Harvest Services and Customer Care Agreement
Agreement. By using any Harvest Food Solutions LLC (“Harvest”) installation, training, troubleshooting, Professional Services, Customer Care or other services (each, a “Harvest Service”), you (“Customer”) agree to be bound by the terms and conditions of this agreement (the “Agreement”). Customer may only use each Harvest Service in strict compliance with the terms of this Agreement, and Customer’s use of any Harvest Service 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 Harvest Service, and Customer must immediately inform Harvest of its decision prior to Customer’s first use of any Harvest Service. If Customer desires to use any Harvest Service in connection with any other Harvest product, software or offering, Customer shall also be bound by the terms of any Harvest agreement or third-party agreement applicable to such product, software or offering,
Fees. Harvest will provide Customer with a written quote (“Quote”) that sets forth fees for each Harvest Service. Harvest may elect, in its sole discretion, to provide a subsequent statement of work (“SOW”) with respect to any Harvest Service 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 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. All billing will be done at current Harvest market rates. 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.
Quote; SOW. Harvest shall only be obligated to provide those Harvest Services that are 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 work completed outside of a quote, sow or work order based upon customer request will be considered additional services to be billed.
Consent for Remotely Based or Data-Connected Services. The software used with the Harvest Services may connect to Harvest and other service providers over a data connection (e.g. the internet or a wireless carrier). In some cases, Customer will not receive a separate notice when they connect. By using the Harvest Services, Customer consents to the transmission of information as part of the Harvest Services.
Remote Access. To provide the Harvest Services, Harvest may be required to connect remotely to Customer’s device, cloud or system (collectively, “System”), which allows Harvest to access and control Customer’s System, view Customer’s System, and install or uninstall software and change settings on Customer’s System. Harvest may ask Customer to download or accept Harvest or third-party software licensing terms to establish the remote connection. Customer is responsible for any download charges that may apply and for paying the fees charged by Customer’s data connection provider(s) (e.g. via internet, or Wi-Fi or wireless carrier). Those fees are in addition to any fees Customer pays Harvest for the Harvest Services and Harvest will not reimburse Customer for them. Harvest may run diagnostic tools on Customer’s System to determine whether it meets the minimum requirements for Harvest to perform certain Harvest Services, such as upgrades. Customer must agree to this step for Harvest to provide those Harvest Services. If Harvest is unable to establish a remote access connection to Customer’s System or complete any of the above steps, Harvest may not be able to provide Harvest Services.
Cooperation and Customer Care ability. Harvest’s ability to deliver the Harvest Services depends upon Customer’s full and timely cooperation as well as the accuracy and completeness of any information Customer provides. Customer must have an eligible device and validly licensed Harvest software that meet(s) the applicable minimum requirements for Customer Care ability. Harvest reserves the right to cancel the Harvest Services and/or provide a refund due to problems with Customer’s System requirements or configuration, or for any other reason beyond Harvest’s control that makes providing the Harvest Services impossible or impractical. Customer is solely responsible for the costs of applicable equipment and services necessary to meet the System requirements, by way of example only telecommunications and ordinary computing devices.
Software Terms. If the Harvest Service includes software installations, regardless of whether the software is provided by Harvest or a third-party software provider, Customer must have Customer’s software and software product keys available before installation. By providing Harvest with information, software or applications to install or transfer on Customer’s behalf, Customer represents that Customer has the right to authorize Harvest to take such action. Customer understands and acknowledges that Harvest may need to accept End-User License Agreements (“EULAs”) on Customer’s behalf for such software installations and Customer agrees to comply with any EULAs. If Customer requests installation of software from a third-party software provider in connection with the Harvest Services, Harvest will give Customer the opportunity to review the corresponding EULA; Customer assumes sole responsibility if Customer decides not to review it. Customer understands and agrees that Harvest does not control the terms of any third party EULAs and will not review such EULAs prior to accepting them on Customer’s behalf.
Hardware: Harvest does not provide Customer Care or related services for any hardware, unless otherwise expressly agreed by Harvest in writing in the applicable Quote or SOW, which will set forth the scope, duration and other details of the hardware Customer Care. The Customer Care Level Plans offered above will only provide Customer Care for Harvest ERP Solution, Harvest DSD Solution, Harvest BI Solution. Unless otherwise agreed by Harvest in such Quote or SOW, if Customer desires to receive Customer Care services for any hardware that it purchases from or through Harvest, Customer must seek such Customer Care from the hardware manufacturer or distributor, but not Harvest.
Software Assurance: Software Assurance is provided to all customers by who have purchased SaaS software directly from Harvest. Software Assurance will be managed, deployed, tested, and validated by Customer based upon manufacture deployment schedules. Software Assurance includes vendor software Major/Minor version updates, hot fixes, security patches, feature updates and version upgrades as determined by manufacture. All SaaS changes are done at manufacture discretion.
Any Customer Care Services shall only be provided by Harvest to Customer in accordance with the applicable Harvest Customer Care level plan (“Customer Care Level Plan”). Customer may elect to purchase a Customer Care Plan if offered by Harvest in a Quote or SOW. If no Customer Care Plan is purchased by Customer, then Harvest shall not have any obligation to provide Customer Care of any kind or nature to Customer.
For purposes of the Customer Care Plans detailed below, “Holidays” means New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas Day. Customer Care shall be provided by email and phone, and Harvest shall use good faith, commercially reasonable endeavors to respond to any Customer Care requests within one hour of receipt of such request.
All Customer Care Plans listed below shall include access to the Harvest resources as available. (“Tier 1 Customer Care”), Harvest Customer Care support analyst and/or business analyst as determined necessary by Harvest (“Tier 2 Customer Care”), Sr. business analyst and/or solutions architect, and/or third-party service/support as determined necessary by Harvest (“Level 3 Customer Care”). Sr. software architect, and/or development resources, Harvest will assess and inform Customer of the level of support to be provided after receiving Customer’s request for support.
Severity 1 – Critical > Production or other mission critical system(s) are inoperable, and no workaround is immediately available. The situation halts your business operations and users are unable to reasonably perform their normal functions. The impact is critical, and the problem must be resolved immediately.
Severity 2 – Major > Major functionality is impacted, or significant performance degradation is experienced. Critical loss of application functionality or performance resulting in high number of users unable to perform their normal functions, and no reasonable workaround exists. The program is usable but severely limited.
Severity 3 – Minor > Minor feature or product failure or minor performance degradation resulting in minor loss of operational functionality for a small number of users. The majority of software functions are still useable, and a workaround is available.
Severity 4 – Low > Inquiry regarding a routine technical issue, information requested on application capabilities, navigation, or configuration, or an issue affecting a small number of users. An acceptable workaround available, and there is no impact to program usage or daily operations.
The details of each Customer Care Plan are as set forth below:
Gold-Level Customer Care Level: Harvest shall be available to provide Customer Care to Customer as and when reasonably necessary twenty-four (24) hours per day, seven (7) days per week, excluding Holidays. Customer Care shall be provided by email, portal and phone, and Harvest shall use good faith, commercially reasonable endeavors to respond to any Customer Care requests within one (1) hour of receipt of such request.
Silver-Level Customer Care Level: Harvest shall be available to provide Customer Care to Customer as and when reasonably necessary between 7:00AM – 7:00PM, Monday through Saturday, excluding Holidays. Customer Care shall be provided by email, portal and phone, and Harvest shall use good faith, commercially reasonable endeavors to respond to any Customer Care requests within two (2) hours of receipt of such request.
Bronze Customer Care Level: Harvest shall be available to provide Customer Care to Customer as and when reasonably necessary between 8:00AM – 5:00PM, Monday through Friday, excluding Holidays. Customer Care shall be provided by email and portal, and Harvest shall use good faith, commercially reasonable endeavors to respond to any Customer Care requests within three (3) hours of receipt of such request.
Pay-As-You-Go Customer Care Level: Harvest shall be available to provide Customer Care to Customer as and when reasonably necessary between 9:00AM – 5:00PM, Monday through Friday, excluding Holidays. Customer Care shall be provided by email and Harvest shall use good faith, commercially reasonable endeavors to respond to any Customer Care requests within eight (8) hours of receipt of such request.
All Customer Care Levels come with Severity 1 24×7 support. All other Severities will be priorities within stated Customer Care support hours windows.
For Silver, Bronze and Pay-As-You-Go Customer Care Levels, any services or Customer Care required by Customer that falls outside of the regular business hours set forth in each Customer Care Plan shall be billed to Customer in one-hour increments at one-and-one-half times (1.5x) the current Harvest or third-party standard hourly rates (as applicable). Such fees shall be in addition to any payments otherwise owed to Harvest for such Customer Care Plan.
For all Harvest Customer Care Level Plans hours incurred above the specific Customer Care Level plan monthly coverage will be billed at current Harvest Professional Services rates.
All Customer Care coverage hours are within North American Time-Zones.
All Customer Care Plans shall include access to Tier 1 Customer Care, Tier 2 Customer Care and Tier 3 Customer Care resources, if and as determined necessary by Harvest.
Intellectual Property. As between Customer and Harvest, Harvest owns all right, title and interest in and to the Harvest Services. Customer may provide certain suggestions or feedback (“Feedback“) to Harvest for improvements or modifications to any Harvest Service, software or offerings. To the extent that Customer provides any Feedback to Harvest with respect to any of the foregoing, 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.
Term; Termination. The term of the Harvest Services shall be as set forth in the Quote or SOW (if applicable). Customer may cancel Customer’s Harvest Services by contacting a Harvest Customer Care agent at any time. If Customer are on Customer Care Level Plan, Customer must cancel the subscription at least 45 days before the billing date to avoid a charge for the next period. The billing date is as set forth in the Quote or SOW (if applicable), and if not set forth therein, then it is the anniversary of Customer’s initial enrollment date unless otherwise agreed. Harvest reserves the right, in its sole discretion, to terminate Harvest Services without notice if Customer’s payment is not made on time, Customer violates this Service Agreement or the Harvest Master Services Agreement (“MSA”) or any Appendix or Harvest policy, or Harvest determines that the subscription was used by someone other than Customer or for Customer Care on someone else’s device. Harvest may also terminate the Harvest Services if Harvest determines that Customer are ineligible to receive the Harvest Services. Sections 4 through and including section 8 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.
No Warranty, Limitation of Remedies.
NO WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE HARVEST SERVICES ARE PROVIDED “AS IS” AND HARVEST DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, SATISFACTORY CONDITION OR QUALITY, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY HARVEST SERVICES, SOFTWARE, DIAGNOSTICS, OR OTHER MATERIALS OR INFORMATION WE PROVIDE. CUSTOMER BEARS THE ENTIRE RISK OF THE HARVEST SERVICES’ QUALITY AND PERFORMANCE.
LIMITATION OF REMEDIES. In addition to the limitations set forth in the MSA, if the law provides any implied warranties despite the exclusions and limitations in this Agreement, or a claim is otherwise brought by Customer against Harvest with respect to any Services or the results thereof, Customer’s remedies are limited as determined by Harvest, in the case of Harvest Services, to either: (1) Re-performance of the Harvest Services, or (2) a refund of the price Customer paid (if any) for the deficient Harvest Services. This is Customer’s only remedy for a breach of warranty or condition, even if the remedy fails of its essential purpose. Unless the law mandates otherwise, Harvest will determine the order in which these limited remedies are provided. Customer may have additional consumer rights under the law which this Service Agreement cannot change.
Compliance: Customer must comply with all laws and regulations applicable to Customer’s use of the Harvest Services, and all regulations and third-party agreements related thereto.
Other Terms. This Agreement is subject to the terms of 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 Services, 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, any Customer Care Plan, 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 of any Customer Care Plan issued by Harvest shall prevail over the terms of this Agreement, the MSA, the HPP or any other policies; (d) the terms set forth in this Agreement shall govern over the terms in the MSA or any policies (other than the HPP); and (e) 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.