To be eligible to register for a Harmonize account and use the Harmonize Platform, you must review and accept the terms of this Harmonize Terms of Service (this “Agreement” or these “Terms”) by clicking the terms of service checkbox or other mechanism provided within the online registration process. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE HARMONIZE PLATFORM, YOU AGREE ON BEHALF OF THE ENTITY OR OTHER ORGANIZATION THAT YOU REPRESENT TO THESE TERMS AND CONDITIONS WITH HARMONIZE TECHNOLOGIES INC. (“Harmonize”), AND ARE WARRANTING TO HARMONIZE THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THESE TERMS.  For purposes hereof, the terms “you”, “your” and “Customer” will refer to that entity or organization.  IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT USE THE HARMONIZE PLATFORM.

Harmonize may revise these Terms from time to time. If Harmonize does revise these Terms, the revised Terms will supersede prior versions. Revisions will be effective upon the effective date indicated at the top of these Terms, unless you have purchased a paid subscription to the Harmonize Platform, in which case such revisions will be effective upon the next renewal of your subscription. Harmonize will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Harmonize has on file. For other revisions, Harmonize will update the effective date of these Terms at the top of the page. Harmonize encourages you to check the effective date of these Terms whenever you visit Harmonize’s website or account portal. Your continued access or use of the Harmonize Platform constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Harmonize Platform and Harmonize is not obligated to provide you with the Harmonize Platform.

1. Definitions

2. Harmonize Platform

2.1 Provision of Harmonize Platform.  Subject to the terms and conditions of this Agreement, and the applicable Order Form, Harmonize will make the Harmonize Platform available to Customer pursuant to this Agreement, and hereby grants Customer a non-exclusive right to access and use the Harmonize Platform for its internal business purposes to manage employee profiles, application and device assignments, and onboarding and offboarding events.  Customer may permit Users to use the Harmonize Platform on its behalf and is responsible for (a) managing its User accounts, (b) its Users’ actions through the Harmonize Platform and (c) their compliance with this Agreement.

2.2 Data Security. 

(a) Harmonize will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.

(b) To the extent that Harmonize processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Harmonize Platform, the Data Processing Addendum (“DPA”) currently available at: https://harmonize.io/data-processing-addendum is hereby deemed incorporated herein by reference.

2.3 Customer Limitations.  The rights granted herein are subject to the following restrictions (the “License Restrictions”).  Customer will not, and will ensure its Users will not, directly or indirectly:

(a) reverse engineer, decompile, disassemble, modify, create derivative works of, or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Harmonize Platform;

(b) attempt to probe, scan or test the vulnerability of the Harmonize Platform, breach the security or authentication measures of the Harmonize Platform without proper authorization or wilfully render any part of the Harmonize Platform unusable;

(c) attack, or attempt to attack, the Harmonize Platform using a denial-of-service attack, a distributed denial-of-service attack or any other attack;

(d) use or access the Harmonize Platform to develop a product or service that is competitive with Harmonize’s products or Product;

(e) use the Harmonize Platform to engage in any misleading or deceptive comparisons involving the Harmonize Platform or other products or services; or

(f) otherwise use the Harmonize Platform (i) to engage in any illegal activity, (ii) to infringe or violate any third party rights, or (iii) otherwise outside the scope expressly permitted hereunder and in the applicable Order Form.

(g) share, transfer, distribute, resell, lease, license or assign the Harmonize Platform or offer the Harmonize Platform on a standalone basis.

2.4 Customer Responsibilities. Customer will (a) be responsible for all use of the Harmonize Platform under its account, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Harmonize Platform and notify Harmonize promptly of any such unauthorized access or use, and (c) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Harmonize Platform, including as set forth in the Documentation.  Customer will be solely responsible for its failure to maintain such equipment, software and services, and Harmonize will have no liability for such failure.  

Third Party Products.  Third party products that Customer uses with the Harmonize Platform (“Third Party Products”) are governed by the applicable terms of the Third Party Product providers. Harmonize does not endorse or support and is not responsible for Third Party Products .  Customer may enable integrations between the Harmonize Platform and Third Party Products .  When enabling an integration, you are instructing Harmonize to share the Customer Data necessary to facilitate an integration.  Customer is responsible for notifying the third party if required.  Harmonize and Third Party Product providers are not sub processors of each other. Customer hereby waives any claims against Harmonize with respect to any Third Party Products.

2.5 Customer Support.  Harmonize’s live technical support business hours will start at 9:00 am Pacific Time and run until 5:00 pm Pacific Time on weekdays. Technical support can be contacted as follows: 

Email	Communication Tool
[email protected]	Shared Slack Connect channel

Live technical support will not be available on Christmas Day (December 25) and New Year’s Day (January 1). Limited technical support will be available during the hours listed above during Harmonize holidays. The current Harmonize holidays are set forth below:

• Presidents Day (third Monday of February)
• Memorial Day (last Monday of May)
• Independence Day (July 4)
• Labor Day (first Monday of September)
• Thanksgiving Day (fourth Thursday in November)
• Christmas Eve (December 24)
• New Year’s Eve (December 31)

3. Fees

3.1 Fees. If Customer has purchased a subscription or has otherwise agreed to pay any fees in an Order Form, Customer will pay Harmonize the fees set forth in the applicable Order Form.

3.2 Payment.  All fees are quoted and payable in United States dollars, all payment obligations are non-cancelable and, except as expressly set forth herein, all fees paid are non-refundable.  If Customer has selected a payment plan and provided its payment information to Harmonize, then Customer (a) represents and warrants to Harmonize that such information is true and that Customer is authorized to use the payment instrument, (b) will promptly update its account information with any changes to its payment instrument information, and (c) hereby authorizes Harmonize (including through its payment processor, in which case Customer hereby agrees to the applicable terms and policies of such payment processor) to bill your payment instrument in advance in accordance with the terms of the applicable payment plan.  If Customer is paying the fees set forth in an Order Form by invoice, then all fees are due within thirty (30) days of the date of the invoice.  If Customer is overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then Harmonize may assess a late fee and/or suspend Customer’s account until Customer pays the amount Customer is overdue plus the late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is less.

3.3 Net of Taxes.  All applicable use, sales and other similar taxes and government charges will be payable by Customer. Customer will not withhold any taxes from any amounts due to Harmonize.

4. Proprietary Rights and Confidentiality

4.1 Harmonize’s Ownership Rights.  As between the parties, Harmonize exclusively owns all right, title and interest in and to the Harmonize Platform and Harmonize’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data and Customer’s Confidential Information.  Except for the express rights granted hereunder, Harmonize reserves all rights, title and interests in and to the Harmonize Platform and Harmonize’s Confidential Information.    

4.2 Feedback.  Customer may from time to time provide Harmonize suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Harmonize Platform.  Harmonize will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Harmonize will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.  All Feedback is provided “AS IS” and Harmonize will not publicly identify Customer as the source of Feedback without Customer’s permission.

4.3 Confidentiality.  Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  However, either party may disclose Confidential Information  to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.  Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

4.4 Aggregated Information.  Notwithstanding anything to the contrary, Harmonize shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Harmonize Platform and shall be free (during and after the term hereof) to (i) use and retain such data and other information to develop and improve the Harmonize Platform and other Harmonize offerings, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

5. Warranties and Disclaimers

5.1 Mutual. Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Harmonize Platform.

5.2 Harmonize. Harmonize warrants that the Harmonize Platform will perform materially as described in the Documentation and Harmonize will not materially decrease the overall functionality of the Harmonize Platform during the applicable subscription term (the “Performance Warranty”). Harmonize will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If Harmonize fails to do so within 30 days after Customer’s warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Harmonize Platform, in which case Harmonize will refund to Customer any prepaid subscription fees for the terminated portion of the applicable subscription term. To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Harmonize Platform. These procedures are Customer’s exclusive remedies and Harmonize’s sole liability for breach of the Performance Warranty.

5.3 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Harmonize to use the same as contemplated hereunder.

5.4 DISCLAIMERS.
(a) EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE HARMONIZE PLATFORM AND ANY NO-CHARGE PRODUCTS (AS DEFINED BELOW) ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, AND HARMONIZE HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE HARMONIZE PLATFORM AND NO-CHARGE PRODUCTS.

(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT HARMONIZE IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD HARMONIZE LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY PRODUCTS, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY PRODUCTS RESTS ENTIRELY WITH CUSTOMER

5.5 No-Charge Products. Harmonize may offer certain products or services that are part of the Harmonize Platform at no charge, including free accounts, trial use and pre-release, alpha or beta versions or features (collectively, “No-Charge Products”). Customer’s use of No-Charge Products is subject to any additional terms that Harmonize may specify. Except as otherwise set forth in this Section, these Terms apply to No-Charge Products. Harmonize may modify or terminate Customer’s right to use No-Charge Products at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HARMONIZE DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS, AND HARMONIZE’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100

6. Indemnification

6.1 Indemnity by Harmonize.  Harmonize will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Harmonize Platform as permitted hereunder infringes or misappropriates third party intellectual property rights and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Harmonize) in connection with any such Claim; provided that (a) Customer will promptly notify Harmonize of such Claim, (b) Harmonize will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Harmonize may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Harmonize in connection therewith.  If the use of the Harmonize Platform by Customer has become, or in Harmonize’s opinion is likely to become, the subject of any claim of infringement, Harmonize may at its option and expense (i) procure for Customer the right to continue using and receiving the Harmonize Platform as set forth hereunder; (ii) replace or modify the Harmonize Platform to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.  Harmonize will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the Harmonize Platform by Customer not in accordance with this Agreement; (C) modification of the Harmonize Platform by or on behalf of Customer; (D) Customer Data, or (E) the combination, operation or use of the Harmonize Platform with other products or services where the Harmonize Platform would not by itself be infringing (clauses (A) through (E), “Excluded Claims”).  This Section states Harmonize’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

6.2 Indemnification by Customer.  Customer will defend Harmonize against any Claim made or brought against Harmonize by a third party arising out of the Excluded Claims, and Customer will indemnify Harmonize for any damages finally awarded against Harmonize (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Harmonize will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Harmonize’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Harmonize of all liability) and (c) Harmonize reasonably cooperates with Customer in connection therewith.

7. Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 4.3 OR THE LICENSE RESTRICTIONS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM (THIS CLAUSE (B), THE “ORDINARY CAP”).  NOTWITHSTANDING THE FOREGOING, HARMONIZE’S AGGREGATE LIABILITY FOR BREACH OF SECTION 2.2 (INCLUDING THE DPA) AND/OR SECTION 4.3 IN RELATION TO CUSTOMER DATA WILL NOT EXCEED TWO TIMES (2X) THE ORDINARY CAP.

8. Termination

8.1 Term.  The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below.  The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the subscription term set forth therein.  Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least 45 days prior to the end of the then current term.

8.2 Termination.  Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

8.3 Survival.  Upon expiration or termination of this Agreement, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination, and the general provisions below.

9. General

9.1 Insurance. Harmonize shall, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense: (a) Statutory Worker’s Compensation and Employer’s Liability as required by state law with a minimum limit of $2,000,000 each accident / $2,000,000 each disease / $2,000,000 policy limit per occurrence, Disability and Unemployment Insurance, and all other insurance as required by law, including Employer’s Liability Insurance with limits of no less than $2,000,000 per occurrence, or any amount required by applicable law, whichever is greater; and (b) Professional Errors and Omissions and Cyber Liability coverage covering the Harmonize Product, with coverage limits of not less than $1,000,000 per claim or per occurrence/$1,000,000 aggregate, placed either on an “occurrence” basis or on a “claims made” basis.

9.2 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Harmonize Platform.

9.3 Publicity. Customer agrees that Harmonize may refer to Customer’s name, logo and trademarks in Harmonize’s marketing materials, the Harmonize Platform or Harmonize’s website and social media. Harmonize will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

9.4 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

9.5 Waiver. No waiver of any rights hereunder will be effective unless agreed to in writing by both parties. Any such waiver will be only to the specific provisions and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

9.6 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

9.7 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

9.8 Governing Law; Venue. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

9.9 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to Customer must be sent to Customer’s email or other address as set forth in Customer’s account information. Notices to Harmonize must be sent to the following address: Harmonize Technologies Inc., 221 Main Street, Suite 90, Los Altos, CA 94022, Attn: Legal.

9.10 Entire Agreement. This Agreement (including all Order Forms) comprises the entire agreement between Customer and Harmonize with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Harmonize, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

9.11 Force Majeure. Excluding payment obligations, neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

9.12 Government Terms. Harmonize provides the Harmonize Platform, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Harmonize Platform, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Harmonize Platform were developed fully at private expense.

9.13 Interpretation. For purposes hereof, “include”, “includes”, “including”, or any variation thereof shall always be construed as if followed by the words “without limitation”.