Acceptance of Terms of Service.
By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
Registration and the Services.
To sign up for the Services, you must register for an account on the Services (an "Account").
If you are an investment professional (who may be a broker, investment adviser, certified public accountant, lawyer, or financial planner—and may work in many different settings, from large firms to small private practices) ("Professional Member"), you may sign up for a professional member account ("Professional Member Account"). If you are not a professional investor, but rather an investor who buys and sells securities for his or her personal account, and not for another company or organization ("Retail Member"), you may sign up for a retail member account ("Retail Member Account"). You may only sign up for each respective Account if you meet the relevant foregoing criteria, and you hereby warrant and represent that, by signing up for an Account, you meet such criteria and are not misrepresenting your status. By signing up for a Professional Member Account, User Content (defined below) you provide via the Services may be freely viewable by all registered users of the Service. However, if you register for a Retail Member Account, User Content you provide via the Services shall be viewable only by registered users that "follow" you.
The Services allow registered users to post investment perspectives and other User Content (defined below) and "follow" other registered users' activity, investment perspectives, and User Content via the Services. The Services also allow registered users to manage a virtual "fund" or "portfolio," to make simulated trades, and to rank these trades and portfolios. The virtual portfolio does not involve the exchange of real money or securities and is a simulation of the financial markets. In addition to these Terms of Service, this portfolio feature is governed by the General Portfolio Rules at http://www.hvst.com/info/portfolio_rules, where you can find additional details about this feature.
You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person's user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
For purposes of these Terms of Service, the term "Content" includes, without limitation, information, data, text, photographs, charts, stock and other financial information, videos, audio clips, written posts and comments, rankings, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, "Content" also includes all User Content (as defined below).
All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively "User Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate (except to the extent such User Content consists of your opinion, which is not verifiable), complete, up-to-date, and in compliance with all applicable laws, rules and regulations, including, but not limited to United States laws and regulations regarding insider trading and or the provision of insider information. As part of the Services, users may have the ability to interact with and view the User Content of other users. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
Not a Broker-Dealer.
You acknowledge and agree that we are not a broker-dealer, as such term is used in United States financial services regulations, and that we do not trade securities on our or another party's behalf as part of the Services, nor do we directly offer any financial advice of our own as part of the Services. You acknowledge that all financial opinions and advice provided through the Services are User Content, and we shall not be liable for your reliance on such User Content. You acknowledge and agree that we are not liable for any losses or gains that may arise from your reliance upon information provided through the Services or your interaction with other users. You acknowledge that you have sole responsibility for your investment decisions, that the Services are one source of information you may consult regarding investment decisions, and, you should not rely solely on any information provided through the Services with regard to any investment decisions you make. You acknowledge that other users that may provide information through the Services may hold positions in securities that they discuss and that they have no obligation to inform you of any change in their opinions or knowledge.
Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Site, the Services and our (and our successors' and assigns') businesses, including without limitation for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each user of the Site and/or the Services a non-exclusive, perpetual license to access your User Content through the Site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Availability of Content.
We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right to, but do not have any obligation to, (i) monitor, remove, edit, or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
Harvest Premium Products Terms and Conditions
“Ordering Document” means the cover page to this Agreement, an amendment to this Agreement or a supplemental ordering document, which shall be in writing and signed by both parties and shall specify the Platform, or other services to be acquired by Licensee.
“Platform” means software platform identified in an Ordering Document, including related end user documentation. This includes both access to “Investor Connect” (www.hvst.com/info/investor-connect) and “Harvest Private” (www.hvst.com/info/private).
“Users” means a distinct individual with rights under this Agreement to use the applicable Platform.
Harvest will provide Licensee with access privileges that permit Licensee to access, customize, and manage the established private network(s) including Licensee Data (as defined below) and other related data. As part of the implementation process, Licensee will identify an administrative user(s) who will be responsible for all private network settings, customization, and membership access. Licensee shall be responsible for the acts or omissions of any person who accesses the Platform using passwords or access procedures provided to or created, directly or indirectly, by Licensee. The Licensee will also receive all standard software upgrades that occur during the term of this Agreement, free of additional charge.
Subject to the terms and conditions of this Agreement and solely during the Term specified in the Ordering Document, Harvest grants to Licensee a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Platform only (i) in accordance with any documentation, and (ii) for Licensee’s internal business purposes.
Licenses to Third Party Materials.
In connection with the Platform, Harvest may use, or provide Licensee access to, software, source code or other technology (“In-Licensed Materials”) licensed to Harvest from, and owned by, third parties (“Third Party Licensors”), as identified in this Agreement and the documentation delivered to Licensee. Licensee acknowledges and agrees that in addition to this Agreement, use of In-Licensed Materials shall be subject to, and requires prior acceptance of, all other terms and conditions set forth in a license agreement provided with the In-Licensed Materials. Some third party technology, as may be necessary or appropriate for use with some programs provided by Third Party Licensors, is licensed to Licensee solely for use with the Platform under the terms of the third party license agreement or as Licensee is otherwise notified by Harvest. Licensee agrees that the Third Party Licensors and suppliers are intended third party beneficiaries to this Agreement.
Harvest reserves the right to modify or discontinue the Platform (in whole or in part) at any time, provided that in the event such modification or discontinuance materially reduces the functionality of the Platform used by Licensee in accordance with this Agreement, Licensee may terminate this Agreement upon at least fifteen (15) days’ prior written notice to Harvest, and receive a pro-rata refund of any prepaid Fees.
All Licensee (i) suggestions for correction, change or modification to the Platform, (ii) evaluation data, (iii) evaluations, (iv) benchmark tests, and (v) other feedback, information and reports provided to Harvest hereunder (collectively, “Feedback”), will be the property of Harvest and Licensee shall and hereby does assign any rights in such Feedback to Harvest. Licensee agrees to assist Harvest, at Harvest’s expense, in obtaining intellectual property protection for such Feedback, as Harvest may reasonably request.
Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Licensee shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to all data and other content submitted by Licensee and Users to the Platform (“Licensee Data”). Licensee may export Licensee Data from the Platform through tools provided by Harvest. Licensee hereby grants Harvest a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Licensee Data for the purpose of providing the Platform and services to Licensee.
Except for the limited rights expressly granted hereunder, no other license is granted, no other use is permitted and Harvest (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Platform, all copies, modifications and derivative works thereof, and all Harvest trademarks, names, logos, rights to patent, copyright, trade secret and other proprietary or intellectual property rights.
Licensee agrees that Harvest is free to disclose aggregate measures of Platform usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Platform and services (“General Knowledge”), including that it could have acquired performing the same or similar services for another client. Licensee further agrees that Harvest shall have the right (i) to create anonymized compilations and analyses of Licensee Data that is combined with data from numerous other clients (“Aggregate Data”), and (ii) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”). Harvest shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other clients and prospective clients of the Platform; provided, however, that Harvest shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Client Data.
Except as expressly permitted in this Agreement, Licensee shall not directly or indirectly (i) use any of Harvest’s Confidential Information (defined below) to create any service, software, documentation or data that is similar to any aspect of the Platform, (ii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform, or the underlying ideas, algorithms or trade secrets therein, (iii) encumber, sublicense, transfer, rent, lease, time-share or use the Platform in any service bureau arrangement or otherwise for the benefit of any third party, (iv) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Platform, or (v) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction. Licensee shall be responsible for any acts or omissions of Users in violation of this Agreement.
Term & Termination.
Unless otherwise agreed upon, this Agreement shall continue for twelve months, with automatic renewal unless terminated in accordance with Section 4.2. This agreement pertains to both Harvest Private and Investor Connect.
Licensee may terminate the renewal of this Agreement for convenience upon thirty (30) days prior written notice of the renewal period. This Agreement may be terminated (i) by either party upon thirty (30) days prior written notice in the event of a material breach of a material provision of this Agreement by the other party which is not cured within such period; or (ii) by either party, immediately, if the other shall seek protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable insolvency proceeding, or if any such insolvency proceeding is instituted against the other (and not dismissed within one hundred twenty (120) days).
Effects of Termination.
Upon termination or expiration of this Agreement, all licenses granted hereunder shall terminate and Licensee shall immediately cease use of the Platform, provided that (i) Licensee may export Licensee Data from the Platform in standard formats and (ii) Sections 1, 2.4, 3, 4.3, 7 to 11, and any rights to payment shall survive any expiration or termination of this Agreement. Upon any termination of this Agreement, except due to termination for convenience by Licensee pursuant to Section 4.2, Licensee shall receive a pro-rata refund of any pre-paid Fees.
Provided that Licensee is in compliance with the terms and conditions of this Agreement and has paid the applicable Fees, Harvest shall use commercially reasonable efforts to provide Licensee with technical support and updates for the Platform, in accordance with its standard practices, as amended from time to time (“Support Services”). As part of the Support Services, Licensee shall receive a personalized customer service concierge during normal business hours, with optional extended hours for an additional fee to be specified by Harvest. The Platform is self-hosted and will be available ninety-nine percent (99%) of the time in a given month (“Minimum Service Level”), excluding scheduled maintenance or, downtime resulting from a disaster event outside of Harvest’s control. Harvest will use commercially reasonable efforts to restore service after any downtime and will inform Licensee by email or other prompt means once service is restored. Technical support will be available through the platform help features and on email during weekday office hours from 8:00 a.m. to 8:00 p.m. Eastern time, Monday to Friday, and on email during non-office hours (including, weekends and US holidays). More advanced levels of technical, customer, and admin support are available as part of premium subscription services as laid out in the Harvest Private pricing grid. Harvest, at its sole discretion, may plan scheduled maintenance which will be communicated by email to Licensee at least twenty-four (24) hours in advance with notice of how many hours of downtime are expected.
Fees & Payment Terms.
Licensee shall pay to Harvest all fees, in U.S. dollars, as specified in any Ordering Document (collectively, the “Fees”). Except as specified in an Ordering Document, all amounts are due and payable within thirty (30) days after invoice date. If paying by credit card a 3.5% processing fee will be added to the charge. Unless otherwise agreed upon, Lisensee agrees to the fees for the product as detailed on the respective landing pages of the Products: (www.hvst.com/info/private and www.hvst.com/info/investor-connect).
Licensee is responsible for all reasonable costs and expenses (including without limitation reasonable travel and out-of-pocket expenses) incurred by Harvest in connection with its performance of this Agreement.
All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Licensee agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Harvest’s net income.
Limited Warranty, Disclaimers, Limitation of Liability
Each party represents and warrants that: (i) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder, (ii) this Agreement is legally binding upon it and enforceable in accordance with its terms, and (iii) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
Licensee represents and warrants to Harvest that (i) Licensee owns all rights, title and interest in and to the Licensee Data, or that Licensee has otherwise secured all necessary rights in the Licensee Data as may be necessary to permit any access, use and distribution thereof as contemplated by this Agreement, and (ii) it will comply with all applicable laws and export laws.
Harvest represents and warrants to Licensee that (i) the services hereunder will be provided in a professional and workmanlike manner and (ii) Harvest has secured all necessary rights in the Platform as may be necessary to permit the access and use thereof as contemplated by this Agreement. Any warranty claim under this Section 7.3 must be made in writing within thirty (30) days after performance of the nonconforming service. Harvest’s sole obligation and Licensee’s exclusive remedy in respect thereof is to reperform the nonconforming service.
EXCEPT AS OTHERWISE PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, HARVEST HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, HARVEST, ITS LICENSORS, AND ITS SUPPLIERS WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID BY LICENSEE HEREUNDER, PROVIDED THAT THIRD PARTY LICENSORS SHALL NOT BE LIABLE TO LICENSEE FOR ANY DIRECT DAMAGES WHATSOEVER; (II) ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, DATA OR DATA USE; (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; (IV) FOR LOSS, INACCURACY, OR CORRUPTION OF DATA OR INTERRUPTION OF USE; OR (V) ANY MATTER BEYOND THEIR REASONABLE CONTROL. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Licensee agrees to defend Harvest against any claim by a third party that is related to (i) Harvest’s authorized use of any Licensee Data, (ii) Licensee’s breach of any representation, warranty, covenant or other agreement made herein or (iii) claims excluded under Section 9.3, and to indemnify Harvest for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.
Harvest will defend, indemnify and hold Licensee harmless against any third party claims, liabilities or expenses (including reasonable attorneys’ fees) awarded and arising from any claim by a third party that the Platform (excluding any Licensee Data therein) infringes or misappropriates a valid United States patent, copyright or trade secret right of a third party. If the Platform becomes or, in Harvest’s opinion, is likely to become the subject of an injunction, Harvest may, at its option, (i) procure for Licensee the right to continue using such Platform, (ii) replace or modify such Platform so that it becomes non-infringing without substantially compromising its functionality, or, if (i) and (ii) are not reasonably available to Harvest, then (iii) terminate this Agreement upon written notice to Licensee and refund to Licensee a pro-rata portion of any prepaid Fees. The foregoing states the entire liability of Harvest, and Licensee’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Platform, any part thereof or its use or operation.
Harvest shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Platform not strictly in accordance with this Agreement or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Platform not created by or for Harvest, (iii) any Licensee Data, (iv) any portion of the Platform that implements Licensee’s requirements, (v) Licensee’s continuing allegedly infringing activity after being notified thereof, (vi) Licensee’s continuing use of any version of the Platform after being provided modifications that would have avoided the alleged, or (vii) In-Licensed Materials.
Any claim for indemnification hereunder requires that (i) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (ii) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
Each party agrees that the business, technical and financial information, including without limitation, the Platform and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving party, (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, (iv) is independently developed by the receiving party, or (v) constitutes aggregated, anonymized data and information that cannot be re-identified or de-anonymized.
Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (i) have a need to know for the purposes of this Agreement and (ii) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors.
Return of Confidential Information.
Except as expressly allowed herein, promptly after any termination of this Agreement, the receiving party shall return or destroy all of the other’s tangible Confidential Information.
These restrictions will not prevent either party from complying with any law, regulation, court order or other legal requirement that compels disclosure of any Confidential Information, after giving reasonable prior notice to the disclosing party.
Relationship of Parties.
No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. This Agreement does not limit Harvest from entering into any business relationship with third parties.
Any notice hereunder will be effective upon receipt and shall be given in writing, in English and delivered to the other party at its address given herein or at such other address designated by written notice.
Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder due to any cause beyond such party’s reasonable control.
Licensee hereby consents to inclusion of its name in Harvest client lists, and agrees to serve as a resource for prospective Harvest clients, either orally or by providing a positive reference.
This Agreement and the rights and obligations herein may not be assigned or transferred, in whole or in part, by Licensee without the prior written consent of Harvest. Any assignment in violation of this provision is void and without effect. This Agreement will be binding on the parties' permitted successors and assigns.
This Agreement shall be governed by and construed under the laws of the State of Texas and the United States without regard to conflicts of laws provisions thereof, and without regard to the Uniform Computer Information Transactions Act. The parties agree that exclusive jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in Cook County, New York. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and attorneys’ fees.
Entire Agreement; Severability.
This Agreement and any Ordering Documents constitute the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof and all past dealing or industry custom. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
Modification; Waiver; Remedies.
No change, consent or waiver to this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No waiver by any party of any breach or default of any provision of this Agreement by the other party shall be effective as to any other breach or default. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Sections 3 or 10, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law, and such non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
This Agreement may be executed in one or more counterparts, all of which shall constitute the same instrument.
DMCA Copyright Policy.
We have adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of the Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is listed at the end of this section. If you believe that material or content residing on or accessible through Company's websites or services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, e-mail address;
A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Please contact the Designated Agent to Receive Notification of Claimed Infringement for Company at email@example.com or at:
Harvest Exchange Corp, 1200 Smith Street, Suite 672, Houston, TX 77002 USA
Rules of Conduct.
You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
you know is false, misleading, untruthful or inaccurate;
is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming");
contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
impersonates any person or entity, including any of our employees or representatives;
includes anyone's identification documents or sensitive financial information;
includes any information that in any way violates your employer's policies and compliance procedures;
includes financial information the disclosure of which is a violation of any applicable law or regulation, including, but not limited to, any United States, state, or local laws and regulations regarding insider trading and or the provision of insider information; or
includes anything that violates any agreement to which you may be subject, including but not limited to confidentiality agreements.
You shall not (i) solicit, call out, or directly address any other user of the Services via User Content you upload through the Services, or (ii) use the Services for the purpose of developing a database of investor contact information for any purpose, including, but not limited to, redistribution, resale, or unsolicited emails, (iii) engage in security or market price manipulation, (iv) use the Service to defraud or attempt to defraud any person in connection with an investment.
You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or "spam" on the Services; (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
Third Party Services.
The Services may permit you to link to or share Content with other websites, services or resources on the Internet, including, but not limited to, Facebook, Twitter, and LinkedIn. Other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link or ability to share Content does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
Suspension and Termination.
The Services allow users to flag User Content that you upload as inappropriate Content. Should your Account receive a certain number of flags, we will be automatically notified and may review your Account for compliance with these Terms of Service. We may suspend or terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which, in the case of termination, may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Should you be unable to terminate your Account, due to death or disability, we may, in our sole discretion, allow a member of your immediate family or next of kin, terminate your Account. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
which users gain access to the Services;
what Content you access via the Services; or
how you may interpret or use the Content.
You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
THE SERVICES AND CONTENT ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your User Content, violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
Limitation of Liability.
IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (A) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (B) $100.00.
Governing Law and Jurisdiction.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Illinois, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the Federal courts of the State of Illinois.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
Entire Agreement and Severability.
These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to firstname.lastname@example.org.
Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
You may contact us at the following address: Harvest Exchange Corp, c/o Peter Hans, 1200 Smith Street, Suite 672, Houston, TX 77002 USA.