Harvesting Terms of Service Agreement
Updated: Feb 26, 2019
This Harvesting Terms of Service Agreement (including all exhibits,
schedules, appendices and other documents setting forth obligations of
the parties, this “Agreement”) is and shall
remain in effect between Harvesting, Inc., a Delaware corporation
(“Harvesting”), and the Client Institution
(the “Client Institution”) listed on any
Order Form of any Subscription Agreement (as defined below) so long as
any Subscription Agreement is in effect between the parties. This
Agreement supersedes all agreements between the parties prior to the
Agreement Date of any Subscription Agreement, with respect to the
subject matter hereof and may be amended or modified in any respect only
by an agreement signed by the parties or as otherwise provided herein.
Unless otherwise defined herein, terms used herein have the meanings
assigned them in Part 1 below, “Definitions”.
TABLE OF CONTENTS
- Definitions
- Services & Payments
- Harvesting Responsibilities
- Client Institution Responsibilities
- Legal Framework
Important Notices
This Agreement provides for the basic relationship between the parties
hereto regardless of the level of service and the specifications for
such service agreed to by Harvesting and the Client Institution. The
level of service in effect at any time will be clearly defined in one
or more Subscription Agreements.
Each Appendix hereto (as well as all Subscription Agreements in effect
at any time) is an integral part of this Agreement. Any conflict
between the Agreement and any Appendix or Subscription Agreement shall
be resolved in favor of the appropriate Appendix or Subscription
Agreement. Please note that some of the Subscription Agreements may
specify when and how they may be amended at the discretion of
Harvesting.
AGREEMENT: PART 1 - DEFINITIONS
Terms used in this Agreement shall have the meanings set forth below,
unless otherwise defined in any Subscription Agreement:
“Agreement” means this Harvesting Terms of
Service Agreement, which includes all exhibits, schedules and appendices
hereto and thereto and any other document delivered in connection
herewith or therewith setting forth the obligations of the parties, as
the same may be amended, restated or modified from time to time in
accordance with the terms hereof.
“Agreement Date” has the meaning set forth
on any Order Form of any Subscription Agreement.
“Client Institution” has the meaning set
forth on any Order Form of any Subscription Agreement.
“Confidential Data” means business,
technical or financial information disclosed by one party hereunder to
the other, which information relates to the business of the disclosing
party (including, (i) with respect to Harvesting, non-public information
regarding features, functionality and performance of the Services and
(ii) with respect to the Client Institution, non-public information
regarding its Customers, loan portfolio and credit practices). For
purposes hereof, Raw Data and Identifiable Information shall always be
treated as Confidential Data and Derived Data shall be excluded from the
definition of Confidential Data.
“Contract Year” means, with respect to a
Service, a period commencing on the Purchase Date of such Service or a
subsequent annual anniversary thereof and expiring one year later,
unless otherwise defined in any Subscription Agreement.
“Customer” means any customer or potential
customer of the Client Institution.
“Derived Data” means data which cannot be
traced to an identifiable Customer or to the Client Institution, that is
derived by Harvesting (i) from Raw Data by applying mathematical models,
aggregation or transformations of any kind to such data or (ii) by
collecting data on the Client Institution’s use of the Platform.
Harvesting shall be the exclusive owner of Derived Data.
“Equipment” means, for any Service, all
equipment and ancillary services needed to connect to, access or
otherwise use such Service, including, without limitation, modems,
hardware, servers, software, operating systems, networking, mobile
devices, web servers and the like.
“Harvesting” means Harvesting, Inc., a
Delaware corporation.
“Force Majeure” means an event or
circumstance beyond the reasonable control of Harvesting and that cannot
be prevented with the exercise of reasonable diligence and observance of
standard practices, including, without limitation, the following events
in particular: acts of government, meteorological disturbances, lack or
suspension of power supply, lightning or fire, decisions by a national
or international administrative authority or by any other competent
authority, war, public disorder and the inevitable risks that may stem
from the technology and from the complexity of its implementation.
“Identifiable Information” means
information that can be used to distinguish or trace the identity of an
individual or institution (including a User, a Customer or the Client
Institution) by direct or indirect means, either when used alone or when
combined with other personal or identifying information that is linked
or linkable to a specific individual or institution.
“Order Form” means the document setting
forth the Services to be provided in any Subscription Agreement.
“Payment Date” means, for any Service, any
date on which payment for such Service is due, as defined in the
Subscription Agreement relating to such Service.
“Platform” means the web-based application,
mobile application, application programming interface (API) or other
medium through which Harvesting provides, and through which the Client
Institution may access, the Services.
“Project Lead” means the person at the
Client Institution who is responsible for managing the Services,
ensuring timelines are met and authorizing configuration decisions.
“Purchase Date” means the date on which the
Client Institution purchases any Service by executing an Order Form
attached to any Subscription Agreement.
“Raw Data” means all data provided to
Harvesting by the Client Institution, including Raw Platform Data,
database backups, direct database queries, extracted datasets in the
form of spreadsheets, comma separated value documents and other data
transferred directly from the Client Institution via other mediums.
“Raw Platform Data” means data provided by
the Client Institution to the Platform in the form such data was
provided.
“Related Parties” of any party means such
party’s subsidiaries, affiliates, officers, directors, agents,
managers, employees, contractors, partners and licensors.
“Subscription Agreement” means a
Subscription Agreement that is executed by the parties hereto from time
to time. A Subscription Agreement may describe a Service, rates and
payment terms for such Service, how such Service is implemented or
delivered and/or various terms and conditions related to such Service. A
Subscription Agreement applicable to a particular Service is not
applicable to another Service unless specified in the appropriate
Subscription Agreement. Once a Subscription Agreement has been executed
or terminated, Harvesting will transmit to the Client Institution a
complete list of Subscription Agreements which are in effect.
“Service” means a service made available by
Harvesting to the Client Institution pursuant to a Subscription
Agreement. “Services” means, at any time, all Services being
validly provided hereunder.
“Service Documents” means
all manuals and materials delivered (electronically or physically) or
made available by Harvesting to the Client Institution from time to
time.
“Software” means any software,
documentation or data directly or indirectly utilized by Harvesting to
perform or deliver the Services.
“Subscription Fee” means,
for any Service, the subscription fee for such Service, as defined in
the Subscription Agreement relating to such Service.
“Taxes” means any taxes, levies, duties or
similar governmental assessments of any nature, including value-added,
sales, use or withholding taxes, assessable by any jurisdiction
whatsoever. “Taxes” do not include any general income tax
imposed upon Harvesting by any governmental authority.
“Third-Party Billing Agent” means a company
specified by Harvesting which will automatically debit a specified bank
account of the Client Institution for all fees due from the Client
Institution hereunder and remit such funds to Harvesting.
“User” means each loan officer, supervisor,
credit committee member and any other agent which the Client Institution
designates from time to time to Harvesting as a person who has been
granted access to the Services and the Platform.
AGREEMENT: PART 2 - SERVICES AND PAYMENT
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Services
The applicable Services provided hereunder are outlined in one or more
Subscription Agreements agreed to between the Client Institution and
Harvesting.
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Future
Functionality The Client Institution acknowledges
that purchase of any Service is not contingent on the delivery by
Harvesting of any future functionality or features, regardless of any
oral or written public or private comments made by Harvesting or
persons actually or claiming to represent Harvesting.
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Term and
Termination
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Initial
Term and
Renewal The term of each Service shall be
specified in the applicable Subscription Agreement. Except as
otherwise provided herein or in any Subscription Agreement
relating to a Service, this Agreement, with respect to any
Service, shall be in effect for one year following the Purchase
Date for such Service and shall be automatically renewed for
consecutive Contract Years thereafter unless either party notifies
the other, no later than 30 days prior to the end of any such
Contract Year, of its intention to terminate the subscription for
any Service at the close of such Contract Year (a
“Termination Notice”).
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Effect of Termination
Upon termination of any Service, the Client Institution will pay
in full for such Service up to and including the last day of the
relevant Contract Year. All sections of this Agreement which by
their nature should survive termination will survive termination,
including, without limitation, accrued rights to payment,
confidentiality obligations, warranty disclaimers and limitations
of liability. Upon request by the Client Institution, within 30
days following the effective date of termination, Harvesting will
make available the Raw Platform Data, consisting of data entered
into the Platform by the Client Institution. After such 30-day
period, Harvesting will have no obligation to provide the Client
Institution access to any Raw Platform Data or to the Platform.
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Fees and Payment
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Fees The Client Institution will pay all fees and
expenses as specified in each applicable Subscription Agreement.
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Late Fees Unpaid amounts are subject to a
late fee of 2% per month on any outstanding balance, or the
maximum permitted by law, whichever is less, plus all expenses
of collection, and may result in immediate termination of the
Services. Failure to make timely payment for one Service may
result in suspension of other Services until payment is
received. In the case of any such termination by Harvesting,
the Client Institution shall be liable for all fees through
the end of the Contract Year.
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Third-Party Billing Harvesting may require
the Client Institution to register with its designated
Third-Party Billing Agent. If so required for any Service, on
each Payment Date for such Service, the Third-Party Billing
Agent will debit a designated account of the Client
Institution for the applicable fees and expenses, if any, and
remit such amount to an account specified by Harvesting. If
the Client Institution takes any action to prevent the
Third-Party Billing Agent from debiting the Client
Institution’s account for amounts due (including by
failing to maintain sufficient funds in such account), the
Client Institution shall immediately remit all amounts due to
Harvesting. Failure to do so may result in suspension of all
Services to the Client Institution.
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Price Guarantee The Subscription Fee set
forth for any Service in a Subscription Agreement will be in
effect for one-year unless otherwise defined in any
Subscription Agreement following the Purchase Date for such
Service. In connection with the automatic annual renewal of
this Agreement as set forth above with respect to such
Service, Harvesting shall, not later than 60 days prior to
such annual renewal, notify the Client Institution of all
changes in the fees and other amounts payable for such Service
for the forthcoming Contract Year, which terms shall be deemed
accepted by the Client Institution unless it delivers a
Termination Notice to Harvesting as specified above.
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Refunds There shall be no refunds of amounts
paid to Harvesting hereunder.
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Taxes Fees and other amounts payable
hereunder do not include any Taxes. The Client Institution is
responsible for paying all Taxes associated with the delivery
of the Services hereunder.
AGREEMENT: PART 3 - Harvesting RESPONSIBILITIES
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Harvesting Performance Standard. Harvesting shall use
reasonable efforts consistent with prevailing industry standards to
maintain the Services in a manner which minimizes errors and
interruptions and shall perform the Services in a professional and
workmanlike manner. The Services may be temporarily unavailable for
scheduled maintenance or for unscheduled emergency maintenance,
whether by Harvesting or by third-party providers, or because of other
causes beyond the reasonable control of Harvesting, but Harvesting
shall use reasonable efforts to provide advance electronic written
notice of any scheduled service disruption, and to schedule any such
disruptions outside normal working hours for the Client Institution.
Notwithstanding the foregoing, Harvesting does not warrant that the
Services will be uninterrupted or error-free, nor does it make any
warranty as to the results that may be obtained from use of the
Services. Except as expressly set forth in this Agreement, the
Services are provided “as is” and Harvesting disclaims all
warranties, express or implied, including, but not limited to, implied
warranties of merchantability and fitness for a particular purpose.
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Technical Support Harvesting will provide the Client
Institution with technical support in accordance with Harvesting
standard practice and as specified in the Subscription Agreement for
the particular Services purchased. The Client Institution will be
responsible for contacting Harvesting should any problems or technical
issues arise at any time while using or attempting to use the
Services. Reporting of technical issues shall be the sole
responsibility of the Client Institution and Harvesting shall have no
obligations to remedy or provide service credits for unreported
technical issues.
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Harvesting Representations and Warranties Harvesting
hereby makes the following representations and warranties to the
Client Institution, each of which shall be true and correct as long as
this Agreement is in effect:
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It has full right, power and authority to enter into this
Agreement.
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Its entry into and performance under this Agreement does not and
will not violate its constituent documents or any contract to
which it is a party, or any order or judgment of any court by
which it is bound.
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It is duly organized, validly existing and has the necessary
authorizations, regulatory, corporate and otherwise, to enter into
this Agreement and to fulfill its obligations under this
Agreement.
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It will maintain the proper licenses and authorizations and remain
in good standing with each appropriate regulatory agency during
the term of this Agreement.
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It is in compliance with all applicable international, federal,
state and local laws, rules and regulations in the performance of
its obligations under this Agreement. Without limiting the
foregoing, in connection with this Agreement, Harvesting and its
directors, officers and employees are in compliance with all
applicable anti-bribery measures. In particular, Harvesting has
not, directly or indirectly, offered, given, promised to give or
authorized the giving of any money, loan, gift, donation or other
thing of value to induce a government official to do or to omit
from doing any act in violation of his or her lawful duty, in
order to obtain any improper advantage or to induce a government
official to use his or her influence improperly to affect or
influence any act or decision.
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It has not engaged in any dealings or transactions, directly or
indirectly, (i) in contravention of any applicable anti-money
laundering or anti-terrorism law or (ii) with persons appearing on
the U.S. or U.N or any other relevant country’s list of
restricted or prohibited persons.
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It owns or has the legal right to use all of the intellectual
property which it will use to perform its duties hereunder and has
valid licenses for all third-party software used in the
development of the such intellectual property. There is no current
or threatened claim, lien or action, including infringement claims
or an alleged violation of a third party's intellectual property
rights that could interfere with the provision of the Services by
Harvesting.
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It has taken all actions reasonably necessary, in accordance with
standards prevalent in the “Software as a Service”
industry, to ensure that the Software does not now and will not in
the future contain any computer virus, Trojan horse, malware, or
other such code designed to damage, disrupt or impede the orderly
operations of the Client Institution’s computer system or
network and Harvesting has, in accordance with standards prevalent
in the “Software as a Service” industry, tested and
will continue to test as reasonably necessary, the Software to
detect and eliminate any such disabling viruses or devices.
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There are no clauses or provisions in any of the agreements
between Harvesting and any third party that could reasonably be
expected to interfere with the provision of the Services by
Harvesting or create obligations on the Client Institution other
than as set forth in this Agreement.
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Indemnity
Harvesting will indemnify, defend and hold harmless the Client
Institution and its Related Parties from and against all claims,
losses, actions and demands (including all attorneys' fees, costs,
debts, expenses, liabilities, damages and judgments arising from or
related thereto) made by any third party related to or arising out of
any breach by Harvesting of the warranty set forth in paragraph 3(g)
above relating to intellectual property. Notwithstanding the
foregoing, the liability of Harvesting under the previous sentence
with respect to any Contract Year shall not exceed the Subscription
Fees actually paid hereunder during such Contract Year, except where
such liability arises from the gross negligence, willful misconduct or
bad faith of Harvesting or its employees, agents or consultants.
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Confidentiality
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Harvesting agrees that it will (a) take reasonable precautions in
conformity with industry practices in effect at any time to
protect Confidential Data of the Client Institution, and (b) not
use or divulge to any third person any such Confidential Data,
except in performance of the Services or as otherwise permitted
herein. The foregoing shall not apply with respect to any
information after five years following the disclosure thereof or
any information that Harvesting can document (i) is or becomes
generally available to the public, (ii) was legally in its
possession or known by it prior to receipt from the Client
Institution, (iii) was legally disclosed to it without restriction
by a third party, (iv) was independently developed without use of
any Confidential Data or (v) is required to be disclosed by law.
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Without limiting the generality of the foregoing, Harvesting will
not disclose to any third party (other than its employees,
consultants and affiliates with a need to know such Confidential
Data in connection with the provision of the Services) any Raw
Data which identifies a Customer and will at all times comply with
all privacy laws of the locality in which the Client Institution
is physically located. Harvesting shall be free to utilize Derived
Data such as loan origination and platform usage data in its sole
discretion.
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Responsibilities Regarding Data and Information
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Data Security To help protect the security of
information transmitted by the Client Institution in connection
with the Service, Harvesting uses SSL/TLS to encrypt such
information. In addition, Harvesting takes steps to protect the
information it collects against unauthorized access. Harvesting
utilizes commercially reasonable security, though no system can
perfectly guard against risks of intentional intrusion or
inadvertent disclosure of information. Performance of the Services
by Harvesting requires that information be transmitted over a
medium that is not controlled by Harvesting. The Client
Institution expressly assumes the risk of any unauthorized
disclosures, intentional intrusion or any delay, failure,
interruption or corruption of data or other information
transmitted in connection with the use of the Services. For more
details, please see the Harvesting Data Security & Privacy
Policy. Any conflict between the Data Security & Privacy
Policy and this Agreement shall be resolved in favor of this
Agreement.
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Data Storage The Client Institution’s
information collected through the Service may be stored and
processed on secured servers in the United States, the United
Kingdom or any other country in which Harvesting or its technology
providers maintain facilities. If the Client Institution is
located in a jurisdiction with laws governing data collection and
use that may differ from U.S. law, the Client Institution should
be aware that information may be transferred to a jurisdiction
that does not have the same data protection laws. The Client
Institution consents to such transfer of information. If the
Client Institution notifies Harvesting that such transfer of
information will be problematic under the laws of its
jurisdiction, Harvesting will take reasonable steps to work with
the Client Institution to avoid the problems arising from such
transfer. Following termination of this Agreement, Harvesting may
retain the Client Institution’s information for up to two
years, for backup, archival or audit purposes.
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Access to Information
Harvesting may access, preserve and disclose account information,
including records regarding the Client Institution’s use of
the Services and records of content submitted or accessed, if
requested to do so by a User or if Harvesting has a good faith
belief that such access, preservation or disclosure is reasonably
necessary to: (i) comply with legal process; (ii) enforce this
Agreement; (iii) respond to any claim that any content violates
third-party rights; (iv) respond to the Client Institution’s
requests for customer service; or (v) protect the rights, property
or personal safety of Harvesting, its customers or the public. If
Harvesting is requested or required (by subpoena, court order,
administrative order or otherwise) to disclose any of the Client
Institution’s account information, Harvesting shall provide
the Client Institution with prompt written notice, unless notice
is prohibited by law, of such request or requirement so that the
Client Institution may seek a protective order or other
appropriate remedy. If such protective order or other remedy is
not obtained, Harvesting may disclose only that portion of the
Client Institution’s account required to be disclosed.
AGREEMENT: PART 4 - CLIENT INSTITUTION RESPONSIBILITIES
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Utilization of Services
The Client Institution will utilize the Services in accordance with
this Agreement and the Service Documents. The Client Institution is
solely responsible for obtaining and maintaining any and all
Equipment. The Client Institution will also be responsible for
maintaining the security of the Equipment, the Client
Institution’s account, passwords (including but not limited to
administrative and User passwords) and files, and for all uses of the
Client Institution’s account or the Equipment with or without
the Client Institution’s knowledge or consent.
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Registration; Authorized Users
On or before the Purchase Date for any Service, and from time to time
thereafter, the Client Institution shall register the identity of
Users for such Service. Harvesting reserves the right to set password
requirements for all Users. The Client Institution shall be
responsible for assigning rights to access the Platform to each User
and managing the rights of Users, including assigning administrative
rights and removing the right of any User to access the Platform when
such User ceases working for the Client Institution. Notwithstanding
the foregoing, Harvesting may in its sole discretion terminate or
limit any User’s rights when Harvesting determines that such
User’s activities are inconsistent with the purposes of this
Agreement.
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Prohibitions The Client Institution will not,
directly or indirectly: (a) reverse engineer, decompile, disassemble
or otherwise attempt to discover the source code, object code or
underlying structure, ideas, know-how or algorithms relevant to the
Services, the Platform or the Software; (b) modify, translate or
create derivative works based on the Services, the Platform or the
Software (except to the extent expressly permitted by Harvesting or
authorized within the Services); or (c) use the Services, the Platform
or the Software for time sharing or service bureau purposes or
otherwise for the benefit of a third party.
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Appointment of Project Lead
Prior to the Purchase Date for any Service, the Client Institution
will appoint and introduce to Harvesting a representative (the
“Project Lead”) who will be responsible for (i) liaising
with Harvesting with respect to such Service and (ii) providing
Harvesting all information required to configure the Platform for such
Service. The Subscription Agreement setting forth each Service
specifies Platform configurations available as part of such Service.
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Cooperation The Client Institution will cooperate
reasonably and in good faith with Harvesting by, without limitation:
(a) assigning an internal Project Lead to manage communications with
Harvesting and ensure requests for information, materials and feedback
are delivered by the Client Institution in a timely manner; (b)
advising Harvesting from time to time as necessary which Users have
final sign-off authority on changes in the Platform and delivery of
the Services; (c) allocating sufficient resources to implement use of
the Services at the Client Institution; and (d) preparing for and
actively participating in scheduled meetings.
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Fraud Prevention
The Client Institution is solely responsible for (a) the accuracy of
any data provided to Harvesting regarding any Customer and (b)
determining whether Users are utilizing the Services or information on
the Platform for fraudulent purposes or for any purposes other than to
process and assess bona fide Customers. The Client Institution
understands that any usage of the Services that is not in accordance
with this Agreement or the Service Documents may adversely affect the
effectiveness of the Services, and shall report all misuses of the
Services to Harvesting as soon as possible.
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Client Institution Representations and Warranties
The Client Institution hereby makes the following representations and
warranties to Harvesting, each of which shall be true and correct as
long as this Agreement is in effect:
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It has full right, power and authority to enter into this
Agreement.
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Its entry into and performance under this Agreement does not and
will not violate its constituent documents or any contract to
which it is a party, or any order or judgment of any court by
which it is bound.
-
It is duly organized and validly existing and has the necessary
authorizations, regulatory, corporate and otherwise, to enter into
this Agreement and to fulfil its obligations under this Agreement.
-
It will maintain all proper licenses and authorizations and remain
in good standing with the appropriate regulatory agency.
-
It is in compliance with all applicable international, federal,
state and local laws and rules and regulations in the performance
of its obligations under this Agreement. Without limiting the
foregoing, in connection with this Agreement, it and its members,
trustees, directors, officers and employees are in compliance with
all applicable anti-bribery measures. In particular, the Client
Institution has not, directly or indirectly, offered, given,
promised to give or authorized the giving of any money, loan,
gift, donation or other thing of value to induce a government
official to do or to omit from doing any act in violation of his
or her lawful duty, in order to obtain any improper advantage, or
to induce a government official to use his or her influence
improperly to affect or influence any act or decision.
-
It has not engaged in any dealings or transactions, directly or
indirectly, (i) in contravention of any applicable anti-money
laundering or anti-terrorism law or (ii) with persons appearing on
the U.S. or U.N or any other relevant country’s list of
restricted or prohibited persons.
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Compliance with Law
The Client Institution shall comply with all laws, rules and
regulations (including laws relating to utilization of personal
information and data security) applicable to it in connection with its
use of the Services and its activity on the Platform and the handling
and use of any information accessed or utilized by it.
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Indemnity The Client Institution will indemnify,
defend and hold harmless Harvesting and its Related Parties from and
against all claims, losses, actions and demands (including all
reasonable attorneys' fees, costs, debts, expenses, liabilities,
damages and judgments arising from or related thereto) made by any
third party related to or arising out of : (i) the Services; (ii) use
of or access to the Services; and (iii) the Client Institution’s
violation of this Agreement or the rights of another, including,
without limitation, any intellectual property rights or rights of
privacy or publicity.
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Confidentiality
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The Client Institution agrees that it will (a) take reasonable
precautions to protect Confidential Data of Harvesting and (b) not
use or divulge to any third person any such Confidential Data,
except as otherwise permitted herein. The foregoing shall not
apply with respect to any information after five years following
the disclosure thereof or any information that the Client
Institution can document (i) is or becomes generally available to
the public, (ii) was legally in its possession or known by it
prior to receipt from Harvesting, (iii) was legally disclosed to
it without restriction by a third party, (iv) was independently
developed without use of any Confidential Data or (v) is required
to be disclosed by law.
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Without limiting the generality of the foregoing, the Client
Institution shall not disclose to any third party (other than
Customers (to the extent required by applicable law), employees,
consultants and affiliates with a need to know such Confidential
Data in connection with the use of the Services) any Third-Party
Data disclosed by Harvesting that identifies a Customer.
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The Client Institution recognizes that outputs of the Platform are
configured to the specifications of the Client Institution and
that use by a third party may damage the reputation of Harvesting.
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The Client Institution recognizes that in providing the Services,
Harvesting is relying on its own intellectual property, hardware
and software and that neither the Client Institution nor any other
party shall have any entitlement to review the process by which
Harvesting builds the Platform or provides the Services or to
utilize any such intellectual property, hardware or software for
any purpose not specifically contemplated by this Agreement.
AGREEMENT: PART 5 - LEGAL FRAMEWORK
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Force Majeure The Client Institution acknowledges and
understands that instances of Force Majeure may prevent Harvesting
from performing all or part of the Services and that Harvesting will
not be considered to have breached its obligations under such
circumstances. If any Service is affected by Force Majeure, Harvesting
will use its reasonable best efforts to inform the Client Institution
without delay of the extent and duration of its inability to fulfill
its obligations or of the delay in executing its obligations.
Harvesting cannot under any circumstances be held responsible for any
kind of consequence of any instance of Force Majeure.
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Publicity Each party may use the name and logo of the
other party in commercially reasonable marketing, advertising and/or
publicity releases, and describe work completed under this Agreement,
without revealing any of the other party’s confidential
information, so long as the relationship between the parties is
accurately portrayed.
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Limitation of Liability
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Claims To the maximum extent permitted by
applicable law, in no event shall Harvesting or its Related
Parties be liable for any direct, indirect, punitive, incidental,
special, consequential or exemplary damages, including, without
limitation, damages for loss of profits, goodwill, use, data or
other intangible losses, that result from the use of, or inability
to use, the Services. Under no circumstances will Harvesting be
responsible for any damage, loss or injury resulting from hacking
or tampering by a third party or other unauthorized access or use
of the Services by the Client Institution. This paragraph applies
whether the alleged liability is based on contract, tort,
negligence, strict liability or any other basis, even if
Harvesting has been advised of the possibility of such damage. The
foregoing shall apply to the fullest extent permitted by law in
the applicable jurisdiction.
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Harvesting Responsibility To the maximum extent
permitted by applicable law, Harvesting assumes no liability or
responsibility for any (i) errors, mistakes or inaccuracies of
content; (ii) personal injury or property damage, of any nature
whatsoever, resulting from access to or use of the Service; (iii)
any unauthorized access to or use of Harvesting secure servers
and/or any and all personal information stored therein; (iv) any
interruption or cessation of transmission to or from the Services;
(v) any bugs, viruses, Trojan horses or the like that may be
transmitted to or through the Services by any third party, (vi)
any error or omission in any content or for any loss or damage
incurred as a result of the use of any content (including third
party content) posted, emailed, transmitted or otherwise made
available through the Services; or (vii) user-provided content or
the defamatory, offensive or illegal conduct of any third party.
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Dispute Resolution For any dispute with Harvesting,
the Client Institution shall first contact Harvesting at
info@harvesting.co and
attempt to resolve the dispute informally. The parties cannot resolve
a dispute after attempting to do so informally, any claim, dispute or
controversy arising from, in connection with or relating to this
Agreement or the breach or alleged breach thereof, shall be resolved
by binding arbitration by the American Arbitration Association ("AAA")
under the Commercial Arbitration Rules and Supplementary Procedures
for Consumer Related Disputes then in effect for the AAA. The
arbitration will be conducted in Santa Clara, California, USA, unless
the parties agree otherwise. Each party will be responsible for paying
any AAA filing, administrative and arbitrator fees in accordance with
AAA rules. The award rendered by the arbitrator shall include costs of
arbitration, reasonable attorneys' fees and reasonable costs for
expert and other witnesses, and any judgment on the award rendered by
the arbitrator may be entered in any court of competent jurisdiction.
Nothing in this Section shall prevent either party from seeking
injunctive or other equitable relief from the courts as necessary to
prevent the actual or threatened infringement, misappropriation or
violation of that party's data security, intellectual property rights
or other proprietary rights. All claims must be brought in the
parties' individual capacity, and not as a plaintiff or class member
in any purported class or representative proceeding, and, unless
Harvesting agrees otherwise, the arbitrator may not consolidate more
than one person's claims. By entering into this Agreement, each party
waives the right to a trial by jury or to participate in a class
action.
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Changes The Service is offered subject to the Client
Institution’s acceptance of the terms of this Agreement.
Harvesting may make changes to this Agreement from time to time, in
its sole discretion. The Client Institution will be notified via email
of any changes to this Agreement. Any changes made to this Agreement
shall not affect the term or Subscription Fee of any Subscription
Agreement. The current version of this Agreement shall be accessible
at URL. By continuing to use the Service in any manner, the Client
Institution agrees to the terms of this Agreement.
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Miscellaneous
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If any provision of this Agreement is found to be unenforceable or
invalid, that provision will be limited or eliminated to the
minimum extent necessary so that this Agreement will otherwise
remain in full force and effect and enforceable.
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This Agreement is not assignable, transferable or sub-licensable
(i) by Harvesting except upon 60 days’ prior written notice
to the Client Institution and (ii) by the Client Institution
except with prior written consent from Harvesting.
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This Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes all previous
written and oral agreements, communications and other
understandings relating to the subject matter hereof; all waivers
and modifications must be in a writing signed by both parties,
except as otherwise provided herein.
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No agency, partnership, joint venture or employment is created as
a result of this Agreement and neither party has any authority of
any kind to bind the other party in any respect whatsoever. In any
action or proceeding to enforce rights under this Agreement, the
prevailing party will be entitled to recover costs and
attorneys’ fees.
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All notices under this Agreement will be in writing and will be
deemed to have been duly given when received, if personally
delivered; when receipt is electronically confirmed, if
transmitted by facsimile or e-mail; the day after it is sent, if
sent for next day delivery by recognized overnight delivery
service; and upon receipt, if sent by certified or registered
mail, return receipt requested.
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This Agreement shall be governed by the laws of the State of
California, United States of America, without regard to its
conflict of laws principles. The application of the United Nations
Convention on Contracts for the International Sale of Goods is
expressly excluded. The Client Institution agrees to submit to the
personal jurisdiction of the federal and state courts located in
Santa Clara, California, USA for any action for which Harvesting
retains the right to seek injunctive or other equitable relief in
a court of competent jurisdiction to prevent the actual or
threatened infringement, misappropriation or violation of its
copyrights, trademarks, trade secrets, patents or other
intellectual property or proprietary rights, as set forth in the
arbitration provision above.