Effective as of the 1st of June 2019.
This Harvest Online Customer Agreement (“Agreement“) is entered into by and between Harvest by Grain BV (“Harvest“) and the entity or person placing an order for or accessing the Service (“Customer“ or “you“). This Agreement consists of the terms and conditions set forth below and any Harvest ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms“). If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company. The “Effective Date“ of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
You acknowledge and agree that Harvest may modify the terms and conditions of this Agreement at any time in accordance with Section 12 (Modifications to Agreement). By indicating your acceptance of this agreement or accessing or using the service, you are agreeing to be bound by all terms, conditions, and notices contained or referenced in this agreement. If you do not agree to this agreement, please do not use the service. For clarity, each party expressly agrees that this agreement is legally binding upon it.
1. HARVEST SERVICE
The Service acts as a central hub for Customer Data, allowing Customer to collect Customer Data from its selected sources (“Sources“), such as its own or third-party websites or customer applications, and send the Customer Data to Customer’s chosen destinations (“Destinations“), such as Customer’s databases, its accounts with third-party applications or services or Harvest’s tools, for Customer’s further use. The supported Sources and Destinations are identified in the Documentation. As further described below and in the Documentation, Customer maintains control over which Sources and Destinations it uses with the Service, as well as the types and content of Customer Data it shares between its Sources and Destinations.
1.2. Harvest Code
For Sources owned or controlled by Customer (“Customer Properties“), Customer will enable the collection of Customer Data by implementing Harvest Code on the Customer Properties.
“Customer Data“ means any data that Customer submits to the Service, including data that it collects from Customer Properties or retrieves from other Sources through the Service. “Documentation“ means the end user technical documentation provided with the Service, as may be modified from time to time. “Order Form“ any Harvest ordering documents, online registration, order descriptions or order confirmations referencing this Agreement. “Service“ means the specific Harvest proprietary hosted service solution(s) specified on an Order Form, including the Harvest dashboard and any related Harvest Code and API(s).
1.4. Access to the Service
1.5. Use Restrictions
Customer shall not, without written consent from Harvest, (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Service to a third party; (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) use or attempt to use the Service for competitive analysis or benchmarking; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Harvest); (e) copy, modify or create any derivative work of the Service or any Documentation; (f) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); or (g) publicly disseminate information regarding the performance of the Service.
1.6. Storage and Processing of Customer Data
Harvest may store certain Customer Data submitted from Sources to enable various features and functionality of the Service. Customer acknowledges that Customer Data transmitted through the Service may be stored and processed by Harvest in the United States or in other countries in which Harvest or its subcontractors maintain facilities.
2. SERVICE PLANS AND BETA RELEASES
2.1. Service Plans
Harvest makes available the Service through a free “Developer” plan (“Developer Plan“), and paid plans (“Paid Plans“). Current plans are described at and Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Service. Customer’s permitted scope of use – such as features available, permitted number of monthly User Interactions (MUIs) and other usage limits – depends on the plan that Customer selects and will be specified on the applicable Order Form.
2.2. Paid Plans
Paid Plans are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term“). Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods), except for monthly plans, where a seven (7) day notice of termination is applicable.
2.3. Developer Plans
(a) Developer Plans. If Customer receives access to the Service through a Developer Plan, then Customer may use the Service in accordance with the terms and conditions of this Agreement for so long as Harvest chooses to offer the Developer Plan. (b) Special Terms. Developer Plans may not include all features or functionality offered as part of Paid Plans, and Harvest reserves the right to add or subtract any features or functionality at any time for such plans. Harvest has the right to suspend or terminate a Developer Plan or Trial Plan at any time for any reason.
2.4. Beta Releases
From time to time, Harvest may grant Customer access to “alpha”, “beta”, or other early-stage products (“Beta Releases“). While Harvest may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement, Customer agrees that any beta release is provided on an “as is” and “as available” basis. Customer further acknowledges and agrees that beta releases may not be complete or fully functional and may contain bugs, errors, omissions, and other problems for which harvest will not be responsible. Accordingly, any use of a beta release is at customer’s sole risk. Harvest makes no promises that future versions of a Beta Release will be released. Harvest may terminate Customer’s right to use any Beta Release at any time for any reason or no reason in Harvest’s sole discretion, without liability.
3. FEES AND PAYMENT
3.1. Fees and Payment
All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: for Paid Plans, Customer will pay all fees by advance prepayment of each month on the basis of an authorization for payment given to Harvest by Customer. Except as expressly set forth in Section 12 (Modifications to Agreement), all fees are non-refundable. Harvest reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Harvest. In case of late or non-payment Harvest will suspend access to the Service per the first day of the next month. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, Harvest will charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees immediately at the end of a month in which the excess usage appears, on the basis of an authorization for payment given to Harvest by Customer.
4. CUSTOMER OBLIGATIONS
4.1. Data Collection
Subject to this Agreement and as further described in the Documentation, Customer may configure the Customer Data elements to be collected from Sources and shared with different Destinations. In some instances, as referenced in the Service dashboard and Documentation, enabling a third-party Source involves implementing the third-party provider’s own SDK or code on Customer Properties. As a result, in these cases, certain default data designated by that Source’s provider may be sent directly to Customer’s accounts with that Source, rather than passing through the Service.
4.2. Rights in Customer Data
Customer is solely responsible for the accuracy, content and legality of all Customer Data and agrees to comply with all applicable Laws in its use of the Service. Customer represents and warrants to Harvest that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting Harvest the rights in Section 6.1), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations. By enabling use of the Service with any Source or Destination, Customer authorizes Harvest to access Customer’s accounts with such Source or Destination for the purposes described in this Agreement. Harvest may also disclose that Customer is a customer of Harvest and related technical Service data to providers of third-party Sources and Destinations used by Customer with the Service.
4.3. No Sensitive Personal Information
Customer specifically agrees not to use the Service to collect, store, process or transmit any Sensitive Personal Information.
4.4. Indemnification by Customer
Customer shall indemnify, defend and hold harmless Harvest from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Sections 4.2 (Rights in Customer Data) or 4.3 (No Sensitive Personal Information). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Harvest at Customer’s expense.
Harvest agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Data. However, Harvest shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Harvest’s control.
6.1. Customer Data
As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Harvest. Subject to the terms of this Agreement, Customer hereby grants to Harvest a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Service to Customer.
6.2. Harvest Technology
This is a subscription agreement for access to and use of the Service. Customer agrees that Harvest or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the Service or any Harvest technology are granted to Customer.
Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Harvest product or service to Harvest (“Feedback“). Harvest may freely use or exploit Feedback in connection with any of its products or services.
6.4. Aggregated Anonymous Data
Notwithstanding anything to the contrary herein, Customer agrees that Harvest may obtain and aggregate technical and other data about Customer’s use of the Service that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data“), and Harvest may use the Aggregated Anonymous Data to analyze, improve, support and operate the Service and for distribution in general benchmarking data and industry reports.
The Harvest Identity Terms (“Identity Terms“, art. 6.5 to art. 6.9) apply to Customer’s use of Harvest’s “Identity” service.
Identity is a tool for Harvest’s Service. Using the Customer Data already collected through the Service, Identity allows Customer to build profiles of the users of the Customer Properties and to analyse and classify its users based on Customer-defined traits and audiences. Customer may also use Identity to send its user profiles, traits and audiences to its own or third-party Destinations (e.g., an A/B testing or personalization platform) for further use by Customer. Features of Identity are further described in the applicable Order Form or Documentation.
Harvest will provide Customer with access to Identity for the Subscription Term set forth in the applicable Order Form for Identity. Customer’s use of Identity will be subject to any scope of use restrictions set forth in the Order Form, the applicable Documentation, and the Agreement.
Any data submitted by Customer to Identity (e.g., user profiles, traits and audience data) is considered “Customer Data” and the Agreement applies fully to Customer’s use of Identity. Without limiting the foregoing, Customer represents and warrants that (i) Customer has provided all disclosures to and obtained all consents from its users as necessary in connection with its use of Identity (including Customer’s building, tracking, using or sharing any user profiles, traits or audiences), and (ii) Customer, Customer Data and Customer’s use of Identity will comply with all applicable Laws. Further, Customer agrees not to use Identity to make decisions based solely on automated processing, including profiling, which produces legal or similarly significant effects on any user as understood under European Union Regulation 2016/679.
These Identity Terms will continue until expiration of the Subscription Term for Identity, unless earlier terminated as set forth in the Agreement. Upon any termination of these Identity Terms, Customer will cease any and all use of and access to Identity. Customer acknowledges that following termination it will no longer have access to any Identity-specific Customer Data, unless otherwise set forth in the Agreement. Neither expiration of Customer’s Subscription Term for Identity nor termination of these Identity Terms will in itself result in termination of the Agreement or any other Order Form. Termination of the Agreement will, however, result in automatic termination of these Identity Terms and all Order Forms.
7. TERM AND TERMINATION; SUSPENSION
This Agreement is effective as of the Effective Date and will continue until terminated.
7.2. Termination for Cause
Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section 7.2 limits Harvest’s right to terminate or suspend any Developer Plan as set forth in Section 2.3.
7.3. Effect of Termination
Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service (including any and all related Harvest technology), cease distributing any Harvest Code installed on Customer Properties, and delete (or, at Harvest’s request, return) any and all copies of the Documentation, any Harvest passwords or access codes and any other Harvest Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Service, and that Harvest may delete any such data as may have been stored by Harvest at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
7.4. Suspension of Service
In addition to Harvest’s termination and other rights under this Agreement, Harvest reserves the right to suspend Customer’s access to the Service (and any related services), in whole or in part, without liability to Customer and with immediate effect: (i) if Customer’s account is not settled as stipulated in art 3 of this Agreement; (ii) if Customer exceeds any scope of use restrictions set forth in the applicable Order Form; (iii) if Customer has breached its express obligations under Sections 1.5 (Use Restrictions) or 4 (Customer Obligations); or (iv) to prevent harm to the Service or other Harvest customers.
The following Sections shall survive any expiration or termination of this Agreement: 1.5 (Use Restrictions), the disclaimers in Section 2.5 (Beta Releases), 3 (Fees and Payment), 4.4 (Indemnification by Customer), 6 (Ownership), 7 (Term and Termination; Suspension), 8 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (Modifications to Agreement) and 13 (General Terms).
8. WARRANTY DISCLAIMER
The service and all related services are provided “as is”. Neither Harvest nor its suppliers makes any other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non infringement. Harvest does not warrant that customer’s use of the service will be uninterrupted or error-free, nor does Harvest warrant that it will review the customer data for accuracy or that it will preserve or maintain the customer data without loss. Customer understands that Customer data is shared with destinations at Customer’s election and Harvest takes no responsibility for any destination’s use or protection of Customer data once it has been shared. Harvest shall not be liable for delays, interruptions, service failures or other problems inherent in use of the Internet and electronic communications or other systems outside the reasonable control of Harvest. Customer may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law.
9. LIMITATION OF REMEDIES AND DAMAGES
9.1. Consequential Damages Waiver
Except for excluded claims (defined below), neither party (nor its suppliers) shall have any liability arising out of or related to this agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of the possibility of such damages in advance.
9.2. Liability Cap
Harvest’s (and its suppliers’) entire liability to Customer arising out of or related to this agreement shall not exceed the amount actually paid by Customer to Harvest during the prior twelve (12) months under this agreement.
9.3. Excluded Claims
“Excluded Claims“ means (a) any claim arising from Customer’s breach of Section 1.5 (Use Restrictions); or (b) any claim arising under Section 4 (Customer Obligations).
10. CONFIDENTIAL INFORMATION
Each party (as “Receiving Party“) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Harvest technology, performance information relating to the Service, and the terms and conditions of this Agreement shall be deemed Confidential Information of Harvest without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Harvest, the subcontractors referenced in Section 13.10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment.
Customer agrees to participate in reasonable marketing activities that promote the benefits of the Service to other potential customers and to use of Customer’s name and logo on Harvest’s web site and in Harvest promotional materials. Customer agrees that Harvest may disclose Customer as a customer of Harvest.
12. MODIFICATIONS TO AGREEMENT
Harvest may modify the terms and conditions of this Agreement (including Service pricing and plans) from time to time, with notice given to Customer by email or through the Service. If Customer has a Developer Plan, then any modifications will become effective immediately, and if Customer disagrees with the modifications, Customer’s exclusive remedy is to terminate this Agreement and cease using the Service. If Customer has a Paid Plan, Customer must notify Harvest within thirty (30) days of notice of the modifications that Customer does not agree to such changes, and Harvest (at its option and as Customer’s exclusive remedy) may either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. Upon any changes to this Agreement, Customer may be required to click to agree to the modified Agreement in order to continue using the Service, and in any event continued use of the Service after the modifications take effect constitutes Customer’s acceptance of the modifications.
13. GENERAL TERMS
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Harvest may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Harvest’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.3. Governing Law; Jurisdiction and Venue
This Agreement shall be governed by the laws of the State of the Netherlands, without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the ArrondissementsRechtbank in Zwolle.
13.4. Attorneys’ Fees and Costs
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
Any notice or communication to Harvest that is required or permitted under this Agreement shall be in writing to Harvest at the address set forth in Section 13.6 (Harvest Contact Information) below or at such other address as directed by Harvest, and shall be deemed to have been received by Harvest (i) if given by hand, immediately upon receipt; (ii) if given by courier service, the first business day following dispatch or (iii) if given by registered or certified mail, the second business day after such notice is deposited in the mail. Harvest may send notices to Customer through Customer’s email on file or through the Service. All notices given to Customer shall be deemed to have been received by Customer upon delivery.
13.6. Harvest Contact Information
Any Customer questions, complaints or claims regarding the Service should be sent to the following address:
Harvest by Grain BV
8043 XM Zwolle
No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.8. Entire Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Service is an on-line, subscription-based product, and that in order to provide improved customer experience Harvest may make changes to the Service, and Harvest will update the applicable Documentation accordingly.
13.9. Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
Harvest may use the services of subcontractors and permit them to exercise the rights granted to Harvest in order to provide the Service under this Agreement. These subcontractors may include, for example, Harvest’s hosting, infrastructure and CDN providers.
Nothing in this Agreement prevents Harvest from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Harvest shall use commercially reasonable efforts to notify Customer where permitted to do so.
13.12. Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.