These Harness Subscription Terms (collectively, the “Agreement”) between Harness Inc., a Delaware corporation, with its principal place of business at 55 Stockton St., 8th Floor, San Francisco, CA 94108, U.S.A. (“Harness”, “we”, “us” or “our”) and you (“Customer”, “you” or “your”) applies to your use of the Harness Platform (as defined below). By clicking on the designated button, entering an Order Form (as defined below), or by downloading, installing, accessing or using the Harness Platform, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of your organization or entity, you represent that you have the authority to bind such organization or entity to the Agreement, and the terms “Customer”, “you” and “your” will refer to such organization or entity. If you do not agree to the terms of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not download, install, access or use the Harness Platform. “Harness Platform” means the downloadable and/or online software products that are specified in the applicable Order Form, or otherwise accessed by you, and subsequent updates made generally available by Harness under this Agreement, inclusive of the Delegate. The Harness Platform excludes Third Party Products, Extensions, and Beta Services.
1. Harness Platform
1.1. License Grant. Subject to payment of the applicable fees, Harness’s receipt of a purchase order number from Customer (if needed), and Customer’s ongoing compliance with the terms of this Agreement, Harness grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Software for internal business purposes in accordance with the Documentation (as defined below) during the applicable License Term, only for the number of License Units (as defined below) as specifically authorized by the applicable Order Form. “License Term” means the duration of your subscription or license to the applicable Harness Platform beginning and ending on the start and end dates, respectively, specified in the applicable Order Form, which include the Initial Term (as defined in Section 5), and all Renewal Terms (as defined in Section 5), as applicable. “License Unit” means a specific license type or metric, and a numeric quantity thereof, identified in an Order Form, to establish the extent and amount of Customer’s license or right to use to the Harness Platform. All Order Forms are hereby incorporated into, supplement, and form a part of this Agreement. “Order Form” means an ordering document or online order that sets forth the applicable Harness Platform or Services (as defined below), fees and payment terms and start and end dates (as applicable) and is entered into between Customer and Harness, or Customer and an authorized reseller.
1.2. Restrictions on Use. Except as otherwise expressly provided in this Agreement, Customer shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau basis, or use in an application service provider or managed service provider environment, or otherwise generate income from the Harness Platform or Extensions; (b) copy the Harness Platform or Extensions onto any public or distributed network, except for an internal and secure cloud computing environment; (c) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Harness Platform or Extensions, or attempt to discover any source code or underlying algorithms or other operational mechanisms of the Harness Platform or Extensions (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to Harness); (d) modify, adapt, translate or create derivative works based on all or any part of the Harness Platform or Extensions; (e) violate the Acceptable Use Policy (“AUP”) located at https://harness.io/legal/aup; or (f) use free or trial accounts for certain products after having purchased License Units for the same products; (g) attempt to probe, scan or test the vulnerability of the Harness Platform (excluding the Delegate); (h) breach the security or authentication measures of the Harness Platform without proper authorization or willfully render any part of the Harness Platform or Extensions unusable; or (i) otherwise use the Harness Platform in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form. Additionally, Customer shall not export or re-export, directly or indirectly, any Harness Platform or technical data or any copy, portions or direct product thereof (i) in violation of any applicable laws and regulations, (ii) to any country for which the United States or any other government, or any agency thereof, at the time of export requires an export license or other governmental approval, including Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, and the so-called Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine, or any other Group D:1 or E:2 country (or to a national or resident thereof) specified in the then current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or any successor supplement or regulations, without first obtaining such license or approval) or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.
“Delegate” means the software agent provided by Harness to Customer which facilitates Customer’s use of the Harness Platform. For the purposes of this Agreement, the Delegate is not considered an Extension.
1.3. Free Access. If the Harness Platform is provided to Customer on a limited trial, free, or beta basis (“Free Access”), Customer agrees that such use and access of the Harness Platform is governed by this Agreement. Harness shall have the right to downgrade, limit or otherwise modify the Harness Platform provided for a Free Access account at any time without notice to Customer, and Harness disclaims all liability arising from Free Access, and shall have no liability, nor warranty, indemnity, maintenance, support, or security obligations to Customer with respect to any such Free Access. Customer may only use the number and type of License Units for the specified duration indicated by Harness prior to Customer downloading or accessing the Harness Platform with respect to any such Free Access. Harness may immediately revoke and terminate any Free Access at any time and without any notice to Customer. Customer agrees to provide feedback related to the Harness Platform as reasonably requested by Harness with respect to any Free Access. Customer agrees that Free Access is not a guarantee of any future Harness Platform or Harness product features. Customer will not utilize a Free Access account for the same products it has purchased.
1.4. Unauthorized Use. Customer shall notify Harness promptly of any unauthorized use or access of the Harness Platform (including unauthorized users or unauthorized disclosure of any password or account), or any other known or suspected breach of security or misuse of the Harness Platform. Customer is responsible for use of the Harness Platform (and all other acts or omissions) by its employees, contractors, Affiliates or other users that it allows to use or access the Harness Platform.
1.5. Support. During the License Term, Harness shall provide support to Customer in accordance with Harness’s then-current support policy, and as identified in an Order Form. In the event that the level of support is not identified in the Order Form, Customer shall receive a “standard” level of support that is included with the Harness Platform at no additional cost. For any support tier above standard support, the applicable support fees will be a percentage of all of Customer’s Harness Platform-based fees, and will be prorated for mid-year expansions based on the remaining months in the then current Initial Term or Renewal Term. Further, Customer agrees to facilitate any connections and access necessary for Harness to (i) deliver, deploy and provide the Harness Platform as provided hereunder and (ii) to perform its obligations hereunder (including any support obligations). Notwithstanding anything to the contrary in this Agreement, Harness has no warranty, indemnity or other obligation or liability with respect to modifications made to the Harness Platform or Documentation (as defined below) by Customer or on Customer’s behalf other than the generally available updates provided by Harness.
1.6. Purchasing Through Authorized Resellers. If you purchase a subscription to the Harness Platform or any Services through a Harness authorized reseller (“Partner”), this Agreement and any agreed upon usage limitations will govern the use of such Harness Platform and Services unless otherwise agreed by Harness and Customer. You also agree that Harness is an express third party beneficiary of your agreement with any authorized reseller. Your payment obligations for the Harness Platform and Services will be with the authorized reseller as further described in Section 2.6 below, not Harness, and you will have no direct fee payment obligations to Harness, provided that Harness may terminate this Agreement if you breach any of your payment obligations to such authorized reseller for the Harness Platform and Services. Any terms agreed to between you and the authorized reseller that are in addition to or inconsistent with this Agreement are solely between you and the authorized reseller. No agreement between you and an authorized reseller is binding on Harness, nor will it have any force or effect with respect to the rights in, or the operation, use or provision of, the Harness Platform or Services.
1.7. Contractors and Third Party Providers. You may permit your authorized consultants, contractors, and agents (“Third Party Providers”) to access and use the Harness Platform, but only on your behalf in connection with providing the Harness Platform to you, and subject to the terms and conditions of this Agreement. Any access or use by a Third Party Provider will be subject to the same limitations and restrictions that apply to you under this Agreement, and you will be responsible for any Third Party Provider’s actions or omissions relating to its use of the Harness Platform. The aggregate use by you and all of your Third Party Providers must not exceed the allotted License Units (without paying the overage fees set forth in Section 2.2), and nothing in this Section is intended to or will be deemed to increase such License Units.
1.8. Services. Harness will use commercially reasonable efforts to provide the Services as described in an applicable Order Form (or statement of work referencing this Agreement entered into between the parties (“SOW”)), if any. Harness will retain all right, title and interest in and to the deliverables and other results of the Services under this Agreement, and, subject to payment of the applicable fees and compliance with the terms of this Agreement, Harness hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to use such deliverables and results solely for Customer’s internal business purposes and only in connection with Customer’s permitted use of the Harness Platform. The Services (and any deliverables or other results) are not subject to any acceptance procedure. “Services” mean any training, enablement, consulting, installation and/or other professional services described in the applicable Order Form or SOW.
1.9. Customer Affiliates. Customer Affiliates may purchase and use the Harness Platform and Services subject to the terms of this Agreement by executing Order Forms or SOWs hereunder that incorporate by reference the terms of this Agreement. In each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order Form(s) or SOW(s), and Customer Affiliate agrees to be bound by this Agreement. “Affiliate” means, with respect to Harness or Customer, any entity that directly or indirectly controls, is controlled by, or is under common control with Harness or Customer, respectively. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.10 Security. Harness will establish and maintain appropriate administrative, technical, and physical safeguards and controls to: (i) help ensure the ongoing confidentiality, integrity, availability, and resiliency of the Harness Platform and Customer Data, and (ii) have in place a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures to help ensure the security of the Harness Platform’s processing.
1.11 Extensions. Customer may use the Extensions solely in connection with the applicable Harness Platform subject to the Documentation, open source licenses, the applicable terms within this Agreement (including with respect to the Term), and the payment of any Fees associated with the Extensions. “Extension” means any separately downloadable or accessible suite, agent, configuration file, add-on, technical add-on, plug-in, example module, command, function, playbook, content or application that enables or extends the features or functionality of the applicable Harness Platform.
1.12 Third Party Products. This Agreement does not govern Customer’s use of Third Party Products used in connection with the Harness Platform. Third Party Products are governed solely by the terms and conditions between Customer and the Third Party Product developer. Harness does not make any commitments or claims regarding security, confidentiality, or performance of any Third Party Products, and specifically disclaims any liability regarding Third Party Products. Customer acknowledges and accepts that Third Party Products: (i) are activated and used at the sole risk of Customer; (ii) are not warranted, supported, or endorsed by Harness; and (iii) may degrade the performance of the Harness Platform beyond Harness’s reasonable control. To the extent any Third Party Product accesses, processes, or gathers personal data, the applicable third party is Customer’s direct data processor, and is not acting as a data sub-processor of Harness. “Third Party Product(s)” means any product, software, application, platform, or service (i) selected by Customer (ii) not developed by Harness, and (iii) which integrates, interacts, or interoperates with, or adds functionality to, the Harness Platform.
2.1. Fees. You agree to pay all fees specified in the Order Form and/or SOW, or as otherwise agreed upon by the parties. Fees are non-cancelable, non-refundable, and due and payable within thirty (30) days from the date of the invoice, or as otherwise specified in the Order Form. Unless otherwise agreed to by the parties in writing, all fees hereunder are payable in United States dollars. Additionally, Customer must provide all purchase order numbers (if applicable) to Harness by no later than the applicable Start Date as specified in the Order Form. All payments shall be made through automated clearing house (ACH) transfers, or wire transfers, to Harness’s designated account, unless otherwise agreed by Harness. Fees do not include any customizations of the Harness Platform (nor support for any such customizations, unless otherwise agreed in writing).
2.2. Excess Usage. If Customer’s use of the Harness Platform exceeds the number of License Units set forth in the Order Form, Customer will be billed for and Customer will pay those overages at a prorated amount for the remainder of the applicable License Term under the Order Form, based on the pricing specified in the applicable Order Form. If Harness believes in good faith that Customer’s use of the Harness Platform exceeds the number of License Units set forth on the Order Form, Harness may (i) audit Customer’s use of the Harness Platform (not more frequently than twice per calendar year), upon at least twenty-four (24) hours’ notice, and (ii) require that Customer provide Harness with all relevant records within five (5) business days of such request in order to determine if Customer’s use of the Harness Platform exceeds the number of authorized License Units.
2.3. Payment Terms. Customer acknowledges that purchases made under this Agreement are neither contingent on the delivery of any future functionality or features of the Harness Platform nor dependent on any oral or written public comments made by Harness regarding future functionality or features of the Harness Platform. All fees shall be fixed during the Initial Term (as defined in Section 5) unless Customer purchases additional License Units. If the number of purchased License Units does not increase upon renewal, then all Harness Platform and support fees will increase by the percentage specified in the Order Form at the start of each applicable Renewal Term (as defined in Section 5). If Customer is overdue on any payment, then Harness may (i) require that Customer pay a late fee equal to the lesser of 1.5% of the then-outstanding unpaid balance per month or the maximum amount allowable by law, and/or (ii) suspend Customer’s use of and access to the Harness Platform and/or Services associated with Customer’s account until such non-payment is corrected. Customer represents and warrants that the billing and contact information provided to Harness is complete and accurate, and Harness shall have no responsibility for any invoices that are not received due to inaccurate or missing information provided by Customer. All amounts invoiced under this Agreement and any Order Form shall be paid by Customer in full without any set-off, counterclaim, deduction, or withholding (excluding any tax withholding deductions as required by law).
2.4 Credit Cards. If Harness authorizes you to pay by credit or debit card in writing, you: (i) will provide Harness or its designated third-party payment processor with valid credit or debit card information; and (ii) hereby authorize Harness or its designated third-party payment processor to charge such credit or debit card for all items listed in the applicable Order Form or SOW or as otherwise agreed by the parties. Such charges must be paid in advance or in accordance with any different billing frequency stated in the applicable Order Form or SOW (if applicable). You are responsible for providing complete and accurate billing and contact information and notifying Harness in a timely manner of any changes to such information.
2.5 Taxes. The fees paid by Customer are exclusive of all taxes, levies, or duties (“Taxes”) imposed by taxing authorities, if any, and Customer shall be responsible for payment of all such Taxes, excluding taxes based on Harness’s income. Customer represents and warrants that the billing and contact information provided to Harness is complete and accurate, and Harness shall have no responsibility for any invoices that are not received due to inaccurate or missing information provided by Customer.
2.6 Payment Through Partner. Notwithstanding anything herein to the contrary, if Customer has licensed the Harness Platform from a Harness Partner, then Customer shall make its payments for the Harness Platform directly to such Partner, and the payment terms agreed by Customer and such Partner shall supersede and govern to the extent anything in this Section 2 conflicts with such payment terms.
3.1. Confidential Information and Restrictions. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as “confidential” or “proprietary,” or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. “Confidential Information” does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its Affiliates, employees, consultants, subcontractors, subprocessors, agents and professional advisers (“Representatives”) who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants, and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. The Receiving Party shall be liable for any breach of this section by its Representatives. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt without any restriction on its disclosure; (ii) is or has become public knowledge or publicly available 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.
3.2. Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
3.3. Feedback. Customer acknowledges and agrees that (a) any questions, comments, suggestions, ideas, feedback or other information about Harness, the Harness Platform, Extensions, the Services, the Documentation or other materials provided by Harness (collectively, “Feedback”) provided by Customer are non-confidential, (b) Harness will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality, and (c) Harness 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.
4. Proprietary Rights
4.1 Ownership. Harness owns and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Harness Platform (and all derivatives, improvements or enhancements thereof), System Data, Delegate, Extensions, Documentation, the results generated by the Harness Platform, and any Services, or any materials generated by Harness.
4.2 FOSS; Third Party Components. Customer acknowledges that the rights granted under this Agreement do not provide Customer with title to or ownership of the Harness Platform, in whole or in part. Certain “free” or “open source” based software (the “FOSS Software”) and third party software included with the Harness Platform (the “Third Party Software”) is shipped with the Harness Platform but is not considered part of the Harness Platform hereunder. Use, reproduction, and distribution of FOSS Software is governed by the terms of the applicable open source software license and not this Agreement. Harness will provide Customer with a list of the FOSS Software and Third Party Software embedded in the Harness Platform upon request. With respect to Third Party Software included with the Harness Platform, such Third Party Software suppliers are third party beneficiaries of this Agreement. The Harness Platform and Third Party Software may only be used and accessed by Customer as prescribed by the instructions, code samples, on-line help files and technical documentation made publicly available by Harness for the Harness Platform, as may be updated from time to time by Harness (the “Documentation”). Harness will not be responsible for any act or omission of any third party, including the third party’s access to or use of any Customer data or the performance of the Harness Platform in combination with such Third Party Software.
5. Term and Termination
This Agreement will be in full force and effect beginning on the earlier of the start date of the first Order Form entered into hereunder and the date you first access or otherwise use the Harness Platform, and will remain in effect until this Agreement is terminated pursuant to this Section. Termination of a specific Order Form will not affect the effectiveness of this Agreement or any other Order Form. Unless indicated otherwise in an Order Form, each Order Form shall be valid from the earliest start date therein through the initial end date therein (the “Initial Term”), and shall automatically renew for additional successive twelve (12) month terms (each, a “Renewal Term”), unless either party provides notice of non-renewal no less than thirty (30) days prior to the end of then-current Initial Term or Renewal Term, as applicable. If either party commits a material breach of this Agreement, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement, except that Harness may immediately terminate this Agreement and/or terminate or suspend Customer’s use of and access to the Harness Platform associated with Customer’s account upon Customer’s breach of Section 1.2 (Restrictions on Use) or Section 2.1 (Fees). Additionally, Harness may temporarily suspend access to the Harness Platform if Customer’s use poses a security risk or adversely impacts Harness’s business. Either party may also terminate this Agreement upon written notice if (a) the other party suspends payment of its debts or experiences any other insolvency or bankruptcy-type event or (b) there are no Order Forms or SOWs then in effect. Upon expiration or termination of an Order Form, for any reason, all rights granted to Customer with respect to such Order Form shall terminate and Customer shall destroy any copies of the Harness Platform and Documentation provided under such Order Form within Customer’s possession and control. Upon any termination of this Agreement, each Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control. All payment obligations that have accrued as of such expiration or termination, any other rights or obligations that by their nature should survive, along with Sections 1.2, 1.3, 1.4, 1.6, 1.7, 2, 3, 4, 5, 6.2 and 7 through 10, will survive any expiration or termination hereof.
6.1. Harness Platform Warranty. Harness warrants that during the first thirty (30) days after the beginning of a License Term under the applicable Order Form, the Harness Platform will, in all material respects, conform to the functionality described in the then-current Documentation for the applicable version of the Harness Platform. Harness’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for a breach of this warranty shall be that Harness will use commercially reasonable efforts to repair or replace the Harness Platform to conform in all material respects to the Documentation, and if Harness is unable to materially restore such functionality within thirty (30) days from the date of written notice of breach of this warranty by Customer, Customer shall be entitled to terminate the applicable Order Form upon written notice to Harness, and Harness shall promptly provide a pro-rata refund of the subscription fees under such Order Form that have been paid in advance for the remainder of the License Term under such Order Form (beginning on the date of termination). To be eligible for the foregoing remedy, Customer must notify Harness in writing of any warranty breaches within such warranty period, and Customer must have installed (if applicable), used and configured the Harness Platform in accordance with this Agreement and the Documentation.
6.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, THE HARNESS PLATFORM, DOCUMENTATION, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED “AS IS,” AND HARNESS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE HARNESS PLATFORM. HARNESS EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE HARNESS PLATFORM, DOCUMENTATION, SERVICES, MAINTENANCE OR SUPPORT. Additionally, Harness is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and Customer acknowledges that the Harness Platform, Delagate, Extensions, Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Harness Platform is not fault-tolerant and is not designed or intended for use in hazardous environments, including without limitation, in the operation of aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles or weaponry systems, or any other application in which failure of the Harness Platform could lead to death or serious bodily injury of a person, or to severe physical or environmental damage (each, a “High Risk Use”). Harness expressly disclaims any express or implied warranty or representation of fitness for High Risk Use. Harness shall not be liable to Customer for any loss, damage or harm suffered by Customer that is directly or indirectly caused by Customer’s unauthorized use of the Harness Platform to process Prohibited Data. Prohibited Data means: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data or financial account information, including bank account numbers or other personally identifiable financial information; (d) social security numbers, driver’s license numbers, or other government identification numbers; (e) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (“GLBA”) (or related rules or regulations); or (f) any data similar to the above protected under foreign or domestic laws.
6.3. Mutual Warranty. Each party hereby represents and warrants to the other that: (a) such party has the right, power, and authority to enter into this Agreement and to fully perform all of its obligations hereunder, (b) entering into this Agreement does not and will not violate any agreement or obligation existing between such party and any third party, and (c) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
6.4. Beta Software. From time to time, Customer may have the option to participate in a program with Harness where Customer is given access to alpha or beta software, services, products, features and documentation (collectively, “Beta Software”) offered by Harness. The Beta Software is not generally available and may contain bugs, errors, defects or harmful components. Accordingly, Harness is providing the Beta Software to Customer “as is.” Notwithstanding anything to the contrary in this Agreement, Harness makes no warranties of any kind with respect to the Beta Software, whether express, implied, statutory or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement, and has no indemnity or other obligation or liability with respect to Beta Software. Harness does not warrant that the Beta Software will meet any specified service level, or will operate without interruptions or downtime.
7.1. By Harness. Harness agrees to defend, at its expense, Customer against (or, at Harness’s sole option, settle) any third party claim to the extent such claim alleges that the Harness Platform infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and Harness shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim.
7.2. Remedies. In the event that the use of the Harness Platform is, or in Harness’s sole opinion is likely to become, subject to such a claim, Harness, at its option and expense, may (a) replace the applicable Harness Platform with functionally equivalent non-infringing technology, (b) obtain a license for Customer’s continued use of the applicable Harness Platform, or (c) terminate the applicable Order Form and provide a pro-rata refund of the subscription fees under such Order Form that have been paid in advance for the remainder of the License Term under such Order Form (beginning on the date of termination).
7.3. Limitations. The foregoing indemnification obligation of Harness will not apply: (1) if the Harness Platform is or has been modified by Customer or its agent; (2) if the Harness Platform is combined with other non-Harness products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Harness Platform or breach of this Agreement; or (4) if Customer fails to install or use any functionally equivalent non-infringing aspect of the Harness Platform that would have avoided the alleged infringement. The foregoing shall be Customer’s sole remedy with respect to any claim of infringement of third party intellectual property rights.
7.4 By Customer. Customer agrees to defend, at its expense, Harness and its Affiliates, its suppliers and its resellers against any third party claim to the extent such claim alleges, arises from, or is made in connection with Customer’s breach of Section 1 (Harness Platform) or Section 10 (Data Use), any High Risk Use, or Customer’s negligence or willful misconduct. Customer shall pay all costs and damages finally awarded against Harness by a court of competent jurisdiction as a result of any such claim.
7.5 Indemnification Requirements. In connection with any claim for indemnification under this Section 7, the indemnified party must promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its obligations under this Section 7, except to the extent that such failure materially prejudices the indemnifying party’s defense of such claim. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind either party shall not be final without the other party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Customer’s consent shall not be required when Harness is the indemnifying party if the settlement involves only the payment of money by Harness.
8. Limitation of Liability
The limits below will not apply to the extent prohibited by applicable law. EXCEPT FOR LIABILITY ARISING FROM VIOLATIONS OF SECTION 1.2 (RESTRICTIONS ON USE), CUSTOMER’S PAYMENT OBLIGATIONS, OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER INDIRECT DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT OR CLAIM UNDER THE APPLICABLE ORDER FORM OR SOW. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. Data Use
9.1 System Data. Harness shall have the right collect and analyze System Data (including, without limitation, information concerning Customer and data derived therefrom), and Harness will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Harness Platform and for other development, diagnostic and corrective purposes in connection with the Harness Platform and other Harness offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. “System Data” means data collected by Harness regarding the Harness Platform that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Harness Platform.
9.2 Customer Data and License to Customer Data. “Customer Data” means electronic data submitted by Customer through the Harness Platform. As between the parties, Customer exclusively owns and reserves all rights, title, and interest in and to the Customer Data and Customer’s software applications (and all derivatives, modifications, improvements, or enhancements related to any of the foregoing), which includes all copyright, patent, trade secret, trademark and all other intellectual property rights related to any of the foregoing. Customer hereby grants to Harness and its Affiliates a non-exclusive right to access, use, and process Customer Data, as necessary to provide the Harness Platform and the Services in accordance with this Agreement, and to improve the functioning and usability of the Harness Platform. Customer is solely responsible for the quality and integrity of Customer Data. Customer represents and warrants that it has obtained all the necessary consents to provide Harness with the foregoing license to Customer Data.
9.3 Personal Identifiable Information. If Customer provides Harness with any personally identifiable information (“Personal Data”), Customer represents and warrants that such Personal Information is not Prohibited Data, has been collected by Customer in accordance with the provisions of all applicable data protection laws and regulations, and that Customer has all right and consents necessary to provide such Personal Data to Harness.
10.1 Governing Law; Venue. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A, as if performed wholly within the state and without giving effect to the principles of conflict of law. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving San Francisco, California. The Uniform Computer Information Transactions Act (UCITA) nor the United Nations Convention for the International Sale of Goods will apply to this Agreement.
10.2 No Waiver. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
10.3 Entire Agreement. This Agreement (including each Order Form and SOW) represents the entire agreement between the parties and supersedes any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement.
10.4 Order of Precedence. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice, statement of work or similar document (other than the Order Form or SOW, which will take precedence), even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement.
10.5 Interpretation. All capitalized terms used but not defined in an Order Form or SOW shall have the meanings provided to them in the Agreement. For purposes of this Agreement, “including” means “including without limitation.”
10.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
10.7 Cumulative Remedy. The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity.
10.8 Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Harness Platform.
10.9 Assignment and Delegation. Customer may not assign this Agreement without the prior written consent of Harness, and any purported assignment in violation of this Section 10.9 shall be void. Harness may assign, transfer or subcontract this Agreement in whole or in part without Customer’s consent. Upon any assignment of this Agreement by Customer that is approved by Harness or other corporate transaction involving Customer that would materially increase its Licensee Unit usage, if the Order Form contains a subscription for an “unlimited” amount of Licensee Units, such subscription will, with respect to Customer or the successor entity, as applicable, be capped at the monthly average of authorized Licensee Units used by Customer under such Order Form during the three full calendar months prior to such assignment (or if the Harness Platform has been used for fewer than three full calendar months, then the monthly average based on a pro rata calculation of such use).Harness reserves the right to perform its obligations from locations and/or through use of Affiliates, contractors and subcontractors, worldwide, provided that Harness will be responsible for such parties.
10.10 Force Majeure. With the exception of Customer’s payment obligations, no delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, cyberattacks, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
10.11 Publicity. Customer agrees that Harness may refer to Customer by its trade name and logo, and may briefly describe Customer’s business, in Harness’s marketing materials and website. Additionally, Customer and Harness shall collaborate in good faith for the purpose of executing various co-marketing activities (e.g., customer testimonial videos, case study write ups, conference speaking slots, serving as a referenceable customer, etc.). The parties agree that all co-marketing activities will be contingent on a successful deployment of the Harness Platform.
10.12 Notice. Harness may give notice to Customer by electronic mail to Customer’s email address as provided by Customer on the Order Form or on record in Customer’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address as provided by Customer on the Order Form or on record in Customer’s account information. Customer may give notice to Harness at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Harness at the following address or such other address as may be notified to Customer from time to time: Harness, 55 Stockton St., 8th Floor, San Francisco, CA 94108, Attn.: Legal Department. Notice under this Agreement shall be deemed given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next-day delivery by a recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.13 Updates. Harness may update this Agreement from time to time by providing you with prior written notice of material updates at least thirty (30) days in advance of the effective date. Such notice will be given in accordance with this section. Except as otherwise specified by Harness, (a) updates will be effective upon the effective date indicated at the top of this Agreement or in such notice, (b) your continued access or use of the Harness Platform or Services on or after the effective date of such updates constitutes your acceptance of such updates and (c) if you do not agree to such updates, you should stop using the Harness Platform and Services. However, if you have paid for a subscription to the Harness Platform, and we update this Agreement during your License Term, the updates with respect to that subscription will be effective upon your next Renewal Term, if applicable, and in this case, if you object to the updates, as your sole and exclusive remedy, you may choose not to renew, in accordance with the terms hereof. The updated version of the Agreement will supersede all prior versions.