property rights in their User Content.
Access by Client to the Software will be subject to any operational constraints, restrictions and requirements of Handrail, in their sole discretion, that are now in effect or may be in effect in the future.
The initial term for the License will be for the term of the subscription purchased by the Client, subject to prior termination as provided herein. The term will automatically be renewed for additional renewal terms equal to the lesser of
- the length of the initial subscription term and
- one (1) year, unless either party delivers notice to the other party of its desire to terminate its subscription using the system provided by the Software for such purpose. Notwithstanding the foregoing, in the event either party defaults by failing to substantially perform any provision, term or condition hereof, the other party may provide notice specifying such default. If the defaulting party does not cure the default within thirty (30) days of receipt of such notice, the non-defaulting party will have the right to terminate the parties' relationship upon written notice. In addition, Handrail shall be authorized to suspend Client's (and any of its Authorized Users') access to the Software at any time that Client is delinquent in paying any Fees, without any right of setoff.
5. Fees and Payment.
Client will pay Handrail the Fees applicable to its subscription plan in the manner set forth in this Section 5. Handrail will invoice Client for the Fees for each billing period, in advance. All Fees are due upon receipt of the invoice. If Client has provided the required information and authorization, Handrail shall have the authority to initiate such payment on the date of invoice in accordance with the terms and conditions required by our authorized payment processors.
6. Restricted License; IP Ownership; Consent of Participants.
- Ownership of Software. Client acknowledges and agrees that Handrail is the owner of the Software and that its access to the Software is governed by these Terms and Conditions. Any, ideas, discoveries, inventions, patents, products, copyrightable works or other information (collectively the "Work Product") developed in whole or in part by Handrail in connection with providing services hereunder will be and remain the exclusive property of Handrail. Upon request, Client will execute all documents necessary to confirm or perfect the exclusive ownership of Handrail to such Work Product. The License and these Terms and Conditions do not constitute a sale of any title or interest in the Software or any content included therein. Such Software, the content, and all proprietary and intellectual property rights contained therein are expressly reserved to and shall remain the sole and exclusive property of Handrail. Notwithstanding the foregoing, Client shall retain all of its rights in any intellectual property it had developed prior to entering into this Agreement, as evidenced by pre-existing writings, though to the extent such pre-existing intellectual property is incorporated into the Work Product Client hereby grants Handrail a perpetual, royalty-free, non-exclusive license to use such pre-existing intellectual property in the Software.
- Ownership of User Content. Handrail acknowledges that the User Content, even though hosted under these Terms, is the property of the User who uploads, submits, displays, or otherwise makes it available using the Service. Notwithstanding the foregoing, Handrail reserves the right, and the Users hereby grant the right to Handrail, to
- use any Content to improve its software, processes, and Services,
- to display Content to other Users subject the terms of these Terms and as contemplated by the structure and purpose of the Services,
- as otherwise necessary to provide the Software and respond to requests by the Client or Users.
- Consent of Research Participants. The Software is used as a tool to assist in the collection of information from participants in research and focus group activities. Client shall be solely and completely responsible for obtaining any and all consents from the participants prior to using the Software in relation to such participants.
Client acknowledges that
- the Software contains trade secrets owned by Handrail, including the specific design, structure, and logic of the individual software programs, in addition to certain other information that is confidential and proprietary, and
- that the content accessed by the use of the Software is owned by, and may constitute the confidential and proprietary information of, Handrail (together, the "Confidential Information"). Client agrees to keep the Confidential Information in strict confidence and to use the Confidential Information solely pursuant to the terms of these Terms and Conditions, and shall not disclose such information to any third party except Client's agents, employees, and consultants on a need to know basis. Notwithstanding anything to the contrary herein, Client shall not be prohibited from using or disclosing information which becomes publicly available through no fault of Client or its employees or agents, or is already known to Client as shown by pre-dated written records. Client acknowledges that any breach of this section will cause irreparable harm to Handrail and shall entitle Handrail to avail itself of any and all remedies at law and/or equity, including but not limited to injunctive relief and specific performance, without any obligation to post bond.
8. Representations of Handrail.
Handrail endeavors to make the Software available at all reasonable times to Client. However, the Software is constantly being updated and modified. Therefore, Handrail provides the Software on an "as-is" basis and does not promise to provide any minimum level of service, uptime guaranty, or customer support to Client related to its use of the Software. HANDRAIL MAKES NO WARRANTIES REGARDING THE PERFORMANCE OR USE OF THE SOFTWARE, AND CLIENT RECEIVES NO OTHER WARRANTY WHETHER WRITTEN, ORAL, EXPRESSED, IMPLIED, OR STATUTORY EXCEPT AS STATED IN THESE TERMS AND CONDITIONS. IN PARTICULAR, HANDRAIL MAKES NO WARRANTY THAT CLIENT WILL RECEIVE ANY PARTICULAR BENEFIT, OBTAIN ANY CERTAIN FUNDS, OR OTHERWISE ACHIEVE ANY PARTICULAR OBJECTIVE DESIRED BY CLIENT. ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. ALL SOFTWARE IS PROVIDED ON AN "AS-IS" BASIS AND IS USED AT CLIENT'S OWN RISK. CLIENT SHALL NOT IN ANY CASE BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT OR OTHER SIMILAR DAMAGES INCURRED BY ANY PERSON, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH CLAIMS.
9. Limitation of Liability; Indemnity.
- Limitation of Liability. Client agrees that Handrail's liability, if any, arising out of or in connection with the access to, use of, or performance of the Software shall not exceed the amount previously paid by Client for use of the Software in the six (6) months prior to the actions giving rise to such liability.
- Indemnity. Client hereby agrees to indemnify and hold Handrail (and any employee, officer, director or affiliate of Handrail, each a "Company Person") harmless from any claim or demand made by any third party (including costs and attorneys' fees) due to or arising out of its access to or use of the Software, its violation of this agreement, its infringement of any intellectual property or other right of any person or entity, or for any content it posts through the Software (including claims related to defamation, invasion of privacy, or other violation of a person's rights). Your obligations under the foregoing indemnity may not be offset against any other claim you may have against Handrail or any Company Person. Client remains solely responsible for all content that it or its agents upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Software. Client agrees that the provisions in this section will survive any termination of the license of the Client's subscription. In addition, Client hereby releases any claims it may have against Handrail that are in any way related to the Software or its use thereof.
10. Arbitration, Governing Law, Remedies.
- Election of Arbitration. Any dispute, claim, or controversy arising out of or relating to the use of the Software or these Terms and Conditions, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Johnson County, Iowa before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- Applicable Law. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Iowa, exclusive of conflict or choice of law rules. The parties acknowledge that the License and Terms and Conditions evidence a transaction involving interstate commerce. Notwithstanding the foregoing with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this section shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
- No Class Actions. No class actions or similar process, and no joinder or consolidation of any claim with a claim of any other person or entity, shall be allowable in arbitration, without the written consent of both Client and Handrail. The arbitrator shall have no authority to entertain any claim on behalf of a class, group, person, or entity who is not a named party to the arbitration, nor shall any arbitrator have authority to make any award for the benefit of, or against, any class, group, person, or entity who is not a named party to the arbitration. In the event that there is a dispute about whether limiting arbitration to non-class proceedings, or to the named parties, is enforceable under applicable law, then that question shall be resolved by a court rather than by an arbitrator; and to the extent it is determined that resolution of a claim must proceed on a class basis, it shall so proceed in a court of competent jurisdiction rather than in arbitration.
- Arbitration Binding. ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER CLIENT NOR HANDRAIL WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION CLIENT AND HANDRAIL WILL NOT HAVE THE SAME RIGHTS THAT APPLY IN COURT, SUCH AS THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN PROCEEDINGS BROUGHT BY OTHERS SUCH AS CLASS ACTIONS OR SIMILAR PROCEEDINGS. IN ADDITION, THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL MAY ALSO BE LIMITED OR ELIMINATED IN ARBITRATION. ALL OF THESE JUDICIAL RIGHTS ARE WAIVED WITH RESPECT TO CLAIMS THAT CLIENT AND HANDRAIL ELECT TO ARBITRATE.
Client will not assign or transfer its rights hereunder or under the License without the prior written consent of Handrail, which will not be unreasonably withheld.
All notices shall be delivered by email, by certified mail, or by overnight national overnight courier. The email address for notices to Handrail shall be legal@HandrailUX.com. The email address for notice to Client or User shall be the email address associated with such Client or User's account created through the Software.
These Terms may be amended by Handrail at any time upon by providing notice to User of such amendment. Such amendment shall be effective the earlier of (a) acceptance by the Client or User or (b) fifteen (15) days after Handrail delivers notice of such amendment.