Last Revised May 26, 2021.
These Terms of Sale (“Terms”) govern the licensing terms relating to Rivera Sisters, LLC, a Florida limited liability company, d/b/a No More Mondays’ (“Licensor”), “In.Hand.Book” software (the “Software”), and all related documents. In the event of a conflict between these Terms, the Order Form (defined herein), the End User Licensing Agreement (“EULA”), and the Uptime Schedule (collectively, the “Agreement”), the order of priority shall be: (1) these Terms, (2) the EULA, (3) the Online Order Form, and (4) the Uptime Schedule. As used herein, “Order Form” shall mean the product selections made by you, the customer (“you” or “Customer”), on our website, https://inhandbook.com (the “Website”), the related information provided to you on the Website by Licensor related to such selections, and the information provided by you in connection with your purchase, including but not limited to the information input by you in the “Billing Details” section during checkout; “EULA” shall mean the agreement found at https://inhandbook.com/end-user-agreement; and Uptime Schedule shall mean the schedule found at https://inhandbook.com/uptime-schedule.
1. PURPOSE; No legal advice; customer data
1.1 The Product (defined herein), serves as a targeted HR solution, designed to assist customers in the migration of their employee handbooks (“Handbooks”) to a virtual platform, in an effort to promote ease of access by Customer’s employees (“End-Users”).
1.2 Handbooks and the information related to the Users (defined herein) of Customer obtained by Licensor to facilitate the Product (collectively, “Customer Data”) may be submitted to Licensor through a Customer designated representative (“Admin Users”), in conjunction with Article 3. Subject to these Terms, submission of Customer Data shall be at the sole risk of Customer. Nothing herein, in the Agreement or the Product shall be construed as legal advice by Licensor to any party, including but not limited to: i) the Customer, and/or ii) the Admin Users or the End-Users (“Users”), as to the accuracy or legal sufficiency of Customer Data. Customer assumes full responsibility for ensuring the accuracy and/or legal sufficiency of the Customer Data, and for obtaining all required consents for reproduction and disclosure. Without limitation of Article 10, by marking the box stating “I have read and agree to the website terms and conditions” on the Order Form, Customer thereby and hereby agrees to indemnify and hold Licensor harmless from all Damages (defined herein) and/or Actions (defined herein) relating to Customer’s obligations herein.
1.3 In no event shall Customer provide Licensor with Customer Data for which Customer has not obtained all requisite consent or authorization.
1.4 AS BETWEEN THE PARTIES, IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO: (A) INFORM ITS USERS OF RELEVANT CUSTOMER POLICIES, PRACTICES, AND SETTINGS THAT IMPACT THE PROCESSING OF THEIR DATA; (B) OBTAIN ALL RIGHTS, PERMISSIONS OR CONSENTS NECESSARY FOR THE LAWFUL USE OF ALL USER INFORMATION AND CUSTOMER DATA PROVIDED TO COMPANY; (C) ENSURE THE CONTINUED TRANSFER AND PROCESSING OF CUSTOMER DATA HEREUNDER IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH USERS RELATING TO THE FOREGOING.
2. LICENSE; Reservation of Ownership
2.1 Subject to these Terms, Licensor grants to Customer a nonexclusive, nontransferable, and non-sublicensable license to use the Software, in both its mobile and browser form, and all related documents (the “Product”).
2.2 Customer acknowledges that: i) as between the Parties, Licensor is the exclusive owner of all right, title, and interest in and to all Intellectual Property Rights (defined herein) relating to the Product; and ii) this is an agreement to license, and not a contract for sale. Licensor reserves all rights not specifically granted or licensed herein.
2.3 Licensor offers the Product “As Is” and in the most current version available on the Effective Date. At Licensor’s sole discretion, Licensor may release updates to provide additional features, including but not limited to, languages and emoticons. Releases by Licensor of additional applications or increases of functionality may be deemed by Licensor, at its sole discretion, to constitute an Additional Feature. Additional Features, if any, are NOT included with this purchase. Additional Features may be offered by Licensor at a later date and for such additional fees as may be established by Licensor, in Licensor’s sole discretion.
2.4 Customer shall maintain sole ownership of all Customer Data; provided however, for the Term, and such period of time thereafter as Licensor may permissibly (or shall be required to) retain Customer Data, Customer does hereby grant Licensor a non-exclusive, royalty free, license to access and use such data, subject to these Terms.
3. LICENSE PERIOD; fees; customer setup
3.1 The license period shall commence (“Initial Term”) on the Effective Date and continue until the “First Renewal” date set forth in the Order Form. The Initial Term and any successive terms shall automatically renew immediately prior to expiration, for periods of one (1) year each (a “Renewal Term”), unless terminated: i) by either party for convenience, upon provision of written notice not less than thirty (30) days in advance of the upcoming Renewal Term; or ii) in conjunction with the terms of Article 7. The Initial Term and any Renewal Terms shall be referred to as the “Term”. Recurring subscriptions will automatically renew until cancelled in accordance with these Terms. Failure to cancel a subscription may result in the automatic billing of any payment information we (or our third party payment provider) has on file for your account.
3.2 Annual license fees (“License Fees”) for the Initial Term, in the amounts set forth on the Order Form, shall be due and payable, in full, upon submission of the Order Form. License Fees for Renewal Terms shall be due on or before commencement of the applicable Renewal Term. License Fees shall be subject to an increase not to exceed ten percent (10%), per Renewal Term, without necessity of notice or consent. Without limitation of its other rights and remedies, failure of Customer to make payment of License Fees shall entitle Licensor to immediately suspend Customer’s use of the Product until all sums due are paid in full. You authorize Licensor, and/or the third party payment provider used by Licensor, to store your payment method and use it in connection with your use of the Product. To avoid interruption of your service, Licensor may participate in programs supported by Customer’s card provider to try to update payment information. Customer hereby authorizes Licensor to continue billing Customer’s account with the information that Licensor obtains.
3.3 Customer acknowledges that pricing for the Product is based upon the number of End-Users provided access to the Product. Handbooks; provided however, Customer shall have the option to purchase the right to publish additional Handbooks, at a price equal to the Installation Price, per Handbook, upon execution of a mutually agreeable addendum. Prior to use of the Product, Customer shall provide Licensor written notice of its Admin Users, who shall promptly thereafter deliver to Licensor: i) a list of all Customer End-Users, together with such related information as Licensor may reasonably require; and ii) virtual copies of Customer’s Handbooks, in a form acceptable to Licensor. Should the number of End-Users at any time exceed the End-Users set forth in the Order Form selection, Customer shall immediately provide written notice to Licensor, together with the pro-rata difference in License Fees, through the remainder of the Term.
3.4 Setup Fees, in the amount selected in the Order Form, shall be due and payable, in full, at the time of submission of the Order Form.
3.5 Customer shall timely pay Licensor all fees and costs required by the Agreement, including but not limited to License Fees and Setup Fees (“Fees”), annually, in advance. All sales are final. Except as expressly provided herein, the Fees are non-refundable, regardless of the reason for termination. All amounts due to Licensor but not paid in accordance with these Terms shall bear interest at the maximum rate allowable by law.
3.6 All Fees are exclusive of internet and data usage charges, and all applicable taxes or charges (“Third Party Charges”). Customer shall be solely responsible for payment of all Third Party Charges, as they are due.
3.7 Unless otherwise agreed by us in writing, payment of Fees shall be conducted through Licensor’s third party payment service provider, more fully described in Article 8. All purchases are paid in advance. Customer shall be responsible for any over-limit, non-sufficient funds, or other overdraft fees that Customer’s payment method may charge.
4. CUSTOMER representations
4.1 Customer represents that the person submitting the Order Form has all necessary power and requisite authority to obligate Customer to the obligations set forth in the Order Form and to bind Customer to these Terms.
4.2 Customer further represents, acknowledges and agrees that:
a. it shall be responsible for providing the required environment for the Software and for creation and proper upload of the Customer Data.
b. it shall be responsible for obtaining all required consents for use and/or publication of the Customer Data, including End-User consent.
c. it shall have all responsibility for ensuring the accuracy and legal sufficiency of the contents of all Customer Data.
d. it shall be responsible for downloading and installing the Software on a secure device and configuring its devices, as necessary.
e. it shall be responsible for promptly updating Licensor as to the number of End-Users with access to the Product.
f. it will use reasonable efforts to promote use of the Product by its Users.
g. it shall regularly update Customer Data to ensure compliance with: i) these Terms; and ii) all applicable law and regulation (the “Law”).
h. it shall ensure compliance with the EULA and the Law. Licensor shall not be responsible for the failure of Customer and/or any User to comply with: i) the Agreement; or ii) the Law.
i. it has evaluated and researched the Product and has determined independently that the Product is suited for Customer’s intended use. Customer assumes all responsibility and risk for selection and suitability.
j. it shall notify Licensor of Errors, in conformity with Article 5.
k. it has all necessary rights to use or reproduce all software, data and hardware used in connection with the Product and no use of the Product shall cause an infringement of the rights of any third party.
l. it shall not otherwise violate the EULA or these Terms.
5. SETUP; Support; patches
5.1 Customer shall cooperate with all Licensor requests with respect to setup of the Product. Licensor shall not be responsible for delays resulting from Customer’s failure to comply with this Section.
5.2 Customer may submit customer service related requests to Licensor at email@example.com, or such other method as Licensor may establish (“CS Inquiry”). Licensor shall use good faith efforts to respond to CS Inquiries within 48 business hours of receipt. Should Licensor, in its commercially reasonable discretion, determine additional action to be necessary, Licensor shall take reasonable steps to perform such action, within such time period as Licensor, in good faith, may deem necessary.
5.3 Subject to Section 5.5, Licensor shall use commercially reasonable efforts to ensure Product uptime in accordance with the Uptime Schedule. Anything to the contrary notwithstanding, Licensor retains sole discretion to determine the priority level of verified Errors (Critical, High, or Low).
5.4 Licensor may update the Product, from time to time, to correct any Errors and/or provide additional features (“Patches”). In such event, Customer shall be required to download the Patch to continue use of the Product, which download shall be at no cost to Customer. Internet data rates may apply. Licensor shall not be responsible for any claims or liabilities of any kind arising from Customer’s failure to install a Patch.
5.5 Customer shall promptly notify Licensor in writing upon Customer encountering any error or malfunction in the Software (an “Error”). In no event shall the foregoing notice be delivered in excess of five (5) days from the date of encounter. Following Licensor’s analysis of the reported Error, Licensor will: (i) notify Customer whether Licensor has verified the Error; (ii) if verified, Licensor will advise Customer of available remedies; and (iii) where a remedy is not available after repeated efforts, the Parties will work in good faith to find a mutually agreeable alternative. Licensor reserves the right to determine the disposition of all Errors.
6. END USER LICENSE AGREEMENTS; Surveys
6.1 Use of the Product shall at all times be conditioned upon acceptance and compliance with the EULA by each User. Licensor reserves the right to terminate a User’s right to access the Product in the event of a violation or failure to accept any or all of the terms contained within the EULA.
6.2 Licensor may provide Users with opportunities to participate in surveys relating to use of the Product (“Surveys”). Survey results shall not constitute Customer Data and shall be the sole property of Licensor.
7.1. Licensor may terminate the Agreement and the license herein upon any: i) Customer failure to pay Licensor any fees, charges, taxes, or other reimbursements when due; ii) Customer transfer or attempted transfer of title or possession of the Product; iii) Licensor reasonable belief of a Customer breach of any obligations herein or elsewhere in the Agreement; iv) Customer becoming insolvent, adjudicated bankrupt, or voluntarily seeking protection under any bankruptcy or insolvency law; v) Customer assignment of its assets for the benefit of creditors or any arrangement with its creditors; or vi) delivery of written notice in conjunction with Section 3.1.
7.2. Upon the termination of the Agreement (“Termination”), Customer shall: i) immediately cease any use of the Product; ii) return to Licensor or dispose of all tangible Product documentation, if any; and iii) upon Licensor’s request, certify in writing to Licensor that Customer has complied with its obligations set forth in this Section.
8. CLICK-THRU; THIRD PARTY PAYMENT
8.1. By clicking “I agree,” “I consent” or any other similarly worded “Button” on the Website, including but not limited to “I have read and agree to the website terms and conditions” upon submission of an Order Form, such agreement and/or consent shall be legally binding, enforceable and the legal equivalent of a physical signature. Notwithstanding the foregoing, use of the Product shall constitute acceptance of these Terms.
8.2. The Website may contain links to third party websites including, but not limited to, payment sites for the processing of Fees (“Third Party Sites”). You acknowledge and agree that Company does not control such Third Party Sites, and Company makes no representations whatsoever concerning the terms, content, accuracy, security, or privacy of those sites. Third Party Sites may include charges by such third party for their use. The presence or use of Third Party Sites shall not be deemed to imply any endorsement thereof by Company. You hereby agree to assume all risk arising from your use of all Third Party Sites and to hold Company harmless from any damages you suffer as a result of your decision.
9. LIMITED WARRANTY
9.1 Limited Warranty. EXCEPT AS SET FORTH HEREIN, LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS RELATING TO THE PRODUCT, NOR ANY WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY OTHER MATTER IN CONNECTION HEREWITH. EXCEPT AS PROVIDED HERIEN, ALL WARRANTIES, EXPRESS OR IMPLIED (INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF I) MERCHANTABILITY AND II) FITNESS FOR A PARTICULAR PURPOSE) ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
9.2 Licensor warrants that:
a) Licensor is the owner of the Product with free authority to license same, without necessity of consent or agreement of any third party.
b) the Product shall be delivered free of all viruses and destructive programming designed to i) permit unauthorized access or use by third parties to the mobile device, or ii) disable or damage such device;
c) Licensor will defend Customer against any third party claims, allegations or demands (collectively, “Claims”) that use of the Product infringes upon the patent rights, copyrights, trademark rights or trade secret rights of a third party and indemnify and hold Customer harmless against any related damages, losses, expenses, costs, awards or settlement amounts, provided that: i) Customer notifies Licensor in writing of the Claim within thirty (30) days of its receipt of notice of such; ii) Licensor shall have sole control of the defense of any Claim and of all negotiations for its settlement or compromise (provided that Licensor may not agree to any settlement that involves an admission of liability, without prior written consent, which consent shall not be unreasonably withheld); iii) Customer cooperates with Licensor in every reasonable way to facilitate the settlement or defense of such Claim; and iv) should the Product become or, in Licensor’s opinion, be likely to become, the subject of an infringement claim, Customer will permit Licensor, and will cause all User’s to permit Licensor, at Licensor ‘s expense, to (A) procure the right to continue using such Product, (B) replace or modify the same to become functionally equivalent yet non-infringing, OR (C) terminate, without penalty, use of the affected Product, in which event Licensor will refund to Customer on a pro-rata basis any unused Fees related thereto. The foregoing obligation of Licensor shall not apply to any Claims arising from Customer’s (I) use of infringing third party software, (II) Product(s) made, in whole or part, custom for Customer; (III) impermissible modifications of the Product; (IV) Product(s) combined with other products, processes or materials not provided by Licensor; (V) continuance of infringing conduct after receiving notice thereof or after being provided with modifications that would have avoided the alleged infringement; OR (VI) use of the Product incidental to infringement not resulting primarily from the Product, or in violation of these Terms.
10. INDEMNITY OF LICENSOR
Notwithstanding any disclaimer or limitation of liability contained in the Agreement, and in addition to any other indemnity obligation set forth herein, Customer shall defend, indemnify and hold harmless Licensor and its respective successors, assigns, directors, officers, agents and employees (collectively, “Indemnitee”) from and against any and all liabilities, demands, losses, consequential damages, penalties, costs to mitigate, expenses, fines, amounts paid in settlements or judgments, and all other reasonable expenses and costs incident thereto including, without limitation, court costs and reasonable attorneys’ fees (collectively, “Damages”) to the extent arising out of or resulting from any third-party claim, lawsuit, demand, investigation, proceeding, regulatory action, or other cause of action relating to: (a) the breach or alleged breach by Customer of any representations, warranties, obligations, terms, or covenants contained in this Agreement; (b) Customer violation of any Law; (c) Customer infringement on the intellectual property right of any party; and/or (d) User violation of the EULA (collectively, “Action”). If any Action is commenced against an Indemnitee, written notice will be provided to Customer and Customer shall undertake the defense of such Action, with the reasonable cooperation of Indemnitee, and at Customer’s sole expense. Customer will have the right to settle or compromise such Action at its expense for the benefit of the Indemnitee; however, Indemnitee may not be obligated in any respect in connection with such compromise or settlement without its prior written consent. Notwithstanding the foregoing, if Customer has an obligation to defend an Indemnitee and fails to assume such obligation, the Indemnitee may do so to protect its interests and shall be entitled to obtain reimbursement from Customer for all reasonable sums expended.
11. EXCLUSION OF CERTAIN REMEDIES
NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES OF ANY SORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS. EXCEPT FOR LICENSOR’S INDEMNITY OBLIGATIONS PURSUANT TO ARTICLE 9, LICENSOR’S TOTAL LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF FIVE HUNDRED ($500.00) US DOLLARS.
The Parties agree that in the performance of the Agreement a party (“Receiving Party”) may receive Confidential Information (defined herein) from the other (“Disclosing Party”). As used herein, “Confidential Information” shall mean information given by a Disclosing Party to a Receiving Party which is, or may reasonably be construed as being, confidential or proprietary. All Confidential Information shall be the exclusive property of Disclosing Party. Receiving Party shall hold the Confidential Information in confidence in accordance this Agreement. Receiving Party: i) shall not permit or suffer its employees or agents to remove any proprietary or other legends or restrictive notices contained or included in any Confidential Information provided by Disclosing Party; ii) shall not copy or modify any Confidential Information except as specifically authorized herein; iii) shall not disclose any Confidential Information to a third-party without prior written consent of Disclosing Party; and iv) agrees to use reasonable best efforts to secure and maintain all Confidential Information. When permissible, Receiving Party may disclose Confidential Information only after binding the receiving party to a written agreement with protections equal to, or greater than, those required herein. Nothing herein shall prohibit disclosure of information pursuant to court order or lawful subpoena. The Parties further agree that due to the inherently uncertain nature of the Confidential Information, breach of this Article shall result in irreparable harm to the Disclosing Party, for which, the amount of actual damages sustained are uncertain and impossible to estimate. As a result, the Parties agree that a remedy at law for breach would be inadequate and, in the event of any violation or breach, or threatened violation or breach, the Receiving Party shall be entitled, without the necessity of bond, to injunctive relief from any court of competent jurisdiction with authority to grant such relief. The remedies herein shall be cumulative and in addition to all other remedies available.
13.1. Survival of Terms. Articles 1, 4, 9, 10, 11, 12 and 13 of these Terms, and those terms that by their nature are intended to survive termination of the Agreement, will so survive.
13.2. Headings. Headings herein are for convenience only and shall not be deemed to affect the language of the provisions to which they refer.
13.3. Attorneys’ Fees. In the event of any dispute arising from the Agreement, the prevailing party shall be entitled to recovery of all reasonable attorneys’ fees and costs, at both the trial and appellate levels.
13.4. Governing Law; Venue; The validity, interpretation, and performance of this Agreement will be controlled and governed by the laws of the State of Florida, without regard to conflicts of law provisions. Customer hereby irrevocably consents to jurisdiction and venue for any dispute brought by Licensor concerning this Agreement in the State and Federal Courts of Orange County, Florida.
13.5. Complete Agreement. The Agreement, together with these Terms and all Exhibits, constitute the entire agreement between the Parties and supersede all prior agreements and understandings between them, written or oral, relating to the subject matter of the Agreement. The Agreement may be amended, modified, or supplemented only by writing that is signed by the Parties and expressly states their intent to so amend.
13.6. Severability. If any term or provision of this Agreement or the application of any such provision is held by a court of competent jurisdiction to be contrary to law, invalid, illegal or unenforceable, then such term or provision will be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the original term or provision, and the remaining terms and provisions of this Agreement will continue in full force and effect.
13.7. Injunctive Relief; Litigation Assistance. Customer acknowledges that monetary remedies may be inadequate to protect Licensor’s rights hereunder and that, in addition to legal remedies otherwise available, injunctive relief may be an appropriate remedy to protect such rights. Customer shall provide assistance and cooperation upon Licensor’s reasonable request in connection with any action against a third party to protect Confidential Information.
13.8. Cross Default. Any Default by Customer of: (1) these Terms; (2) the Order Form; (3) the EULA; and/or (4) any other written agreement executed by the Parties shall be deemed a breach of the Agreement.
13.9. Waiver; No Preferential Interpretation. The failure by either party to exercise any right provided hereunder will not be deemed a waiver of such right. Any ambiguity in this Agreement will not be interpreted against either Party and will be interpreted as if each Party hereto had prepared this Agreement.
13.10.Successors and Assigns. Customer may not assign or transfer this Agreement nor any rights or obligations under this Agreement, in whole or part, including but not limited to, a change in control of more than 50% of Customer’s ownership, without the prior written consent of Licensor, which may be withheld at Licensor’s sole discretion. Any assignment or transfer without such consent may be deemed void and of no effect.
13.11.Intellectual Property Rights. As used herein, “Intellectual Property Rights” shall mean all intellectual property and proprietary rights, including: i) inventions (patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent and invention disclosures, together with all related items; ii) all trademarks, service marks, trade dress, logos, trade names, domain names, and business and product names, and all applications and registrations therefor, and all extensions and renewals thereof, and all goodwill of the business connected with the use of and symbolized by the foregoing; iii) all copyrights and copyrightable works, all derivative works, designs, and all applications and registrations therefor, and all extensions and renewals thereof; iv) all trade secrets and confidential business information (including research and development, know-how, processes, techniques, specifications, research records, customer and supplier lists, customer data, pricing and cost information, and business and marketing plans and proposals); v) all Software, and all electronic data, databases and data collections, and; vi) all rights to use the foregoing and all other rights relating thereto.
13.12. Notice. All notices required to be given pursuant to this Agreement shall be in writing and shall be deemed given or made when delivered in person, delivered by overnight courier service or when delivered by certified or registered mail, postage prepaid, and addressed to the addresses as follows: i) as to Customer, the address submitted with the Order Form; ii) as to Licensor: PO Box 1134
Winter Park, FL 32790.
13.13.Jury Trial Waiver. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, IRREVOCABLY, AND UNCONDITIONALLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF THIS AGREEMENT.