Harvest BI Terms of Service
- Agreement. By using the Harvest Food Solutions LLC (“Harvest”) Business Intelligence (“BI”) application, software or portal (each, a “Harvest BI Solution”), you (“Customer”) agree to be bound by these Terms of Service and all exhibits and appendices hereto (collectively, the “Agreement”). Customer may only use the Harvest BI Solution in strict compliance with the terms of this Agreement, and Customer’s use of any Harvest BI Solution signifies Customer’s assent to be bound by the terms of this Agreement. If Customer does not agree to be bound by all of the terms of this Agreement, then Customer may not use any of the Harvest BI Offerings (as defined below), and Customer must immediately inform Harvest of its decision prior to Customer’s first use of any Harvest BI Solution.
- License. Subject to Customer’s strict compliance with the terms of this Agreement, Harvest grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the Harvest BI Solution for the Term in the Territory only in accordance with the terms of this Agreement, and all other Harvest policies and third-party policies and agreements specifically referenced in this Agreement. This license is a personal license limited to only Customer and its Users, and may not be used or accessed by any Affiliate of Customer or any other third-party unless such Affiliate or third-party enters into a separate Agreement with Harvest. “User” means Customer, Customer’s employees or service providers or any third party/person accessing the Harvest BI Offerings at Customer’s direction or in furtherance of Customer’s business or interest. If Customer desires to add or change a license for any User, it shall submit such request to Harvest, and Harvest shall add or change the license for such User in the Harvest BI Solution for Customer. Customer acknowledges that it has not relied on the future availability of any new programs, services, functionality, features or updates (“Future Updates”) in the Harvest BI Solution and Customer will ensure that its Users acknowledge that they have not relied on the availability of Future Updates. “Affiliate” means any entity that controls, is controlled by, or is under common control with, another entity. An entity “controls” another if it owns directly or indirectly a sufficient voting interest to elect a majority of the directors or managing authority or otherwise direct the affairs or management of the entity. “Territory” means the Untied States of America, Canada and Mexico, and their territories.
- Harvest will provide Customer with a written quote (“Quote”) that sets forth fees for the Harvest BI Solution. Harvest may also elect to include in the Quote certain fees for training, implementation, products, support or other services (together with the Harvest BI Solution, collectively, the “Harvest BI Offerings”). Harvest may elect, in its sole discretion, to provide a subsequent statement of work (“SOW”) with respect to any licenses, sales, software, hardware, services or products set forth in any Quote. In the event of any conflict between any Quote and any SOW, the terms of the SOW shall govern and prevail. Customer is responsible for timely payment of all fees (“Fees”) and costs and expenses (“Costs”) set forth in the Quote, or SOW (if applicable). Any payment by Customer of any Fees or Costs made more than thirty (30) days following the date on which such payment is due shall accrue interest at a rate of 1.5% per month, or the maximum interest rate permitted under the law, whichever is less.
- The license to use the Harvest BI Solution shall be billed on a monthly basis. The calculation of fees and billing may vary from month-to-month, based on changes made by software licensors and providers. Harvest will provide Customer with notice of such Fee or Cost increase prior to the first invoice that reflects such change.
- Services. Harvest may agree to undertake certain implementation, training, support or other services (collectively “Services”), as more particularly set forth in the Quote, or any SOW issued by Harvest that arises from the Quote, on condition that Customer is in compliance with its obligations arising under this Agreement. Harvest shall not be required to provide any Services unless specifically set forth in the Quote or SOW. Any support Services shall only be provided by Harvest to Customer in accordance with the applicable Harvest support plan (“Support Plan”), and the scope, terms and conditions of those support Services shall be as set forth in the particular Harvest Support Plan and Harvest Services and Support Agreement, if any.
- IP Ownership; Third-Party Licenses. As between Customer and Harvest, Harvest owns all right, title and interest in and to the Harvest BI Offerings. Certain components of the Harvest BI Solution are owned by third parties, under license to Harvest, and Harvest does not provide Customer with any rights that are broader than those licensed to Harvest by such third parties. Customer may provide certain suggestions or feedback (“Feedback”) to Harvest for improvements or modifications to any of the Harvest BI Offerings. To the extent that Customer provides any Feedback to Harvest, Customer hereby assigns to Harvest all right, title and interest in and to such Feedback. Harvest shall be the sole owner of any such Feedback. Customer is responsible for the accuracy, quality, and legality of any content provided by Customer in its use of the Services (“Customer Content”), and for the means by which Customer acquired any content delivered to Harvest. Customer warrants that Customer Content does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of publicity and privacy. Customer agrees to prohibit its users from uploading or delivering materials in violation of the intellectual property rights of any party or entity to Harvest.
- Prohibited Uses. Customer shall not, and shall not allow any of its employees, contractors or Users, to: (a) change, alter or modify the Harvest BI Solution; (b) permit any third party to display, exhibit or otherwise exploit any Harvest Offering, in any medium in any manner; (c) pledge, lien or otherwise encumber any Harvest Offering, or otherwise rent, lease, sell, sublicense or transfer copies of the Harvest BI Solution to any third-party; (d) reverse engineer, disassemble, decompile, translate, reconstruct, transform, port, tamper with, repair creative derivative works from, or extract the Harvest BI Solution, or attempt to do the same; (e) defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing any Harvest BI Solution use, tracking, identification, encryption or security protocols; (f) apply any process or procedure to the Harvest BI Solution that is intended to derive the source code, object code, algorithms, equations or formulas of any technology included in the Harvest BI Solution; (g) remove, modify or alter, or attempt to remove, modify or alter, any notice of copyright, trademark, or other intellectual property right, or any metadata or systems for tracking, analyzing or identifying metadata, or other identifying information, from any place where it is on or embedded in the Harvest BI Solution; (h) release the results of any performance or functional evaluation of any of the Harvest BI Offerings to any third party without prior written approval of Harvest for each such release; (i) do any act, or omit to do any act, that violates the terms of any license for third-party software integrated into or related to the Harvest BI Solution, or upon which the Harvest BI Solution relies; (j) resell or sublicense the Harvest BI Solution; (k) obtain unauthorized access to the Microsoft Software or Harvest BI Offerings; or (l) by action or omission, use, display, perform, distribute, exhibit, or otherwise exploit any of the Harvest BI Offerings in any manner that expands upon the limited scope of the license granted in this Agreement, or that is inconsistent or in conflict with the terms of this Agreement and Customer’s covenants, representations and warranties hereunder.
- Third-Party Hardware and Software. The Harvest BI Solution incorporates or relies upon certain third-party technologies, including certain hardware and software. Any hardware provided by Harvest to Customer shall be governed by and subject to a separate Hardware Agreement between Harvest and Customer (“Hardware Agreement”).
- Accounts. Customer may be required to download a client app, or visit an internet portal or site, through which Customer or its Users may access the Harvest BI Offerings and set up accounts including issuance or authentication credentials. In operating Customer or User accounts, Customer and its Users must: (i) maintain strict confidentiality of User names, passwords or other credentials; (ii) not allow others to use Customer credentials or access Customer account; (iii) not allow another User to use a User’s credentials or access such User’s account; (iv) immediately notify Harvest of any unauthorized use or breach of security related to Customer’s or any of its Users’ accounts; (v) submit only complete and accurate information; and (vi) maintain and promptly update information if it changes. Harvest may use rights management features (e.g. lockout) to prevent unauthorized use.
- Term and Termination. The Agreement commences on the date set forth in the Quote or SOW (if applicable) and shall continue for the duration set forth in the Quote or SOW (if applicable), unless earlier terminated in accordance with the Agreement. Harvest may terminate this Agreement and all of the licenses granted and obligations undertaken by Harvest: (a) immediately upon sending written notice if Customer is insolvent, cannot pay Harvest’s bills as they become due, or attempts to obtain protection from creditors or wind down operations; (b) immediately upon sending written notice if Customer’s use is fraudulent, creates a reasonable security risk, infringes third-party rights, if Customer’s continued use may subject Harvest to third-party liability, or Harvest ceases making the Harvest BI Solution generally available to third parties; (c) upon thirty (30) days’ notice if Harvest receives notice of termination from any third-party licensor, which licensor’s technology is incorporated into the Harvest BI Solution; and (d) immediately if Customer is otherwise in material breach of this Agreement of any Microsoft or Infor terms, policies or agreement, and fails to cure within seven (7) days of sending written notice from Harvest. Upon termination or expiration, Customer’s access (and its Users’ access) to the Harvest BI Offerings, Birst Software and Microsoft Software shall immediately terminate and Customer must pay all amounts due. Harvest reserves the right to suspend Customer’s access (or any of its User’s access) at any time without notice in the event that Harvest believes such use poses a security risk to the Harvest BI Solution, or that such use is fraudulent or infringes any third-party rights. Sections 5, 6, 7, 10, 11, 12, 13 and 14 of this Appendix shall survive the termination or expiration of this Agreement.
- Warranty, Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT THE HARVEST OFFERINGS ARE PROVIDED WITH NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HARVEST EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS INCLUDING MERCHANTABILITY AND FITNESS FOR PURPOSE. HARVEST DOES NOT WARRANT THAT THE HARVEST BI OFFERINGS WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ANY OF THE HARVEST BI OFFERINGS WILL OPERATE WITHOUT INTERRUPTION, OR BE ERROR FREE.
- Compliance. Customer must comply with all laws and regulations applicable to Customer’s use of the Harvest BI Offerings, including without limitation data privacy or localization, anti-bribery and export control laws (i.e. export to embargoed, prohibited or restricted countries or access by prohibited, denied or designated persons) and Customer’s rights to use the Harvest BI Offerings are subject to such compliance.
- Other Terms. This Agreement is subject to the terms of the Master Services Agreement between Harvest and Customer (the “MSA”). In the event of conflict or material inconsistency between the terms set forth in any Harvest Quote or SOW, this Agreement (including its addendums or appendices), the MSA or any policy, them with respect to the Harvest BI Offerings, the following order of priority/precedence shall apply: (a) the terms of any Quote or SOW issued by Harvest shall prevail over the terms of this Agreement, the MSA, the HPP or any other policies; (b) the terms set forth in the HPP shall govern over the terms in this Agreement, the MSA or any other policies; (c) the terms set forth in this Agreement shall govern over the terms in the MSA or any policies (other than the HPP); and (d) the MSA shall govern over any other policies. In the event that Customer purchases a Support Plan, the terms of the applicable Support Plan and support agreement shall govern and prevail over this Agreement with respect to the provision of such support Services.
Birst Minimum End User Terms
- Access Rights; Restrictions.
1.1 Access. Subject to Customer’s compliance with the terms and conditions of this Agreement, Harvest provides Customer and its Users access to and use of the Birst software, programs and solutions (collectively, “Birst Solution”) only as incorporated into, or bundled with, the Harvest BI Solution (“Integrated Solution”), during the term of the Agreement.
1.2 Restrictions. Customer will not (and will not allow any User or third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Birst Solution; (ii) modify, translate, or create derivative works based on the Birst Solution; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Birst Solution; (iv) use the Birst Solution for timesharing or service bureau purposes or otherwise for the benefit of a third party (excepting Customer’s Users as part of the purpose contemplated in Section 1.1 above); (v) remove or otherwise alter any proprietary notices or labels from the Birst Solution or any portion thereof, (vi) use the Birst Solution to create any other product or service; or (vii) for any prohibited use set in the Agreement. Customer will use the Birst Solution only in compliance with (i) the Agreement (and this Exhibit), (ii) the rights granted hereunder, and (iii) in accordance with all applicable laws and regulations.
1.3 Ownership. Except for the rights expressly granted under this Section 1, Birst retains all right, title, and interest in and to the Birst Solution (and all data, software, products, works, and other intellectual property created, used, or provided by Birst for the purposes of this Agreement). To the extent Customer provides Harvest or Harvest’s licensors with any feedback relating to the Birst Solution (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Birst shall own all right, title and interest in and to such Feedback (and Customer hereby makes all assignments necessary to achieve such ownership).
- Confidentiality. During the term of the Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Birst Solution and terms of this Agreement are Confidential Information of Birst. Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, (a) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as this Agreement and (b) all Feedback shall be solely Birst’s “Confidential Information.”
- Termination. The license granted under this Exhibit A (the “License”) is effective for the duration indicated in the Agreement, unless terminated earlier. Harvest may immediately terminate this License in the event Customer or any of its Users violate any of the terms of this Exhibit A. Upon termination of the License, Customer shall cease using the Birst Solution and documentation and either return the Birst Solution and documentation to Harvest or destroy all copies of the Birst Solution and documentation.
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIRST HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, REGARDING THE USE AND RESULTS OF THE BIRST SOLUTION, OR THAT USE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER.
- Liability Limitations. TO THE EXTENT NOT PROHIBITED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, BIRST WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) DIRECT DAMAGES; (II) ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS; (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; (IV) LOSS, INACCURACY, OR CORRUPTION OF DATA OR INTERRUPTION OF USE; (V) ANY MATTER BEYOND ITS REASONABLE CONTROL. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Defined Terms. All capitalized terms not defined in this Exhibit A have the meaning set forth in the Agreement to which it is attached.