Master Terms
These terms and conditions (the “Terms”) govern the access to, and use of, the Services and Vendor Software. Client and Harbor are referred to individually as a “Party” and collectively as the “Parties.”
DEFINITIONS
The following terms have the meanings given to them below:
- “Affiliate”
means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or is under common control with a Party.
- “Agreement”
means the Terms (including the DPA) and the Order Forms.
- “Authorized Users”
means those specific individuals identified by Client who are both (i) Client Personnel, and (ii) authorized to access and use the Harbor Software under Client’s account.
- “Client”
means the Client identified in the applicable Order Form.
- “Client Materials”
means all data (including Personal Data), content, information, or materials provided by Client to Harbor or its Personnel, or to which Client provides access to Harbor or its Personnel, through or in connection with the Services, or Vendor Software.
- “Cloud Software”
means the cloud-based software, including software-as-a-service applications, that are made available by Harbor and/or its Affiliates to Client pursuant to an applicable Order Form, but excludes Vendor Software.
- “Confidential Information”
means the non-public or confidential information of a Party or its Affiliates, whether disclosed orally or in written, electronic or other form of media, and whether or not marked or identified as confidential.
- “Deliverable”
means work product created or developed for Client through the Professional Services pursuant to an Order Form.
- “Disclosing Party”
means the Party disclosing or otherwise providing access to its Confidential Information.
- “Documentation”
means the technical documentation for Harbor Software (if any).
- “DPA”
means the data processing addendum available at https://harborglobal.com/legal/data-processing-addendum/
- “Effective Date”
means the (i) effective date specified in the applicable Order Form, or (ii) if no date is specified, the earlier of the date Client executes the Order Form or the date Client first accesses the Services, or Vendor Software.
- “End User Agreement”
means the terms of use of Vendor Software stipulated by the Vendor, including as specified in the applicable Order Form.
- “Force Majeure Event”
means circumstances beyond a Party’s reasonable control, including fire, flood, earthquakes, power failures, denial-of-service attacks, acts of God, war, terrorism, riots, civil disturbances, strikes, labor disruptions, pandemics/epidemics, governmental actions, or disruptions of third-party services or infrastructure.
- “Harbor”
means the “Harbor” entity or the Affiliate of a “Harbor” entity that executes the applicable Order Form.
- “Harbor Property”
means the Deliverables, Documentation, Services, Updates, and Upgrades.
- “Harbor Software”
means the Cloud Software and the On-Premises Software.
- “Initial Term”
means the period of time starting on the Effective Date and ending either (i) for Harbor Software, Vendor Software or Subscription Services, on the applicable date specified in the Order Form, or (ii) for Project Services, on the later of the applicable date specified in the Order Form or the date on which such Project Services are completed.
- “Intellectual Property Rights”
means all inventions, know-how, trade secrets, patents, patent rights, works of authorship and art, utility models, rights to inventions, copyrightable materials, copyright and related rights, moral rights, derivative works, trade marks and service marks, trade names, logos, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and all other intellectual property or proprietary rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals, continuations or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- “On-Premises Software”
means software for on-premises installation that is provided by Harbor and/or its Affiliates to Client pursuant to an applicable Order Form, but excludes Vendor Software.
- “Order Form”
means a mutually executed statement of work, order form or similar ordering document between Harbor and Client that references the Terms.
- “Order Term”
means the Initial Term and, as applicable, all Renewal Terms and all Vendor Software Renewal Terms.
- “Personal Data”
has the meaning given to such term in the DPA.
- “Personnel”
means the employees, non-employee workers, contractors, agents, consultants, and representatives of a Party and its Affiliates who are involved in the performance of such Party’s obligations under the Agreement.
- “Professional Services”
means Project Services and Subscription Services.
- “Project Services”
mean the services provided by Harbor and/or its Affiliates to Client pursuant to an Order Form, but excludes Subscription Services.
- “Receiving Party”
means the Party receiving or otherwise being provided access to Confidential Information of the Disclosing Party.
- “Resource”
means: (i) in the case of Harbor as Indemnitor, the Harbor Property; and (ii) in case of Client as Indemnitor, the Client Materials.
- “Services”
means the Professional Services and the Harbor Software.
- “Subscription Services”
means the services provided on a subscription basis by Harbor and/or its Affiliates to Client pursuant to an Order Form.
- “Third-Party Services”
means Third-Party Software, third-party application programming interfaces (APIs), Client’s systems and databases, and other third-party services or infrastructure (including, without limitation, client and document management systems).
- “Third-Party Software”
means a third-party software solution.
- “Update”
means bug fixes, patches, error corrections, workarounds and enhancements to/for the applicable Harbor Software that Harbor makes generally available to clients who subscribe to such Harbor Software as part of the fees specified in the Order Form, but excludes Upgrades.
- “Upgrade”
means any significant new functionality, improvement, or enhancement, new release, new version, or other formal release of the applicable Harbor Software that Harbor does not generally release to existing clients of the applicable Harbor Software without the payment of additional fees.
- “Usage Limitations”
has the meaning given to such term in the Order Form.
- “Vendor”
means any third-party supplier of Vendor Software.
- “Vendor Software”
means Third-Party Software resold by Harbor as specified in an applicable Order Form.
ACCESS
Access. Subject to Client’s compliance with the Agreement, Harbor grants Client a limited, non-exclusive, non-transferable, and non-sublicensable right to access and use the Services and the Deliverables specified in the applicable Order Form. No Deliverable constitutes a “work made for hire.” The Services and Deliverables may only be used (i) during the applicable Order Term (unless otherwise stated in the applicable Order Form), (ii) for Client’s internal purposes, and (iii) in accordance with the Agreement and, if applicable, then-current Documentation.
RESPONSIBILITIES; RESTRICTIONS
Performance. Harbor and/or its Affiliates shall provide the Services specified in the applicable Order Form.
Third-Party Services. Both Parties acknowledge that the Services and Deliverables may operate on, integrate with, or rely upon Third-Party Services. Harbor is not responsible or liable for (i) the operation, performance, or availability of any Third-Party Services, or (ii) any disruption, delay, failure, or unavailability of the Services and Deliverables caused by any Third-Party Services, or by any errors, omissions, unavailability or other faults of or in any Third-Party Services. Harbor makes no representations or warranties regarding Third-Party Services or third-party providers.
General Restrictions. Except as expressly permitted by the Agreement, Client shall not and shall not allow any third party to: (i) reverse engineer, decompile, disassemble, or attempt to discover the underlying technology of the Harbor Property; (ii) modify, translate, or create derivative works based on the Harbor Property; (iii) copy, rent, lease, distribute, sell, assign, or transfer rights to the Harbor Property; (iv) use the Harbor Property to benefit third parties not expressly contemplated by the Agreement; (v) remove or alter proprietary notices included in the Harbor Property; (vi) use the Harbor Property to build a competitive product or service; (vii) interfere with or disrupt the Services; (viii) bypass security measures used by Harbor; or (ix) “crawl,” “scrape,” or “spider” the Harbor Property or related data.
Cooperation.Client agrees to reasonably cooperate with Harbor by providing (and ensuring that Client’s third-party suppliers provide) timely access to necessary facilities, systems, resources, information, and personnel required for the Services. Harbor shall not be responsible for any delay caused by Client’s failure to perform the foregoing.
Compliance with Laws. Both Parties shall comply with applicable laws, rules, and regulations in connection with, as applicable to such Party, the delivery and use of the Services.
Background Investigations. Where legally permissible, Harbor shall have completed a background investigation, including criminal records, on all Harbor employees before allowing such employees to provide Services under this Agreement.
HARBOR SOFTWARE
Authorized Users. Client may only allow the number of Authorized Users specified in the applicable Order Form to access and use the Harbor Software. Each Authorized User must have their own individual account credentials, which may not be shared or transferred to others. Only Authorized Users may access or use the Harbor Software. The foregoing provisions of this Section 4.1 are not applicable to Harbor Software that is only accessible by Harbor (and not by, or on behalf of Client).
Security and Access. Except where Harbor Software is only accessible by Harbor (and not by, or on behalf of Client), Client is solely responsible for maintaining secure credentials and proper access permissions for the Harbor Software. Harbor disclaims liability for any data loss, corruption, or unauthorized access resulting from configuration by Client or Client’s credential management. If an Authorized User is no longer authorized to access or use the Harbor Software, or any credentials have been lost, stolen, compromised, or misused, Client shall promptly notify Harbor of the details and request deactivation of such credentials.
Client Responsibilities. Except as otherwise expressly stated in an applicable Order Form, Client is solely responsible for ensuring that its systems and software environments meet the hardware, software, and other applicable system requirements for any Harbor Software or Vendor Software. Client agrees to promptly implement all Updates provided by Harbor and acknowledges that failure to promptly install such Updates may increase security risks or vulnerabilities. Harbor shall have no responsibility or liability arising from Client’s delay or failure to apply any Updates.
On-Premises Software. On-Premises Software is also subject to the following terms and conditions:
License to Install and Use. Harbor grants Client a limited, non-exclusive, non-transferable, and non-sublicensable license during the applicable Order Term to install and use the On-Premises Software solely for Client’s internal purposes. Client must install and use the On-Premises Software in accordance with the Agreement, then-current Documentation, and any Usage Limitations.
Number of Copies. Unless otherwise specified in the applicable Order Form, Client may only install one (1) copy of the On-Premises Software. Client shall not copy, duplicate, or install additional copies of the On-Premises Software without Harbor’s prior written consent.
Attribution. Client shall not remove, obscure, or alter any Harbor attribution included in the On-Premises Software. All attribution shall remain in the format as delivered in the On-Premises Software.
Security. Unless otherwise provided in the applicable Order Form, Client is exclusively responsible for placing and using all On-Premises Software in a secure environment. Client agrees to implement and maintain industry-standard security measures to protect its systems and Client Materials.
VENDOR SOFTWARE
Access to Vendor Software. Client’s access to, and use of, the applicable Vendor Software shall be subject to the applicable End User Agreement(s), and Client shall comply with such End User Agreement(s).
Payment. Notwithstanding anything else, Client shall remain responsible for all amounts that are due and payable (and that continue to be due and payable after termination or expiration of the Agreement) to Harbor and all Vendors for any Vendor Software, including pursuant to an End User Agreement.
Fee Increases. With respect to any Vendor Software, on written notice to Client, Harbor may increase the fees for such Vendor Software if the applicable Vendor imposes an increase on Harbor.
Renewals. After the Initial Term, Client’s subscription to such Vendor Software shall renew in accordance with the End User Agreement and the applicable Order Form. Any such renewal term for Vendor Software is a “Vendor Software Renewal Term.”
FEES AND PAYMENT TERMS
Fees; Expenses; Payment. Client shall pay Harbor: (i) the fees specified in the applicable Order Form (the “Fees”); and (ii) all expenses approved by Client in writing and in advance (“Expenses”). Unless otherwise specified in the Order Form or disputed in accordance with Section 6.4, payments of Fees and Expenses will be due within thirty (30) days of Client’s receipt of invoice. Fees and Expenses are not subject to set-off and, except as otherwise expressly stated in the Agreement, are not cancelable.
Past Due Invoices. Past due invoices are subject to interest on any outstanding balance at a rate equal to the lesser of 1.5% per month or the maximum amount permitted by law.
Taxes. Client shall be responsible for all sales, use, value-added and similar taxes on the Fees and Expenses.
Disputed Amounts. In the event that any portion of the Fees or Expenses are disputed in good faith: (i) Client shall provide notice of the dispute (a “Dispute”) to Harbor in writing and in reasonable detail (a “Dispute Notice”) within thirty (30) days of Client’s receipt of the applicable invoice; and (ii) Client and Harbor shall work in good faith to resolve the dispute for up to thirty (30) days (“Resolution Window”) from the date of the Dispute Notice. If the Parties resolve such Dispute within the Resolution Window, and such resolution includes the payment of any Fees or Expenses initially disputed by Client, then such Fees and Expenses shall be due promptly after receipt of an updated invoice reflecting such amounts. If the Parties do not resolve such Dispute within the Resolution Window, then Harbor may suspend Client’s access to the Services in accordance with Section 6.5 until such Dispute is resolved.
Suspension of Services. Harbor may suspend Client’s access to the Services if: (i) Client has not paid all Fees and Expenses (other than amounts subject to an ongoing Dispute in accordance with Section 6.4) within thirty (30) days of receiving notice that Client’s account is past due; or (ii) a Dispute is not resolved within the Resolution Window pursuant to Section 6.4. Harbor shall not be responsible or liable for any loss, damage, or expense resulting from, or connected with, such suspension.
INTELLECTUAL PROPERTY
Client Materials. As between the Parties, Client shall retain all rights, title and interest (including all Intellectual Property Rights) in and to all Client Materials. Client grants Harbor a non-exclusive, worldwide, royalty-free license during the applicable Order Term to access, use, copy, modify, process, store, transmit, and display Client Materials solely as necessary to provide and maintain the Services and the Vendor Software in accordance with the Agreement. Client shall be solely responsible for the content, accuracy, quality, integrity, legality, and reliability of all Client Materials and shall maintain backup copies of all Client Materials.
Harbor Property. As between the Parties, Harbor retains all rights, title, and interest (including all Intellectual Property Rights) in and to the Harbor Property and all upgrades and modifications thereto. Client may provide feedback regarding the Harbor Property and hereby assigns any and all rights necessary for Harbor to freely use and exploit such feedback without any type of compensation or attribution to Client.
No Other Rights. No rights or licenses are granted by implication or otherwise, except those explicitly provided in the Agreement.
CONFIDENTIALITY
Confidential Information. The Receiving Party understands that the Disclosing Party has disclosed or may disclose Confidential Information of the Disclosing Party. The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) to give access to such Confidential Information solely to those Personnel with a need to have access thereto for purposes of the Agreement, provided that all such Personnel are bound by written or legal confidentiality obligations at least as restrictive as set forth herein, (iii) except as otherwise stated in the Agreement, to use Confidential Information only if and to the extent necessary to perform its obligations under the Agreement; and (iv) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the Receiving Party takes with its own Confidential Information, but in no event less than reasonable precautions to protect such Confidential Information.
Exclusions. The Disclosing Party agrees that Section 8.1 will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, (b) is in its possession or known by it without restriction prior to receipt from the Disclosing Party, (c) is rightfully disclosed to it without restriction by a third party, or (d) is independently developed without use of any Confidential Information of the Disclosing Party. Nothing in the Agreement will prevent the Receiving Party from disclosing the Disclosing Party’s Confidential Information pursuant to any applicable law or judicial, administrative, governmental, or other order, subpoena, summons, civil investigative demand, or similar legal process, provided that, where permitted by applicable law, the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure.
Return; Deletion. Upon request, the Receiving Party shall return or delete all Confidential Information of the Disclosing Party, subject to all (i) applicable laws and regulations, (ii) reasonable internal record-keeping policies and procedures, and (iii) ordinary course archiving or back-up systems. Any Confidential Information retained by the Receiving Party shall remain subject to this Section 8.
Equitable Relief. Each Party acknowledges that the unauthorized disclosure or use of Confidential Information may cause irreparable harm for which monetary damages might not be a sufficient remedy. Accordingly, without limiting any other available remedy, the Disclosing Party shall be entitled to seek specific performance and injunctive and other equitable relief in the event of a breach or threatened breach of this Section 8.
Usage Data. Harbor may collect and use technical usage data regarding Client’s use of the Services, including performance metrics, and diagnostic information (collectively, “Usage Data”), for purposes of operating, maintaining, improving, and developing the Services. Harbor may share Usage Data with third parties but only in de-identified form. Usage Data will not include any Client Materials.
DATA PROTECTION
Personal Data. To the extent applicable, each Party hereby agrees to comply with the DPA.
TERM AND TERMINATION
Agreement Term. The Agreement shall be and remain in effect throughout any Order Term, unless earlier terminated in accordance with this Section 10.
Order Form Term. An Order Form shall be and remain in effect throughout the applicable Order Term, unless terminated in accordance with this Section 10.
Automatic Renewals. To the extent permitted by applicable law, with respect to any Harbor Software and Subscription Services, after the applicable Initial Term, Client’s subscription to such Harbor Software and Subscription Services shall renew automatically for successive one-year periods (each a “Renewal Term”), unless either Party gives written notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or then-current Renewal Term. Harbor may increase the Fees for any Renewal Term. Harbor shall provide forty-five (45) days’ prior written notice of such an increase in Fees.
Termination for Breach. Either Party may terminate the Agreement for a material breach by the other Party that remains uncured thirty (30) days after the terminating Party provides the breaching Party notice of such breach.
Termination for Breach of End User Agreement. If Client commits a breach of an End User Agreement that permits the applicable Vendor to terminate such End User Agreement, then Harbor may also terminate any Order Form for the applicable Vendor Software. Harbor and/or the applicable Vendor shall provide notice in accordance with the terms of the End User Agreement.
Termination for Lack of Access. If any Services are dependent on Client having a valid right to access and/or use Third-Party Software, and Client does not have such right, then Harbor may terminate any Order for such Services on written notice to the Client.
Termination of Support. Harbor may terminate any Services relating to Third-Party Software on ninety (90) days’ prior written notice to Client if Harbor will no longer be permitted by the applicable vendor of such Third-Party Software to provide such Services.
Termination for Insolvency. Either Party may terminate the Agreement immediately upon notice if the other Party: (a) becomes insolvent or admits inability to pay its debts as they become due; (b) makes an assignment for the benefit of creditors; (c) becomes subject to any voluntary or involuntary proceeding under any bankruptcy, insolvency, or similar law seeking liquidation, reorganization, or other relief with respect to it or its debts, and such proceeding is not dismissed within sixty (60) days of filing; or (d) has a receiver, trustee, custodian, or similar official appointed for it or for all or substantially all of its assets.
Effects of Termination.
All provisions of the Agreement that by their nature should survive termination or expiration shall survive termination or expiration, including, without limitation, accrued payment obligations, ownership provisions, indemnity and limitations of liability.
On termination or expiration of an Order Form for Harbor Software: (i) Client’s right to access or use the Harbor Software shall end; (ii) with respect to On-Premises Software, Client shall permanently delete the On-Premises Software from any computer, network or other location to which it was installed; and (iii) with respect to Cloud Software, if applicable, Client shall have a period of thirty (30) days to use, at no additional charge, any export utilities included in such Harbor Software to export Client Materials.
On any termination by (i) Client under Section 10.4, or (ii) Harbor under Sections 10.5, 10.6, or 10.7, Harbor shall refund to Client all applicable prepaid, unused Fees relating to the period after the effective date of such termination.
INDEMNIFICATION
Indemnity. Each Party (“Indemnitor”) shall defend, indemnify, and hold harmless the other Party, its Affiliates and each of its and its Affiliates’ employees, directors, and representatives (collectively, the “Indemnitee”) from any claim, suit, action or proceeding brought against the Indemnitee by an unaffiliated third party (each, an “Action”) and all resulting liabilities, damages, and expenses (including reasonable attorneys’ fees) related thereto that are actually paid to an unaffiliated third party, to the extent the Action is based on a Resource infringing any Intellectual Property Rights of an unaffiliated third party.
IP Infringement Remedies. If the Harbor Property or any portion thereof becomes or may become subject to an Action, Harbor may, in its sole discretion and at its expense: (i) procure the right for Client to continue using the applicable Harbor Property; (ii) replace or modify the affected Harbor Property to eliminate the infringement while preserving substantially equivalent functionality; or (iii) if neither (i) nor (ii) is commercially feasible, terminate Client’s access to the affected portion of the Services and provide Client with a pro rata refund of any prepaid, unused Fees applicable to the terminated Services.
Exclusions. The obligations of Sections 11.1 and 11.2 do not apply to the extent the infringement of the third party’s Intellectual Property Rights was caused by: (i) combining a Resource with other products, processes or materials not provided or approved in writing by Indemnitor; (ii) use of a Resource not in accordance with the Agreement; (iii) use of an outdated release or version of a Resource after Indemnitor has provided an updated release or version of the Resource that is non-infringing; or (iv) where Harbor is Indemnitor, Client’s inputs or Harbor’s compliance with Client’s specifications or instructions.
Procedures. Each Indemnitor’s obligations under Section 11.1 shall be conditional upon Indemnitee not making any admission(s) relating to an Action and providing Indemnitor with: (i) prompt written notice of any Action; (ii) the option to assume sole control over the defense and settlement of any Action (provided that Indemnitee may participate in such defense and settlement on a non-controlling basis at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at Indemnitor’s expense). Indemnitor shall not enter into any settlement that involves a remedy other than the payment of money by Indemnitor without the prior written consent of Indemnitee, which shall not be unreasonably delayed or withheld.
Prejudice. Indemnitor shall have no obligation pursuant to Section 11 to the extent such Indemnitor is prejudiced by (i) Indemnitee’s failure to give Indemnitor sole control and authority to defend any Action, or (ii) Indemnitee’s failure or delay in notifying Indemnitor of an Action.
Entire Remedy. The forgoing provisions of this Section 11 state each Party’s entire remedy and entire liability for any claim of infringement of the Intellectual Property Rights of a third party.
WARRANTIES AND DISCLAIMERS
Harbor Warranties. Harbor represents and warrants:
it has the authority to enter into the Agreement;
the Professional Services shall be provided in a professional and workmanlike manner by qualified personnel;
the Deliverables shall materially conform to the specifications in the applicable Order Form;
the Harbor Software shall operate materially in conformance with the applicable Documentation; and
it will use commercially reasonable industry standard methods designed to ensure the Services and the Deliverables do not include any computer code or other instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof.
Client Warranties. Client represents and warrants: (i) it has the authority to enter into the Agreement; and (ii) it has all necessary rights and consents relating to Client Materials.
Third-Party Services. Harbor will have no obligation or responsibility under the Agreement for issues caused by, or by Client’s use of, any Third-Party Services.
General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12, THE SERVICES, VENDOR SOFTWARE, AND DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY, CONDITION, OR TERM OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, CONDITIONS, OR TERMS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES, CONDITIONS, OR TERMS IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITH RESPECT TO VENDOR SOFTWARE, THE FOREGOING SHALL NOT LIMIT ANY VENDOR WARRANTIES, CONDITIONS, OR TERMS IN THE APPLICABLE END USER AGREEMENT.
No Legal Compliance. HARBOR DOES NOT provide legal advice (INCLUDING VIA THE SERVICES), nor does its output constitute guidance on fulfilling professional or ethical obligations.
Sole Remedy for Breach of Warranty. To the extent permitted by law, in the event of a breach of Sections 12.1.2, 12.1.3, and/or 12.1.4, Harbor’s sole obligation, and Client’s sole and exclusive remedy, shall be for Harbor to use commercially reasonable efforts to correct such breach for no additional charge, provided that: (i) Client provides written notice within ten (10) business days or such other period as specified in the applicable Order Form (the “Acceptance Period”) after the date on which, as applicable, the Professional Services are performed, access to the Harbor Software is granted, or the Deliverables are delivered; (ii) the breach did not arise from compliance with Client’s specifications or instructions; and (iii) the breach is capable of being reasonably corrected. If notice is not received within the Acceptance Period, Client shall be deemed to have accepted, as applicable, the Professional Services, Harbor Software or Deliverables. The notice will specify and detail the breach, and Harbor will have a reasonable amount of time, based on its severity and complexity, to correct the breach. If the breach cannot be reasonably corrected, Client may terminate the applicable portion of the applicable Order Form for the Services and receive a pro-rata refund of any prepaid, unused Fees applicable to the terminated Services.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY, ANY OF ITS AFFILIATES, OR ANY OF ITS OR ITS AFFILIATES’ DIRECTORS, EMPLOYEES, AGENTS, OR PARTNERS HAVE ANY LIABILITY, UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM OR RELATING TO THE AGREEMENT OR ITS SUBJECT MATTER OR PERFORMANCE OR NON-PERFORMANCE, FOR: LOSS OF PROFITS; LOSS, LOSS OF USE, OR CORRUPTION OF DATA OR INFORMATION; LOSS OF OPPORTUNITY, ANTICIPATED SAVINGS, SALES OR BUSINESS; LOSS OF, OR DAMAGE TO, GOODWILL; OR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A PARTY, ITS AFFILIATES, AND ITS AND ITS AFFILIATES’ DIRECTORS, EMPLOYEES, AGENTS, AND PARTNERS, UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM OR RELATING TO THE AGREEMENT OR ITS SUBJECT MATTER OR PERFORMANCE OR NON-PERFORMANCE, EXCEED:
WITH RESPECT TO VENDOR SOFTWARE, THE FEES PAID BY CLIENT TO HARBOR FOR THE APPLICABLE VENDOR SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM(S); OR
WITH RESPECT TO ALL OTHER LIABILITY, ONE AND ONE-HALF (1.5) TIMES THE FEES (OTHER THAN FOR VENDOR SOFTWARE) PAID OR PAYABLE BY CLIENT TO HARBOR UNDER THE APPLICABLE ORDER FORM(S) GIVING RISE TO THE CLAIM(S).
NOTWITHSTANDING SECTION 13.2, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A PARTY, ITS AFFILIATES, AND ITS AND ITS AFFILIATES’ DIRECTORS, EMPLOYEES, AGENTS, AND PARTNERS, UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM OR RELATING TO THE AGREEMENT OR ITS SUBJECT MATTER OR PERFORMANCE OR NON-PERFORMANCE, EXCEED TWO MILLION U.S. DOLLARS ($2,000,000).
SECTIONS 13.2 AND 13.3 SHALL NOT APPLY TO (I) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, (II) A PARTY’S GROSS NEGLIGENCE, (III) A PARTY’S WILLFUL MISCONDUCT, OR (IV) CLIENT’S BREACH OF SECTION 2.1.
NOTHING IN THE AGREEMENT LIMITS: (I) CLIENT’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT; OR (II) ANY LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
NOTICE
All notices under the Agreement will be in writing and sent to the address or email address set forth in the applicable Order Form (with, in the case of Harbor, a copy to [email protected]), or in each case, at such other address as may be given in writing by either party to the other in accordance with this Section, and will be deemed to have been duly given when received, if personally delivered; when receipt is confirmed, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested).
MISCELLANEOUS
Subcontracting. Harbor shall have the right, in its sole discretion, to subcontract its rights and responsibilities under the Agreement to any third party, including all sub-processors authorized pursuant to the DPA, provided that Harbor shall remain responsible to Client for the performance of any such third party.
Non-Solicitation. During the term of each Order Form, and for a period of six (6) months following its expiration or termination, Client will not and will not attempt to, directly or indirectly, solicit, entice away, or otherwise engage or induce any Harbor Personnel (including former Personnel) who were involved in providing the Services, including on an independent contractor basis. Notwithstanding the foregoing, the restrictions in this Section shall not apply to general public solicitations or advertisements not specifically targeted at any Harbor Personnel or to the hiring of any Harbor Personnel who respond to such general public solicitations or advertisements.
Entire Agreement. The Agreement constitutes the entire agreement between Client and Harbor regarding its subject matter and supersedes all prior or contemporaneous agreements or communications, whether oral, written, or electronic. Other than as expressly stated in the Agreement, neither Party relied on, nor shall either Party be bound by, or have remedies in respect of, any statements, conditions, definitions, warranties, understandings, assurances or representations with respect to such subject matter. Neither Party shall have any claim for innocent or negligent misrepresentation based on any statements in the Agreement.
Conflict. In the event of a conflict between the terms of the Agreement, the order of precedence shall be as follows: (i) provisions of an Order Form that expressly override the Terms by specific reference to the applicable section of the Terms being overridden; (ii) a Schedule to the Terms (if such Schedule is applicable pursuant to Section 15.7); (iii) the remaining provisions of the Terms; and (iv) the remaining provisions of an Order Form. The Parties agree that no conflicting or additional terms or conditions in, or incorporated into, any Client purchase order or similar Client document shall apply to the Parties or prevail over, or add to, the terms of the Agreement.
Assignment. Neither Party may assign the Agreement, in whole or in part, without the other Party’s prior express written consent, which shall not be unreasonably delayed or withheld. Any attempted assignment without the other Party’s prior written consent shall be void. Notwithstanding the foregoing, a Party may assign the Agreement and the rights and/or obligations under the Agreement without the other Party’s consent: (a) to one or more Affiliates; and/or (b) in connection with any merger, acquisition, sale of assets or other corporate restructuring. The Agreement shall be binding upon and shall inure to the benefit of all permitted successors and assigns.
Governing Law; Dispute Resolution.
The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation shall be governed by and construed in accordance with the laws stated in the table below, excluding any conflict of laws rules. Exclusive jurisdiction to settle any dispute, controversy or claim (including any non-contractual dispute, controversy or claim) arising out of, or in connection with, the Agreement or its subject matter, formation or breach shall be only in the courts stated in the table below.
| If the address for Harbor in the applicable Order Form is in: | The governing law is: | The exclusive jurisdiction is: |
|---|---|---|
| Australia | Victoria, Australia | Courts of Victoria, Australia |
| Canada | Province of Ontario and controlling Canadian federal law | Provincial or federal court with competent jurisdiction in Toronto, Ontario |
| The United Kingdom | England and Wales | Courts of England and Wales |
| The United States | State of Delaware and controlling Unites States of America federal law | State or federal court with competent jurisdiction in New Castle County, Delaware |
Schedules. If the Agreement is governed by: (i) the law of England and Wales, then Schedule 1 shall apply; and (ii) the law of any State in Australia, Schedule 2 shall apply. Neither Schedule 1 nor Schedule 2 shall apply in any other circumstance.
Amendment; Waiver. Except as otherwise provided herein, no modification or amendment of any provision of the Agreement shall be effective unless agreed by both Parties in writing, and no waiver of any provision of the Agreement shall be effective unless in writing and signed by the waiving Party.
Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations under the Agreement to the extent caused by a Force Majeure Event. The affected Party shall provide the other Party prompt notice of any Force Majeure Event affecting its performance under the Agreement and shall make commercially reasonable efforts to resume performance or partial performance as soon as possible. The Party not affected by the Force Majeure Event shall have the right to terminate the Agreement if the Force Majeure Event continues for a period of thirty (30) days or longer.
Enforceability. If any provision or part-provision of the Agreement is held to be unenforceable or invalid, that provision or part-provision shall be limited or eliminated to the extent necessary so that the Agreement shall otherwise remain in full effect and enforceable.
Independent Contractor. Harbor is acting as an independent contractor to Client under the Agreement. Harbor shall not be deemed to be an employee, worker, agent, joint venturer or partner of Client, and Harbor will determine the method, details and means of performing its obligations under the Agreement.
Waiver of Jury Trial. The Parties waive any right to a trial by jury in the event of any dispute, controversy or claim (including any non-contractual dispute, controversy or claim) arising out of, or in connection with, the Agreement or its subject matter, formation or breach.
Counterparts. The Agreement, including an Order Form and any amendments, waivers, consents or supplements thereto, may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of the Agreement by facsimile or by e-mail in a portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of the Agreement.
Interpretation.
Each Order Form forms part of the Agreement and shall not form a separate contract.
Section headings shall not affect the interpretation of the Agreement.
Any schedule to, or document incorporated by reference (including hyperlink) into, the Terms forms part of the Terms and shall have effect as if set out in full in the body of the Terms. Any reference to the Terms includes such schedules and documents.
A reference to the Agreement or to any other agreement or document referred to in the Agreement is a reference to the Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of the Agreement) from time to time.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under such statute or statutory provision.
References to sections are to sections of the Terms.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural, and words in the plural shall include the singular.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes email.
Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
Schedule 1: Addendum for the United Kingdom
This Schedule 1 shall apply only if the Agreement is governed by the law of England and Wales.
Section 12.4 (General Disclaimer) of the Terms shall be deleted in its entirety and replaced with the following:
General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12, OR IMPLIED BY SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982 (TITLE AND QUIET POSSESSION), THE SERVICES, VENDOR SOFTWARE, AND DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY, CONDITION OR TERM OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, CONDITIONS OR TERMS OF TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES, CONDITIONS OR TERMS IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITH RESPECT TO VENDOR SOFTWARE, THE FOREGOING SHALL NOT LIMIT ANY VENDOR WARRANTIES, CONDITIONS OR TERMS IN THE APPLICABLE END USER AGREEMENT.”
Sections 13.4 and 13.5 of the Terms shall be deleted in their entirety and replaced with the following:
SECTIONS 13.2 AND 13.3 SHALL NOT APPLY TO (I) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, OR (II) CLIENT’S BREACH OF SECTION 2.1.”
NOTHING IN THIS AGREEMENT LIMITS: (I) CLIENT’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT; OR (II) ANY LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW, INCLUDING (1) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR (2) FRAUD OR FRAUDULENT MISREPRESENTATION.”
The following provision shall be added as new Section 15.15 of the Terms:
Third Party Rights.”
Subject to the provisions of Section 15.15.2, the Parties agree that the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.”
Each Affiliate shall be entitled to rely on and enforce the provisions of the Agreement that relate to or benefit the Affiliate.”
The rights of the Parties to rescind or vary the Agreement are not subject to the consent of any other person.”
Schedule 2: Addendum for Australia
This Schedule 2 shall apply only if the Agreement is governed by the laws of any State in Australia.
The definition of “Affiliate” in Section 1.1 of the Terms shall be deleted in its entirety and replaced with the following:
- “‘Affiliate’
means a related body corporate as defined under the Corporations Act 2001.”
The definition of “Clients Materials” in Section 1.1 of the Terms shall be amended to remove “, or Vendor Software” from that definition.
The definition of “Cloud Software” in Section 1.1 of the Terms shall be amended to remove “, but excludes Vendor Software” from that definition.
The definition of “DPA” in Section 1.1 of the Terms shall be deleted in its entirety and replaced with the following:
- “‘DPA’
means the data privacy addendum available at https://harborglobal.com/legal/data-privacy-addendum-australia/”
The definition of “Effective Date” in Section 1.1 of the Terms shall be amended to remove “, or Vendor Software” from that definition.
The definition of “End User Agreement” in Section 1.1 of the Terms shall be deleted in its entirety.
The definition of “Initial Term” in Section 1.1 of the Terms shall be amended to remove “, Vendor Software” from that definition.
The definition of “On-Premises Software” in Section 1.1 of the Terms shall be amended to remove “, but excludes Vendor Software” from that definition.
The definition of “Order Term” in Section 1.1 of the Terms shall be amended to remove “and all Vendor Software Renewal Terms” from that definition.
The definitions of “Vendor” and “Vendor Software” in Section 1.1 of the Terms shall be deleted in their entirety.
The following new definitions shall be added to Section 1.1 of the Terms:
- "’Australian Consumer Law’
means Schedule 2 of the Competition and Consumer Act 2010 (Cth).”
Section 4.3 (Client Responsibilities) of the Terms shall be amended to remove “or Vendor Software” from the first sentence of that provision.
Section 5 (Vendor Software) of the Terms shall be deleted in its entirety and replaced with the following:
INTENTIONALLY OMITTED.”
Section 6.3 (Taxes) of the Terms shall be deleted in its entirety and replaced with the following:
Taxes. Unless otherwise expressly stated in the Agreement, all Fees, Expenses or other sums payable under or in accordance with the Agreement are exclusive of GST. If GST is imposed on any Supply made under or in accordance with the Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment. Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with the Agreement. For the purposes of this Section 6.3: (i) ‘GST Act’ means A New Tax System (Goods and Services Tax) Act 1999; (ii) the expressions GST, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the GST Act; and (iii) Supplier means any party treated by the GST Act as making a Supply under the Agreement.”
Section 7.1 (Client Materials) of the Terms shall be amended to remove “and the Vendor Software” from the second sentence of that provision.
Section 10.3 (Automatic Renewals) of the Terms shall be deleted in its entirety and replaced with the following:
Intentionally Omitted.”
Section 10.5 (Termination for Breach of End User Agreement) of the Terms shall be deleted in its entirety and replaced with the following:
Intentionally Omitted.”
Section 10.9.3 of the Terms shall be deleted in its entirety and replaced with the following:
On any termination by (i) Client under Section 10.4, or (ii) Harbor under Sections 10.6 or 10.7, Harbor shall refund to Client all applicable prepaid, unused Fees relating to the period after the effective date of such termination.”
Section 12.4 (General Disclaimer) of the Terms shall be deleted in its entirety and replaced with the following:
General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY, CONDITION, OR TERM OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, CONDITIONS, OR TERMS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES, CONDITIONS, OR TERMS IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.”
The following provision shall be added as new Section 12.7 of the Terms:
Application of Statutory Guarantees. Nothing in the Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on Client by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified. To the extent permitted by law, Harbor's liability for a breach of a non-excludable guarantee is limited, at Harbor's option, to: (a) in the case of goods – the replacement of the goods or the supply of equivalent goods, the repair of the goods, payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired, and (b) in the case of services – the supplying of the services again or payment of the cost of having the services supplied again.”
Section 13.2 of the Agreement shall be deleted in its entirety and replaced with the following:
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A PARTY, ITS AFFILIATES, AND ITS AND ITS AFFILIATES’ DIRECTORS, EMPLOYEES, AGENTS, AND PARTNERS, UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM OR RELATING TO THE AGREEMENT OR ITS SUBJECT MATTER OR PERFORMANCE OR NON-PERFORMANCE, EXCEED ONE AND ONE-HALF (1.5) TIMES THE FEES PAID OR PAYABLE BY CLIENT TO HARBOR UNDER THE APPLICABLE ORDER FORM(S) GIVING RISE TO THE CLAIM(S).”
Sections 13.4 and 13.5 of the Terms shall be deleted in their entirety and replaced with the following:
SECTIONS 13.2 AND 13.3 SHALL NOT APPLY TO (I) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, OR (II) CLIENT’S BREACH OF SECTION 2.1.”
NOTHING IN THIS AGREEMENT LIMITS: (I) CLIENT’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT; OR (II) ANY LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW, INCLUDING (1) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR (2) FRAUD OR FRAUDULENT MISREPRESENTATION.”
The following provision shall be added as new Section 13.6 of the Terms:
Affiliate Restrictions. The liability, exclusions and limitations specified in the Agreement apply to all losses (in the aggregate) suffered or incurred by Client, its directors, employees, agents, and partners, and its Affiliates and its Affiliates’ directors, employees, agents, and partners (collectively, ‘Client Parties’). Client must ensure Client Parties (other than Client) do not bring any claim directly against Harbor, its Affiliates, or its or its Affiliates’ directors, employees, agents, or partners in connection with the Agreement. All claims made in respect of any losses suffered by a Client Party may only be brought by Client and will be subject to these exclusions and limitations. Client will indemnify Harbor against any claim made against Harbor by any Client Party in contravention of this clause.”