Harvest DSD Terms of Service
Agreement. By using the Harvest Food Solutions LLC (“Harvest”) DSD application, software, portal, or third-party service offered in connection with such application, software, or portal (each, a “Harvest DSD 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 DSD Solution in strict compliance with the terms of this Agreement, and Customer’s use of any Harvest DSD 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 DSD Offerings (as defined below), and Customer must immediately inform Harvest of its decision prior to Customer’s first use of any Harvest DSD 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 DSD 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 DSD Offerings or Honeywell Offerings at Customer’s direction or in furtherance of Customer’s business or interest. If Customer desires to create or change any User, it shall submit such request to Harvest, and Harvest shall add, change or modify such User in the Harvest DSD 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 DSD Solution or Honeywell Offerings 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 North America only (i.e. United States of America, Canada and Mexico, and their possessions and territories).
Harvest will provide Customer with a written quote (“Quote”) that sets forth fees for the Harvest DSD Solution. Harvest may also elect to include in the Quote certain fees for training, implementation, products, support or other services (together with the Harvest DSD Solution, collectively, the “Harvest DSD 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. Harvest has the right to change any Fees or Costs on a prospective basis upon prior notice to Customer.
The license to use the Harvest DSD Solution shall be billed on a monthly basis based on the number of Customer’s active Harvest DSD Solution Participants and Devices, plus the number of Connectors. In addition, Customer shall be responsible for Fees for performance and data storage that exceeds the limits set forth in the Quote, or SOW (if applicable). “Device” means each personal or Customer-owned device that the User uses in conjunction with the Harvest DSD Solution. All Devices must be Harvest-certified or approved. “Participant” means each individual that uses a Device. “Connector” means a unique system instance.
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.
Intellectual Property. As between Customer and Harvest, Harvest owns all right, title and interest in and to the Harvest DSD Offerings. Certain components of the Harvest DSD 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 DSD 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 DSD 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 DSD 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 DSD 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 DSD Solution use, tracking, identification, encryption or security protocols; (f) apply any process or procedure to the Harvest DSD Solution that is intended to derive the source code, object code, algorithms, equations or formulas of any technology included in the Harvest DSD 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 DSD Solution; (h) release the results of any performance or functional evaluation of any of the Harvest DSD 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 DSD Solution, or upon which the Harvest DSD Solution relies; (j) resell or sublicense the Harvest DSD Solution; (k) obtain unauthorized access to any Honeywell Offerings or Harvest DSD Offerings; or (l) by action or omission, use, display, perform, distribute, exhibit, or otherwise exploit any of the Harvest DSD 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.
Accounts. Customer may be required to download a mobile app, or visit an internet portal or site, through which Customer or its Users may access the Harvest DSD 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 DSD 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 DSD Solution; and (d) immediately if Customer is otherwise in material breach of this 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 DSD Offerings and Honeywell Offerings 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 DSD Solution, or that such use is fraudulent or infringes any third-party rights. Sections 5 through and including section 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 DSD OFFERINGS WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ANY OF THE HARVEST DSD 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 DSD 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 DSD Offerings are subject to such compliance. For purposes of FARs, DFARs and access by governmental authorities, the Harvest DSD Offerings are “commercial computer software”, “commercial computer software documentation” and “restricted data” provided to Customer under “limited rights” and “restricted rights” and only as commercial end items.
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 DSD 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 support agreement shall govern and prevail over this Agreement with respect to the provision of such Customer Care Services.
Additional Honeywell Terms
Use Rights. Subject to strict compliance with all Honeywell agreements and policies, Honeywell shall provide Customer solely its internal business purposes: (a) remote access to the Honeywell Offerings through means Honeywell provides (and which may include online portals or interfaces such as https, VPN or API); and (b) a personal, revocable, non-exclusive, non-assignable, non-transferable license to: (i) download, install, and use software Honeywell provides solely to operate the Honeywell Offerings; and (ii) use Honeywell Offerings documentation as reasonably required in connection with the Honeywell Offerings (collectively, “Use Rights”). Use Rights continue for the duration of the period stated in the Harvest Terms of Service (“Harvest Agreement”), or if there is none, for 12 months. Harvest and Honeywell may list metrics, including user number, data volume, sensors or other means to measure usage or fees (the “Usage Metrics”). Use Rights are subject to Usage Metrics, Honeywell’s Fair Use Policy, and restrictions in the Agreement. If Customer exceeds Usage Metrics or is not in compliance with Honeywell’s Fair Use Policy, Honeywell may suspend access until Customer pays required fees and/or are in compliance. Customer, its users and any party accessing the Honeywell Offerings on Customer’s behalf (“Users”) may exercise Use Rights, provided that, Customer must bind them to the Harvest Agreement and Customer is responsible for their compliance with it, any breach by them and their acts and omissions. Customer may not resell Use Rights or permit third parties (except affiliates or service providers) to be Users or make copies of the Honeywell Offerings (except for back up) except as agreed by Honeywell in writing. Honeywell has no responsibility with respect to actions or inactions of Users.
Accounts. Customer may be required to download a mobile app, or visit an internet portal or site, through which Customer may access the Honeywell Offerings and set up accounts including issuance or authentication credentials. In operating Customer’s account, Customer and its Users must: (i) maintain strict confidentiality of user names, passwords or other credentials; (ii) not allow others to use Customer’s credentials or access Customer’s account; (iii) immediately notify Harvest of any unauthorized use or breach of security related to Customer’s or its Users’ account; (iv) submit only complete and accurate information; and (v) maintain and promptly update information if it changes. Honeywell may use rights management features (e.g. lockout) to prevent unauthorized use.
Acceptable Use. The Use Rights are the only acceptable use of the Honeywell Offerings. Customer shall not use the Honeywell Offerings for purposes of, or in connection with: (a) reverse engineering, making machine code human readable or creating derivative works or improvements; (b) interfering with its security or operation (including probing, scanning or testing the vulnerability of any security measures or misrepresenting transmission sources); (c) creating, benchmarking or gathering intelligence for a competitive offering; (d); infringing another’s IPR; (e) employing it in hazardous environments requiring fail-safe performance where failure could lead directly or indirectly to personal injury or death or property or environmental damage; or (f) any use that would reasonably be expected to cause liability or harm to Harvest, Honeywell or their other customers or breach the Harvest Agreement or this Appendix A. Any violation of the restrictions set forth in this Section shall constitute a breach of Customer’s Use Rights under this Harvest Agreement and Appendix A. Honeywell have the right to monitor usage.
Termination. Honeywell may terminate upon written notice if the Honeywell Offerings are provided at no charge, use is fraudulent, continued use would subject Honeywell to third party liability or Honeywell ceases making the Honeywell Offerings generally available to third parties. Honeywell may suspend Use Rights if Honeywell determines that Customer or its Users are or may violate the Harvest Agreement or this Appendix A. During suspension, Customer and its Users will not have access to all or part of the Honeywell Offerings and may be unable to access Input Data. Upon termination or expiration of the Harvest Agreement, Customer must delete all copies of Honeywell Offerings and credentials. Sections 5 to 12 and those portions of this Appendix A that by their nature should survive, survive termination or expiration.
Data. Customer or persons acting on its behalf may input, upload, transfer or make data available in relation to, or such information or data may be collected from Customer’s devices or equipment by, the Honeywell Offerings (“Input Data”). Honeywell and its affiliates have the right to duplicate, analyze, transfer, modify and otherwise use Input Data to provide, improve or develop their offerings. Customer has sole responsibility for obtaining all consents and permissions (including providing notices to Users or third parties) and satisfying all requirements necessary to permit Honeywell’s use of Input Data. Customer will, at its cost and expense, defend, indemnify and hold harmless Honeywell, Harvest and their affiliates, sub-contractors and licensors from and against all losses, awards and damages (including attorneys’ fees), arising out of claims by Customer, its Users or any third parties related to Honeywell’s possession, processing or use of Input Data or Customer’s or its Users’ infringement, misappropriation or violation of Honeywell’s or a third party’s IPR (except if caused by Customer’s authorized use of the Honeywell Offerings). Unless agreed in writing, Honeywell does not archive Input Data for Customer’s future use.
IP.All right, title and interest, including all intellectual property rights (including copyrights, trademarks and patents), proprietary rights (including trade secrets and know-how), and moral rights (including rights of authorship and modification) throughout the world (“IPR”) in and to the Honeywell Offerings and all of their derivative works, modifications and improvements, are retained by Honeywell or its licensors and are Honeywell’s confidential information. Honeywell shall own all IPR that is: (i) derived by processing or analysis of Input Data and that is sufficiently different from Customer Input Data so that Customer’s Input Data cannot be identified from analysis or further processing of such derived data; or (ii) generated through support, monitoring or other observation of Customer’s and its Users’ use of the Honeywell Offerings. The operation and performance of the Honeywell Offerings is Honeywell confidential information. If Customer or any of its Users provides any suggestions, comments or feedback regarding the Honeywell Offerings, Customer hereby assigns to Honeywell and Harvest all right, title and interest in and to the same without restriction. Customer and its Users shall not remove, modify or obscure any IPR notices on the Honeywell Offerings.
Security. Security is governed by the policies in the Agreement or if none are specified: (i) Honeywell will use commercially reasonable administrative, physical and technical safeguards to protect personal data and Input Data and follow industry-standard security practices; and (ii) following a confirmed breach of security leading to the accidental or unlawful destruction, loss, alteration or unauthorized access, disclosure or use of Customer’s Personal Data or Input Data Honeywell will notify Customer without undue delay and as relevant information becomes available to assist Customer in meeting its potential reporting or notice obligations under applicable law and Customer will work with Honeywell in good faith to develop any related public statements or required notices. Customer is solely responsible for costs and liability incurred due to unauthorized use or access through Customer’s or its Users account credentials or systems.
Licenses. Honeywell may use open source software (“OSS”) and to the extent required by the licenses covering OSS, the terms of such licenses will apply to OSS in lieu of this Appendix A. To the extent the licenses applicable to OSS: (i) prohibit any restriction with respect to such OSS, such restriction will not apply to such OSS; and (ii) require Honeywell to make an offer to provide source code or related information in connection with the OSS, such offer is hereby made. If required by Honeywell’s written contract with them, certain of Honeywell’s licensors are third party beneficiaries of this Appendix A.
Breach. A breach of any of the terms contained in this Appendix A shall be a material breach of the Harvest Agreement and this Appendix A. A breach of this Appendix A may give rise to claims against Customer by Honeywell, Harvest or their affiliated companies. Honeywell is an intended creditor third-party beneficiary under this Appendix A, as are those third-party beneficiaries referenced in Section 8.
Warranty, Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE HARVEST AGREEMENT, THE HONEYWELL OFFERINGS AND SUPPORT ARE PROVIDED WITH NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HONEYWELL AND HARVEST EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS INCLUDING MERCHANTABILITY AND FITNESS FOR PURPOSE. HONEYWELL AND HARVEST DO NOT WARRANT THAT THE HONEYWELL OFFERINGS WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT IT WILL OPERATE WITHOUT INTERRUPTION, OR BE ERROR FREE.
Limitation. EXCEPT FOR BREACH OF SECTION 3 (USE RIGHTS), 5 (ACCEPTABLE USE) OR 11 (IP) OR FEES PAYABLE, HONEYWELL WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND REVENUES. The following are exclusions from the limitation of liability in the Agreement: (i) a party’s breach of confidentiality obligations (except in relation to Input Data for which the cap applies), section 3 (use rights), 5 (acceptable use) or 9 (IP); or (ii) claims against Honeywell or its affiliates relating to possession, processing or use of Input Data in accordance with this Appendix A.
Miscellaneous. Any descriptions of future product direction or intended updates (including new or improved features or functions) other than the features and functions deployed as of date of the Harvest Agreement are intended for information purposes only and are not binding commitments on Honeywell to deliver any material, code or functionality. The development, release and timing of any such updates is at Honeywell’s sole discretion unless agreed otherwise in writing. Honeywell reserves the right to charge additional fees for new or improved features or functions. During the term and 24 months after, Honeywell or its designee can, during normal business hours upon reasonable notice, access, inspect and audit, Customer’s compliance with the Agreement and Customer will give access to information and personnel as Honeywell may reasonably request. These Honeywell Offerings terms take precedence of any other terms of the Harvest Agreement in relation to the Honeywell Offerings.