Harmonya
Terms and Conditions

Terms and Conditions

THIS AGREEMENT, INCLUDING ANY OF ITS EXHIBITS, ANNEXES, APPENDIXES OR OTHER DOCUMENT TO WHICH THIS SAAS AGREEMENT INCORPORATES, AND/OR IS INCORPORATED, BY REFERENCE (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTES A BINDING AGREEMENT BETWEEN THE CUSTOMER IDENTIFIED IN THE RESPECTIVE SOW (AS DEFINED BELOW) (“CUSTOMER”) AND HARMONYA INC AND ITS AFFILIATES (THE “COMPANY”). Company and Customer shall be referred to herein, each a “Party” and collectively, the “Parties”. All capitalized terms in this Agreement shall have the same meaning as in the SOW, unless expressly defined otherwise in this Agreement

BY SIGNING THE SOW (THE DATE OF SUCH OCCURRENCE BEING THE “EFFECTIVE DATE”), CUSTOMER ACKNOWLEDGES THIS AGREEMENT AND REPRESENTS THAT IT HAS FULLY READ AND UNDERSTOOD, AND AGREES TO BE BOUND BY, THIS AGREEMENT.

IF CUSTOMER DOES NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, CUSTOMER MUST NEITHER SIGN THE SOW NOR INSTALL OR USE ANY PART OF THE SOLUTION.

The language of this Agreement and all attachments or amendments to this Agreement, contract interpretations, notices and dispute resolutions is hereby expressly agreed to be the English language. By entering into the Agreement, Customer hereby irrevocably and unconditionally waives any law applicable to Customer requiring that the Agreement be localized to meet Customer’s language or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.

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1. Definitions. The following capitalized terms shall have the meanings set forth below:some text
   1. “Initial Subscription Term” means the Services initial subscription period specified in a respective SOW (including, if relevant, any trial period).
   2. “SOW” means the Statement of Work issued by the Company and agreed to by Customer by clicking and/or execution, as applicable, for the provision of the applicable license and services granted under this Agreement based in the license tier selected by the Customer.
   3. “Users” means an employee of Customer authorized to access and use the Platform.
2. Subscription.  Company agrees to provide Customer with the services in accordance with the terms of this Agreement and as specified in any SOW that shall, from time to time, be executed by the Parties and made a part of this Agreement. The SOW includes certain specifications related to the Services and Data  provided under this Agreement, such specifications may include the type of data, elements comprising the Data, delivery method (including use of any enabling technologies), and frequency of delivery and timing of delivery (“Data”). Unless otherwise explicitly stated in an SOW, Company will deliver all Data   to Customer via an industry standard method acceptable to Customer, or as otherwise reasonably requested by Customer.  Subject to the terms and conditions of this Agreement, and each respective SOW, Company hereby grants Customer, during the Term (as defined below), a limited, non-exclusive, non sublicensable, non-transferable license to remotely access (i.e. on a SaaS basis) and/or use (as the case may be) any entitlement(s) with respect to Company’s proprietary technology platform for attribution management, data enrichment and insights (“Platform”) solely for Customer’s internal business purposes. 
3. Account. The Platform may be accessed solely by authorized Users. In order to access the Platform, Customer and/or its Users may be required to set up an administrative account with Company (“Account”). Customer will ensure that the Users comply with the terms of this Agreement at all times; and shall be fully responsible and liable for any breach of this Agreement by a User. Customer shall be further responsible and liable for all activities of its Users and all activities that occur under or in its Account. Customer will require that all Users keep their user ID and password information strictly confidential. Customer shall immediately report any unauthorized access or use of the Platform to the Company and take immediate remedial action to comply with the terms of this Agreement and the applicable SOW.
4. Customer Data. While using the Platform and Services, Customer may provide, upload, transmit, or make available to Company certain data (“Customer Data”). As between the Parties, Customer is, and shall be, the sole and exclusive owner of the Customer Data. Customer hereby grants Company and its affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Company's subcontractors, if applicable), non-transferable right and license,  to access and use the Customer Data in order for Company to provide the Platform. Customer represents and warrants that it owns or has acquired all rights and consents necessary for Company to use the Customer Data, and that it has the authority to provide Company the Customer Data.
5. Restrictions on Use. Customer must not, and shall not allow any third party to: (i) circumvent, disable or otherwise interfere with features that enforce limitations on use of the Platform and the Services; (ii) allow any unauthorized third party to use the Platform, the Services and/or the Data; (iii) sell, rent, lease, license or timeshare the Platform, the Services and/or the Data ; (iv) copy, modify, reverse engineer, decompile, disassemble or derive, or attempt to derive, the source code of, the Platform; (v) use the Platform to develop a competing service or product; (vi) interfere or attempt to interfere with the integrity or proper working of the Platform; and/or (vii) use the Platform and/or the Services in any unlawful manner or in breach of this Agreement.
6. Title. The intellectual property rights and all other rights, title and interest of any nature in and to the Platform, the Services and the Data, and any related content, documentation and services provided or made available by Company hereunder, including all modifications, upgrades, customizations and derivative works (whether or not permitted under this Agreement) to the Platform, the Services and/or Data, are and shall remain the exclusive property of Company and its licensors. Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests to Customer or any third party. Company and its licensors reserve any and all rights not expressly granted in this Agreement. 
7. Mutual Representations. Each Party warrants that: (a) It has the power and authority, and has taken all corporate action required, to enter into and fully perform this Agreement, and its entry into and performance of this Agreement do not and will not violate any agreement to which it is bound; and (b) it will comply with all applicable laws, rules, regulations, and ordinances in its performance of this Agreement. 
8. Payments.
   1. Fees. Customer’s access to and use of the Platform and Services is subject to Customer’s payment of the of the applicable fees set forth in the SOW. 
   2. Payment Terms. .Unless otherwise specified in the SOW: (i) Customer will pay all amounts due under this Agreement in U.S. Dollars currency, (ii) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice, and (iii) all fees and other amounts paid hereunder are non-refundable. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. 
   3. Taxes. All fees payable to Company are exclusive of applicable taxes (including without limitation VAT), withholdings or duties. Customer shall be responsible for all taxes, withholdings and duties of any kind payable with respect to its subscription to the Platform or the Services arising out of or in connection with this Agreement, other than taxes based on Company's net income, shall be borne and paid by Customer. 
9. Suspension. If Company believes that Customer is using the Platform or the Services in a manner that may cause harm to Company or any third party then Company may, without derogating from Company’s right to terminate this Agreement for any breach hereof, suspend Customer's access to and use of the Platform until such time as Company believes the threat of harm, or actual harm, has passed. 
10. Term and Termination.
    1. This Agreement shall commence on the Effective Date and, unless terminated in accordance with this Section ‎‎10, shall continue in full force and effect until all applicable SOWs expire or terminate (“Term”).
    2. With respect to each respective SOW, unless otherwise specified in the applicable SOW, following the Initial Subscription Term and/or any Renewal Subscription Term (as defined below) (the Initial Subscription Term together with all Renewal Subscription Term(s) (if any), the “Subscription Term”), the SOW shall automatically renew for successive one year terms (each at Company’s then current pricing and packaging or as otherwise mutually agreed by the Parties in writing), (each, a “Renewal Subscription Term”), unless either Party notifies the other Party in writing of its intent not to renew the SOW, not less than sixty (60) calendar days prior to the expiration of the then-current Subscription Term.
    3. Termination for Breach. Either Party may terminate this Agreement with immediate effect if the other Party breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) thirty (30) days after having received written notice thereof.
    4. Termination for Bankruptcy.  Each Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.
    5. Effect of Termination. Upon termination in accordance with the provisions of this Agreement, Customer shall (i) immediately discontinue all access and use of the Platform and shall promptly, but in any event within three (3) days, permanently delete all copies of the documentation in Customer’s possession or control; and (ii) pay any outstanding amounts owed to Company under the SOW and this Agreement. 
    6. Survival.  This Section 10.5 and Sections 4, 5, and 11 through 18 shall survive termination of this Agreement. 
11. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM, SERVICES AND THE DATA ARE PROVIDED ON AN “AS IS” BASIS, AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY WILL NOT BE LIABLE OR RESPONSIBLE FOR: (A) ANY TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES); AND/OR (B) ANY ISSUE THAT IS ATTRIBUTABLE TO CUSTOMER’S SOFTWARE OR CUSTOMER’S INTERNET OR DATA SERVICE PROVIDER.
12. Limitation of Liability.
    1. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOSS OF INCOME, PROFITS, GOODWILL, REPUTATION, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THIS AGREEMENT OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE PLATFORM AND/OR THE DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, COMPANY'S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES UNDER THIS AGREEMENT, OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES AND/OR THE DATA, SHALL NOT, UNDER ANY CIRCUMSTANCE, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO COMPANY WITHIN THE TWELVE (12) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
13. Confidential Information. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (“Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. The terms of this Agreement are Confidential Information of Company.
14. Indemnification. Customer hereby agrees to defend, indemnify and hold Company harmless against any damages awarded against Company by a court of competent jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding arising from or related to: (i) breach of any of Customer’s obligations, representations or warranties hereunder; or (ii) Customer’s gross negligence or willful misconduct. 
15. Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall create a partnership, joint venture, agency, or employment relationship between the Parties. Neither Party may make, or undertake, any commitments or obligations on behalf of the other.
16. Assignment. This Agreement and any rights or obligations hereunder: (i) may not be transferred or assigned by Customer without the prior written consent of Company which may not be unreasonably withhold; but (ii) may be transferred or assigned by Company. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each Party and its respective assigns. Any prohibited assignment shall be null and void.
17. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of laws’ provisions. All disputes arising out of this Agreement shall be subject to, and each Party hereby consents to, the sole and exclusive jurisdiction of the competent courts located in New York County, New York. Notwithstanding the foregoing, Company may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights.
18. General. The headings used in this Agreement are for convenience only and shall in no case be considered in construing this Agreement. Any capitalized but undefined term in the SOW shall have the meaning given to it in this Agreement. In the case of an inconsistency or contradiction between this Agreement and any SOW, this Agreement shall prevail. Company may identify Customer as a customer on Company’s website and marketing materials. The Parties shall each have the right to issue a press release regarding the Parties' relationship hereunder. The content and timing of release of any such press release shall be subject to the other Party's prior written approval. This Agreement: (i) comprises the entire agreement between the Parties regarding the subject matter hereof and supersedes and merges all prior understandings, oral and written, between the Parties relating to the subject matter of this Agreement; and (ii) may only be modified by a writing that is mutually signed by both Parties. Except for each Party's payment obligations hereunder, neither Party shall be liable for any failure to perform due to causes beyond its reasonable control. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. No failure or delay in exercising any right hereunder by either Party shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise. Each notice and/or demand given by one Party to the other pursuant to this Agreement shall be given in writing and shall be sent by registered mail or delivered by hand to the other Party at the addresses set forth above and such notice and/or demand shall be deemed given at the expiration of 5 business days from the date of mailing by registered mail or immediately if delivered by hand. Such address shall be effective unless notice of a change in address is provided by registered mail to the other Party.

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