Terms of Service

This HandSkills Online Customer Agreement (“Agreement“) is entered into by and between HandSkills, LLC. (“HandSkills“) and the entity or person placing an order for or accessing the Service (“Customer“ or “you“). This Agreement consists of the terms and conditions set forth below and any HandSkills ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms“). If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.

The “Effective Date“ of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.

You acknowledge and agree that HandSkills may modify the terms and conditions of this Agreement at any time in accordance with Section 12 (Modifications to Agreement).

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

The Service acts as a central hub for Customer Data, allowing Customer to collect Customer Data from its selected sources (“Sources“), such as its own or third-party websites or properties, and send the Customer Data to Customer’s chosen destinations, such as Customer’s databases or its accounts with third-party applications or services, for Customer’s further use. The supported Sources and Destinations are identified in the Documentation. As further described below and in the Documentation, Customer maintains control over which Sources and Destinations it uses with the Service, as well as the types and content of Customer Data it shares between its Sources and Destinations.

For Sources owned or controlled by Customer, Customer will enable the collection of Customer Data by implementing HandSkills Developer.

Customer Data“ means any data that Customer submits to the Service, including data that it collects from Customer Properties or retrieves from other Sources through the Service.

Documentation“ means the end user technical documentation provided with the Service, as may be modified from time to time.

Laws“ means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.

Order Form“ is defined above.

Sensitive Personal Information“ means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA“); (iii) any information deemed to be “special categories of data” of an EU resident (prior to May 25, 2018, as such term is defined in EU Data Protection Directive 95/46/EC; and on and after May 25, 2018, as defined in European Union Regulation 2016/679) or (iv) any other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or other Laws.

Service“ means the specific HandSkills Cloud proprietary hosted service solution(s) specified on an Order Form, including the HandSkills dashboard and any related HandSkills service.

Customer may access and use the Service for its internal business operations, subject to this Agreement (including Section 2 (Service Plans and Beta Releases)), the Documentation, and any scope of use restrictions on the applicable Order Form. This includes the right to implement HandSkills Service on Customer Properties in order to collect Customer Data for use with the Service. Access to the Service is limited to Customer’s employees and contractors acting for the sole benefit of Customer (“Permitted Users“). Customer and its Permitted Users may need to register for a HandSkills in order to access or use the Service. Account registration information must be accurate, current and complete, and will be governed by Segment’s Privacy Policy. Customer is responsible for any use of the Service by its Permitted Users and their compliance with this Agreement. Customer shall keep confidential its user IDs and passwords for the Service and remain responsible for any actions taken through its accounts.

Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Service to a third party; (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) use or attempt to use the Service for competitive analysis or benchmarking; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to HandSkills); (e) copy, modify or create any derivative work of the Service or any Documentation; (f) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); or (g) publicly disseminate information regarding the performance of the Service.

HandSkills may store certain Customer Data submitted from Sources to enable various features and functionality of the Service, including for “replay” and re-sending of Customer Data to Destinations at Customer’s direction. Customer acknowledges that Customer Data transmitted through the Service may be stored and processed by HandSkills in the United States or in other countries in which HandSkills or its subcontractors maintain facilities.

HandSkills makes available the Service through a HandSkills Market. Current plans are described at HandSkills Market** **and Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Service. Customer’s permitted scope of use – such as features available, permitted number of monthly tracked users (MTUs) and other usage limits – depends on the plan that Customer selects and will be specified on the applicable Order Form.

All fees are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly Paid Plans, Customer will pay all fees at the end of the month, Customer will pay all fees within thirty (30) days of invoice. Except as expressly set forth in Section 12 (Modifications to Agreement), all fees are non-refundable. HandSkills reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of HandSkills. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, HandSkills reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees monthly in arrears.

Subject to this Agreement and as further described in the Documentation, Customer may configure the Customer Data elements to be collected from Sources and shared with different Destinations. In some instances, as referenced in the Service dashboard and Documentation, enabling a third-party Source involves implementing the third-party provider’s own SDK or code on Customer Properties. As a result, in these cases, certain default data designated by that Source’s provider may be sent directly to Customer’s accounts with that Source, rather than passing through the Service.

Customer is solely responsible for the accuracy, content and legality of all Customer Data and agrees to comply with all applicable Laws in its use of the Service. Customer represents and warrants to HandSkills that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting HandSkills the rights in Section 6.1), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations. By enabling use of the Service with any Source or Destination, Customer authorizes HandSkills to access Customer’s accounts with such Source or Destination for the purposes described in this Agreement. HandSkills may also disclose that Customer is a customer of HandSkills and related technical Service data to providers of third-party Sources and Destinations used by Customer with the Service.

Customer specifically agrees not to use the Service to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that HandSkills is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Service is neither HIPAA nor PCI DSS compliant. HandSkills shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.

Customer shall indemnify, defend and hold harmless HandSkills from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Sections 4.2 (Rights in Customer Data) or 4.3 (No Sensitive Personal Information). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of HandSkills at Customer’s expense.

HandSkills agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Data. However, HandSkills shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond HandSkills’ control.

As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to HandSkills. Subject to the terms of this Agreement, Customer hereby grants to HandSkills a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Service to Customer.

This is a subscription agreement for access to and use of the Service. Customer agrees that HandSkills or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the Service or any HandSkills Service are granted to Customer.

Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Segment product or service to HandSkills (“Feedback“). Segment may freely use or exploit Feedback in connection with any of its products or services.

Notwithstanding anything to the contrary herein, Customer agrees that HandSkills may obtain and aggregate technical and other data about Customer’s use of the Service that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data“), and HandSkills may use the Aggregated Anonymous Data to analyze, improve, support and operate the Service and for distribution in general benchmarking data and industry reports. For clarity, this Section 6.4 does not give HandSkills the right to identify Customer as the source of any Aggregated Anonymous Data.

This Agreement is effective as of the Effective Date and will continue until terminated.

Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section 7.2 limits HandSkills’ right to terminate or suspend any service.

Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service (including any and all related HandSkills Mail and Cloud), cease distributing any HandSkills Service give on Customer Properties, and delete (or, at HandSkills’ request, return) any and all copies of the Documentation, any HandSkills passwords or access codes and any other HandSkills Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Service, and that HandSkills may delete any such data as may have been stored by HandSkills at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

In addition to HandSkills’ termination and other rights under this Agreement, HandSkills reserves the right to suspend Customer’s access to the Service (and any related services), in whole or in part, without liability to Customer and with immediate effect: (i) if Customer’s account is thirty (30) days or more overdue; (ii) if Customer exceeds any scope of use restrictions set forth in the applicable Order Form; (iii) if Customer has breached its express obligations under Sections 1.5 (Use Restrictions) or 4 (Customer Obligations); or (iv) to prevent harm to the Service or other HandSkills customers.

The following Sections shall survive any expiration or termination of this Agreement: 1.5 (Use Restrictions), the disclaimers in Section 2.5 (Beta Releases), 3 (Fees and Payment), 4.4 (Indemnification by Customer), 6 (Ownership), 7 (Term and Termination; Suspension), 8 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (Modifications to Agreement) and 13 (General Terms).

THE SERVICE AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER HANDSKILLS NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. HANDSKILLS DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES HANDSKILLS WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND HANDSKILLS TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. HANDSKILLS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF HANDSKILLS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

HANDSKILLS’ (AND ITS SUPPLIERS’) ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO HANDSKILLS DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.

Excluded Claims“ means (a) any claim arising from Customer’s breach of Section 1.5 (Use Restrictions); or (b) any claim arising under Section 4 (Customer Obligations).

The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

Each party (as “Receiving Party“) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any HandSkills technology, performance information relating to the Service, and the terms and conditions of this Agreement shall be deemed Confidential Information of HandSkills without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for HandSkills, the subcontractors referenced in Section 13.10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

Customer agrees to participate in reasonable marketing activities that promote the benefits of the Service to other potential customers and to use of Customer’s name and logo on HandSkills’ web site and in HandSkills promotional materials.** **Customer agrees that HandSkills may disclose Customer as a customer of HandSkills.


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