Harvest BI Terms of Service
Agreement. By using the Harvest Food Solutions LLC (“Harvest”) Business Intelligence (“BI”) application, software, portal, or third-party service offered in connection with such 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 Solution (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 customer care plan (“Customer Care Plan”), and the scope, terms and conditions of those support Services shall be as set forth in the particular Harvest Customer Care Plan and Harvest Services and Customer Care Agreement, if any. Customer may request and Harvest may agree to provide additional services outside of any Quote or SOW, and any additional services will be detailed in an invoice, including detailed time accounting for such additional services.
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 Power BI 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 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, and Power BI 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. Customer’s access to any third-party products and services may continue beyond termination of this Agreement, subject to the terms and conditions of those third-party products and services.
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 Customer Care Plan, the terms of the applicable Customer Care Plan and customer care agreement shall govern and prevail over this Agreement with respect to the provision of such customer care Services.