This agreement “Agreement” by and between HarborCloud, Inc. "HarborCloud" and you, an individual or representative of a corporation or other entity, with the proper authority to engage your organization to this Agreement "You" or “Your", as an authorized user of HarborCloud programs, online services, website, cloud services, consulting services or any other products or services of HarborCloud together the "HarborCloud Services" or the “Services” provided on the “HarborCloud Network”, You agree to be bound by the terms of this Agreement for use of HarborCloud Services. The following Terms and Conditions contained herein supersede any other agreement or negotiation between You and HarborCloud or any HarborCloud Reseller, whether oral, written or otherwise at any time with the sole exception of any agreement physically signed by any authorized Officer at HarborCloud.
PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT CAREFULLY BEFORE ACCESSING HARBORCLOUD SERVICES. BY CHECKING THE "I HAVE READ AND ACCEPT THE TERMS OF SERVICE" CHECKBOX AT SIGNUP, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING ANY OF THE HARBORCLOUD SERVICES, YOU CONFIRM YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THIS AGREEMENT.
FURTHERMORE, YOU MAY NOT ACCESS ANY OF THE HARBORCLOUD SERVICES OR WEBSITE SERVICES IF YOU ARE A DIRECT COMPETITOR OR AN AFFILIATE THEREOF WITHOUT THE PRIOR WRITTEN PERMISSION FROM HARBORCLOUD.
You and HarborCloud are the only parties to this Agreement referred to singularly as a “Party” and collectively as the “Parties”. There is no provision of this Agreement that provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
HarborCloud reserves the right to change the Agreement at any time and notify you by publishing an updated version of the Agreement on our website at HarborCloud.com. This will be the only Agreement version that will be effective or enforceable against HarborCloud. You further agree to review changes to the Agreement as published.
1. SERVICE IMPLEMENTATION
1.1 SERVICES. Subject to the terms and provisions of this Agreement, HarborCloud shall provide the HarborCloud Services to You and such services shall be provided to You as specified in the written pricing quote provided You. In the even a formal written quote was not provided to You, the price billed to You in your first billing cycle for a full month of service.
1.2 BANDWIDTH AND CONNECTIVITY. HarborCloud shall provide all bandwidth, disk storage, sever capacity, and any other software or hardware required to run HarborCloud Services. You shall provide all bandwidth required to connect to HarborCloud and HarborCloud Services.
1.3 OWNERSHIP OF DATA. HarborCloud acknowledges that you own and maintain all rights, title, and interest to all Your data on the HarborCloud Network. You can access and download a copy of your data at your discretion, at any time.
2. CHARGES, FEES, AND PAYMENTS
2.1 CHARGES. HarborCloud charges or may charge one or more fees: Account Set-Up Fees, Monthly Subscription Fees, Annual Subscription Fees, Software Fees, and Consulting Fees where applicable. All such fees are subject to change upon 30 days notice.
2.2 SET-UP FEES. Set-up Fees apply to the build out of user profiles and/or private servers and are charged with the placement of an order with HarborCloud. Setup Fees are non-refundable.
2.3 MONTHLY SUBSCRIPTION FEES. Monthly Subscription Fees apply from the moment the set-up work is completed and Your service is deployed. Monthly Subscription Fees are paid in advance and are pro-rated for the balance of the remaining days in the month once initial service is deployed and will be multiplied by the number of days remaining in the month. The pro-rated fee will be calculated by multiplying the remaining days of the month by 1/30 the monthly subscription fee. Beginning the 1st of the following month, you will be billed for that month for Monthly Subscription Fees via Your credit or debit card (Visa, MasterCard, Discover, American Express) on file with HarborCloud. All payments shall be made in US Dollars.
2.4 ANNUAL SUBSCRIPTION FEES. Annual Subscription Fees apply from the moment the set-up work is completed and Your service is deployed. Annual Subscription Fees are paid in a year advance and are set to renew one-year from delivery of service unless written cancellation is submitted.
2.5 SOFTWARE FEES. Software Fees include any software You may request to purchase through HarborCloud and will be billed to Your credit or debit card on file with HarborCloud at time of Your order. HarborCloud does not charge for software licensing You may already own, that You have provided to HarborCloud to have hosted.
2.6 CONSULTING FEES. Consulting Fees shall be payable according to the scope of the Consulting agreement and established at that time.
2.7 FEE CHANGES. HarborCloud specifically reserves the right to change its pricing and charge additional charges upon notice to you. HarborCloud reserves the right to alter, change, amend or delete charges at its sole discretion.
2.8 CHARGE AUTHORIZATION. Upon the submission of an online order form or a verbal authorization, You authorize HarborCloud to charge the Credit or Debit Card You provided for the amount of the fees due for the agreed upon services including any Set-Up Fee, Pro-Rated Fees, or any other charges outlined herein that may be applicable. You further authorize HarborCloud to charge Your credit or debit Card for all subsequent recurring monthly fees.
2.9 NON-PAYMENT. Should You fail to provide Credit Card authorization to pay any such fees, HarborCloud, at its sole discretion will have the right to suspend Your account and/or terminate it. Should Your Credit or Debit Card be declined, You shall have 5 business days to provide HarborCloud with payment of Fees due. HarborCloud reserves the right to suspend or terminate Your account for a decline of Your Credit or Debit Card, or refusal to pay any charge or any portion thereof. HarborCloud will not be liable in the event Your account is suspended or terminated and any data, productivity, or any loss of revenue incurred by such a suspension or termination
2.10 TAXES. HarborCloud shall not be liable for any taxes, governmental fees, and/or any other fees to be paid in relation to the Services provided herein. You agree that You shall be responsible for all taxes and fees of any nature associated with products and services provided to You by HarborCloud.
2.11 REFUND. If our service does not exceed your expectations, please submit written cancellation notice within the first 30 days. We will refund (minus a $25 setup fee if cancelled) in the first month for standard hosted QuickBooks. For monthly accounts, we require 30 days notice prior to cancelling.
For Annual Subscriptions, you may cancel within the first 30 days and request a refund subject to a $50 hold back.
For any specialised application we install other then QuickBooks, you may cancel minus any setup fee's charged for any server setup or application testing. We also require 30 days notice in order to cancel..With the exception of your initial trial period or as otherwise provided in this Agreement, all fees and charges are non-refundable.
Refunds take 2-4 weeks to process.
3. CUSTOMER PREMISE EQUIPMENT REQUIREMENTS
3.1 CUSTOMER RESPONSIBILITY. You are responsible for the acquisition and maintenance of Your on-premise equipment, workstations, connectivity, and bandwidth to access and use HarborCloud services. This includes, but is not limited to computer hardware, software, network equipment, network maintenance, broadband Internet access, and other equipment and/or services.
4. ACCEPTABLE USE
4.1 ENFORCEMENT. HarborCloud strictly enforces compliance within its acceptable use terms as defined under the Acceptable Use terms set forth below. You agree, at any and all times to use HarborCloud Services in full compliance with the Acceptable Use terms set forth below. Your failure to adhere to the Acceptable Use terms, shall give HarborCloud, under its sole discretion, cause for immediate suspension and possible termination of Your account. You further agree to take sole responsibility of the actions or causes of ANY of your users, authorized or not.
4.2 UNACCEPTABLE ACTS. You agree not to:
4.2.1 violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government;
4.2.2 make any attempt to gain any unauthorized access to any customers, data, or software that may reside on HarborCloud’s Network;
4.2.3 any attempt, known or unknown, to download and/or install any executable software on HarborCloud’s Network. Such requests can only be processed by HarborCloud personnel;
4.2.4 transmit any email or bulk email that may constitute spamming or use the HarborCloud Network to stage any unacceptable attack on any other website, Internet service, or competitor;
4.2.5 engage in any activity or action that may cause harm or potential harm to the HarborCloud Network;
4.2.6 allow multiple users to access or share a single user account or set of login credentials;
5. NETWORK AND DATA SECURITY
5.1 NETWORK UP-TIME. Subject to HarborCloud’s rights herein to limit or deny, at HarborCloud’s discretion, access to its network, servers and/or the software hosted on said servers, the HarborCloud Service will be available to the Internet ninety-nine percent (99.9%) during HarborCloud business hours of 7:00am to 6:00pm Pacific time.
5.2 DATA SECURITY. HarborCloud takes significant measures to ensure the security of information and data submitted by You and/or Your users, HarborCloud cannot guarantee the security of information collected and/or transmitted during Your use of the Service and shall not be liable in any way for any unauthorized access of Your data.
5.3 USER ACCESS. You agree to not allow other individuals to have access to or use Your Account, with the exception of permissible employees, professionals, consultants or agents who have been informed of the parameters set forth in this Agreement.
5.4 CONFIDENTIALITY. You agree to at all times, maintain the confidentiality of Your Account credentials and/or Account information and agree to be solely responsible for any and all activity in relation to Your Account.
6. SOFTWARE LICENSE AGREEMENTS
6.1 COMPLIANCE. You represent and warrant that You own valid licensing for Software that you provide HarborCloud in which to deploy your Services. You agree that you will comply with all software license agreements for any software that you may rent through HarborCloud, as such licenses may be revised by HarborCloud and/or its licensors from time to time, including, without limitation, Microsoft Office and the Windows Desktop. You warrant that You will not violate any 3rd party software license agreement.
6.2 LICENSE REPORTING. In some cases, HarborCloud reports software licensing to the software developer or manufacturer. You hereby grant HarborCloud permission to share with the software developer or manufacturer of the 3rd party licensed software of your prospective license information including all licensing keys and numbers provided by You.
6.3 SOFTWARE HOSTING. You agree that any hosting of any 3rd party software You provide HarborCloud and request HarborCloud to host for You, will be deemed to be part of the HarborCloud Services and subject to the terms of this Agreement, including, without limitation, its indemnity and limitation of liability provisions. In the event that a breach of the terms of the licensed software occurs due to any oversight or unknown mistake, omission or any reason beyond HarborCloud’s control, You agree that the terms of this Agreement provide the entire and only remedy available to you.
7.1 CONTRACT TERM. Unless otherwise in writing, the term of this Agreement shall be monthly or a prorated partial month with automatic renewal for subsequent additional months after the expiration of the initial term (each such month a "Contract Term"). HarborCloud reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. Under certain circumstances and configurations, longer Contract Terms may be required. Such events will be in writing and deemed an Attachment to, and be governed by, this Agreement.
8.1 CANCELLATION. Unless under agreement for a Term other than monthly, such as an annual contract, You may terminate your account without penalty upon the written delivery of acceptable notification, as defined under the Notification section of this Agreement, and given with 30 days notice of your intent to cancel your account.
8.2 REMOVAL OF DATA. It shall be Your responsibility to remove any and all data from Your account that HarborCloud may host for You as part of HarborCloud Services. HarborCloud shall assume all data has been removed and/or copied from Your account prior to the date You provided with Your written intent to cancel your account. You further agree to hold HarborCloud harmless and indemnify HarborCloud for any failure of Yours to comply with this provision.
9.1 BREACH. For any reason as set forth in this agreement or in the event that You are at anytime in breach of this Agreement, HarborCloud, at it’s sole discretion, may suspend or terminate Your account by suspending Your access to Your account. In the event of a suspension, service charges shall continue to accrue and You will continue to be responsible for such charges. HarborCloud reserves the right to charge a re-activation fee of $25 per user, account, or single set of user credentials to reactivate a suspended account. HarborCloud also reserves the right to fully terminate Your account, which may include deleting any data related to Your account, without notice for any breach of this Agreement.
9.2 AGREEMENT. This Agreement and all of its Terms set forth herein, shall remain in full force and effect until terminated. This agreement may be terminated at any time by either party.
9.3 CAUSE. HarborCloud shall have cause for immediate termination if any of the following applies;
9.3.1 if any payment for HarborCloud Services is more than 5 business days overdue;
9.3.2 any material breach of any of the Terms and/or Provisions of this Agreement that is not cured within 10 business days;
9.3.3 immediately upon any breach of the terms and/or provisions of the ACCEPTABLE USE section of this Agreement;
9.4 THIRD PARTIES. If You subscribe to HarborCloud Services through a 3rd party such as an Accountant or Reseller, You understand and agree that the 3rd party has the right to request HarborCloud to suspend or terminate Your account at any time, for any reason. Furthermore, their failure to pay for services they are reselling You could result in termination or suspension of Your access to HarborCloud Services and/or Your data.
9.5 DATA RETRIEVAL. In the event of termination, You take full responsibility to remove Your data and HarborCloud is not responsible for your responsibility to remove your data in the time allowed for You to remove your data.
9.6 SERVICE DISCONTINUATION. HarborCloud reserves the right to terminate with notice, any service it deems to cease providing or doing business entirely for reasons beyond HarborCloud’s control or for any other reason whatsoever.
10.1 CONFIDENTIAL INFORMATION. You agree that any and all information and documents disclosed or produced by either party over the course of this Agreement, whether in written or verbal form shall be deemed CONFIDENTIAL INFORMATION of the disclosing party. HarborCloud, Inc will not disclose, sell, or market any of your information, contact information, or otherwise.
10.2 TREATMENT OF CONFIDENTIAL INFORMATION. Both parties acknowledge the possibility of the existence of CONFIDENTIAL INFORMATION related to each parties business, and both parties shall hold such CONFIDENTIAL INFORMATION in a matter similar to how they treat their own CONFIDENTIAL INFORMATION, but in no case less than reasonable care.
10.3 ACESSABILITY. You are solely responsible for ensuring that your login information is kept private and only used by You, with the exception of your employees, agents, professionals and outside contractors. Your responsibility includes keeping the secrecy of your account Credentials (username and password). You are also responsible for changing Your password on a regular basis to further ensure Your security. You also understand HarborCloud does not recommend using easy passwords that may be weak and not deemed secure. If your login credentials have been lost or stolen or if You believe there has been unauthorized access to Your Account, it is Your responsibility to notify HarborCloud immediately so Your login credentials can be changed or reset.
11.1 NOTICES. Any notice under this Agreement provided by You to HarborCloud shall be via email at [email protected] or via US Mail at HarborCloud, Inc PO Box 40597, Bellevue, WA 98015-4597. You agree to notify HarborCloud of any change of Your contact information within 10 business days. Notice to You at this address is deemed sufficient regardless of Your receipt of such email. You warrant that the contact information on file with HarborCloud is current and accurate as described in the ACCEPTABLE USE section. Any notice under this Agreement given by You to HarborCloud for the purpose of cancelation shall be acceptable via email, however email Notice to HarborCloud by email shall be deemed sufficient only upon confirmation from HarborCloud.
12. WARRANTEES, LIMITATIONS OF LIABILITY
HarborCloud makes every reasonable effort to maintain operation of the HarborCloud Services. However, because many events and circumstances are generally beyond the control of HarborCloud. Additionally, HarborCloud does not warrant or guarantee the HarborCloud system and/or servers will meet all of your needs and requirements or that our Service will be error free or run uninterrupted. HarborCloud will not be held responsible in any way or form, for any system delay, loss of data, slow connection, lack of connection, or any other such issues regardless of any active or passive negligence of HarborCloud. All HarborCloud Services are provided to You on an “as is” basis, and without any warranty of any kind, whether expressed or implied.
Neither Party shall be liable to the other for any lost profits or revenues, or cost of procurement of substitute services as a result of any indirect, special, incidental, or consequential damages including damages for lost data, regardless of cause. In no event, shall HarborCloud’s liability arising out of this Agreement exceed the net amount HarborCloud has actually received from you under this agreement. The parties agree that this section represents a reasonable and acceptable risk.
13.1 INDEMNIFY. You hereby agree to indemnify, defend, and hold harmless HarborCloud, its officers, directors, agents, resellers, and employees from and against any and all third party claims or causes of action including any and all perspective damages, attorneys fees and costs, expert fees and costs, mediation and/or arbitration fees and costs incurred as the result of any breach or claim of breach of this Agreement or Your negligence whether active or passive or any negligence of HarborCloud in any way related to Your use of the HarborCloud Services or any portion thereof. HarborCloud shall have exclusive rights with HarborCloud’s selection of legal representation.
13.2 ASSIGNMENT. You agree that upon the assignment of Your account and subsequently Your login information such as a username and password, You will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to Your account via the use of Your login information. You further agree to indemnify, defend and hold harmless HarborCloud, its officers, directors, agents, resellers, and employees from and against any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred as the result of any claim for damages in any way related to the disclosure of Your confidential login information. HarborCloud shall have exclusive rights with HarborCloud’s selection of legal representation.
14. FORCE MAJEURE
Both parties to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to: acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of either party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. HarborCloud also reserves the right to terminate this Agreement in the unlikely event that HarborCloud elects at its discretion, to cease doing business for economic reasons or for any reason whatsoever.
HarborCloud at any time and from time to time may assign its rights and delegate its duties under this Agreement without Your prior consent. You may not assign this Agreement to any other person under any circumstances without written permission of HarborCloud.
16.1 AGREEMENT TO ARBITRATE. Any and all disputes which arise under this Agreement or in connection with the HarborCloud Services to be delivered hereunder and which are not resolved within thirty (30) days following the delivery by one party to the other of a written notice describing the dispute shall be resolved by binding arbitration under the rules of the American Arbitration Association before by a panel of three arbitrators in Seattle, Washington. Any party may initiate arbitration proceedings under the terms of this Agreement, by providing the proper written notice Demand for Arbitration to the other party evidencing such a claim, dispute or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations. Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written decision of the arbitrators shall be final and binding on the parties, and judgment thereon shall be entered in a court of competent jurisdiction. You agree that by accepting this Agreement, You are consenting to binding arbitration as Your sole and exclusive remedy for any disputes, controversy, or claim of damages as a result of any of the terms and conditions set forth in this Agreement or services provided to You by HarborCloud, Inc. You understand that in arbitration, You shall have no right to a jury trial, You will have limited discovery rights, and forgo any right of appeal of any decision set forth by the Arbitrator.
17. GOVERNING LAW
17.1 GOVERNING LAW. The Agreement shall be governed by the laws of the state of Washington, county of King.
18. FULL AGREEMENT
18.1. FULL AGREEMENT. This Agreement and any applicable exhibits, constitute the full agreement and supersedes any and all prior agreements between the Parties. This Agreement may be modified only in the matter set forth herein.
19.1 AMENDMENTS. HarborCloud may at its discretion and without advanced notice amend this Agreement from time to time. In the event any amendments have been made, HarborCloud will make the Amended Agreement available on the HarborCloud website at www.harborcloud.com. Such an Amended Agreement will become effective immediately for any and all existing and future accounts, customers, users, or subscribers. It is Your responsibility to, from time to time, check the HarborCloud website for any published Amendments to this Agreement.
20.1 TRADEMARKS. HarborCloud’s trademarks, corporate names, trade names, websites, domain names, logos, and service marks are the sole property of HarborCloud, Inc. You agree not to use or display, in any format, any of the trademarks, corporate names, trade names, websites, domain names, logos, and service marks without the prior written permission of HarborCloud. Third party trademarks are the property of their respective owners.
20.2 SEVERABILITY. In the event any provision of the Agreement is determined by an arbitrator or court of competent jurisdiction to be contrary to applicable law, then such provision shall be construed as nearly as possible to conform to applicable law and the other provisions of this Agreement shall remain in full force and effect.
20.3 ENFORCEMENT. HarborCloud's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision in any way unless acknowledged and agreed to by HarborCloud in writing.
20.4 ATTORNEYS FEES. If either party initiates litigation to enforce any terms or provisions of this Agreement, the prevailing party shall be entitled to costs and reasonable legal fees.
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