Terms of Service
Effective as of July 23, 2018
This Harbor Online Customer Agreement (“Agreement“) is entered into by and between Harbor Inc. (“Harbor“) and the entity or person placing an order for or accessing the Service (“Customer“ or “you“). This Agreement consists of the terms and conditions set forth below and any Harbor ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms“). If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
The “Effective Date“ of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
You acknowledge and agree that Harbor may modify the terms and conditions of this Agreement at any time in accordance with Section 12 (Modifications to Agreement).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. Harbor Service
- Harbor provides hosted service solutions designed to engage Customer’s existing and prospective clients. These solutions include, but are not limited to:
- Financial Health Discovery Tool, with dynamic questionnaire
- Interactive Action Plan Preview, adjusted based on client response and Customer preferences
- Action Item Education Modules, as detailed in Exhibit B hereto (“Planning Preview Available Modules”)
- Data review tool summarizing the information input by clients and prospective clients who have used the tool
- Communication system to automate on-going communication with prospective clients via integration with Client’s existing E-mail, Social Media tools
- Plug-ins to embed links to the tool on Customer's website(s)
(collectively, “the Service(s)”)
2. Service Plans
- Harbor makes available the Service through paid plans (“Paid Plans”) and trial plans ("Trial Plans"). Current plans are described at https://www.harborplan.com/pricing and Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Service. Customer’s permitted scope of use – such as features available, permitted number of financial advisors or financial planners and other usage limits – depends on the plan that Customer selects and will be specified on the applicable Order Form. Services may not be used by Customer to produce the outputs of the Services en masse for more than the number of advisors specified in the Order Form. Any increase in the number of advisors who benefit from the Services beyond this limit will require an additional use fee or an upgrade to another plan.
- Paid Plans are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term“). Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).
For Trial Plans, Customer may use the Service in accordance with this Agreement for the limited trial period designated on the Order Form or such other period as may be specified by Harbor (the “Trial Period“). Trial Plans are permitted solely for Customer’s use to determine whether to purchase a Paid Plan. If Customer does not upgrade from a Trial Plan to a Paid Plan at the end of the Trial Period, then Customer’s access to the Service may be limited or suspended (to be determined at Harbor's sole discretion) until such time as Customer terminates this Agreement or converts to a Paid Plan.
Trial Plans may not include all features or functionality offered as part of Paid Plans, and Harbor reserves the right to add or subtract any features or functionality at any time for such plans. Harbor has the right to suspend or terminate a Trial Plan at any time for any reason.
3. Fees and Payment
- Customer will pay Company the then applicable fees described in the Order Form in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
- If no payment terms are specified in the Order Form, then the following default terms apply: Payment is due on the Effective Date, or in the event there is a Trial Period, on the first day following the end of the Pilot Period, as measured in calendar days from the Effective Date of this agreement. Except as expressly set forth in Section 10 (Modifications), all fees are non-refundable. Segment reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term.
- Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Segment. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the aximum amount allowed by law, whichever is less.
- Company reserves the right, under certain circumstances, to require annual billing or ACH payment when circumstances warrant.
4. Term and Termination
- Subject to earlier termination as provided below, this Agreement is effective as of the Effective Date, for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service (including any and all related Harbor technology), cease distributing any Harbor Code installed on Customer Properties, and delete (or, at Harbor's request, return) any and all copies of the Documentation, any Harbor passwords or access codes and any other Harbor Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Service, and that Harbor may delete any such data as may have been stored by Harbor at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
- Harbor shall have the right, without any obligation to assign any reason, at Harbor's sole option, to terminate this Agreement for convenience by giving thirty (30) days prior written notice to Customer. In the event that Harbor chooses the exercise this option, the Customer shall receive a refund for any Fees that have already been paid for the remainder of the Term after the effective date of termination.
- In addition to Harbor’s termination and other rights under this Agreement, Harbor reserves the right to suspend Customer’s access to the Service (and any related services), in whole or in part, without liability to Customer and with immediate effect: (i) if Customer’s account is thirty (30) days or more overdue; (ii) if Customer exceeds any scope of use restrictions set forth in the applicable Order Form; (iii) if Customer has breached its express obligations under Sections 1.5 (Use Restrictions) or 4 (Customer Obligations); or (iv) to prevent harm to the Service or other Harbor customers.
- The following Sections shall survive any expiration or termination of this Agreement: 3 (Fees and Payment), 4.2 (Term and Termination: Suspension), 5 (Not Investment Advice), 7 (Restrictions and Responsibilities), 8 (Confidentiality; Property Rights), 9 (Warranty and Disclaimer), 11 (Limitation of Liability), 12 (Modifications) and 13 (Miscellaneous).
5. Not Investment Advice
- The Services are for informational purposes only and do not constitute investment advice or an investment recommendation offered by Company. Company is not registered with the Securities and Exchange Commission as an investment advisor or a broker-dealer. You agree and acknowledge that Company, its employees and its agents, are not financial advisors, financial planners or broker-dealers, and each cannot advise you or your clients through the Services or otherwise.
- You agree and acknowledge that Company makes no representation as to the suitability of the Services for any purpose, and Company will not be held liable in any way for any consequences or damages that may arise through your use of the Services. You agree and acknowledge that Company may modify the Services from time to time.
- You certify that you are a certified financial planner, a licensed investment advisor, a licensed insurance agent or a qualified administrator employed by a licensed entity or individual licensed to sell or offer securities or insurance products under applicable law. You agree and acknowledge that if you choose to make any investment decisions for your clients in reliance on information you receive from the Services, you do so at your own risk and based on your own independent judgment. You acknowledge and agree that Company is not representing itself as a broker-dealer or financial or investment advisor, and that Company does not independently evaluate the suitability of or recommend any investments for you or your clients. You agree and acknowledge that the information provided in the Services will not be construed as an offer to sell, an offer to buy, or a recommendation for or against any security by Company or any third party. Company will not be responsible for any trading decisions, damages or other losses resulting from your use of the Services. You agree that you will be responsible for effecting underlying investment transactions for all accounts under your management and supervision.
- You acknowledge that you are the fiduciary advisor and maintain responsibility for your client accounts, and as a technology service provider, Company cannot be a fiduciary or be responsible for ensuring trade execution is effective.
- You agree that Company is not responsible for collecting or reviewing any information about your clients, or determining whether any investment strategy or security is or continues to be appropriate for the client’s objectives or restrictions. Neither Harbor Inc. nor the aforementioned third parties are responsible for verifying client identities or compliance with anti-money laundering rules and regulations administered by the US Treasury Department’s Office of Foreign Assets Control. You agree that you, as the sole licensed investment adviser and/or fiduciary to the investor, are solely responsible for performing the foregoing duties.
- You acknowledge that the Company offers neither legal or tax advice and that any content furnished by the product is solely for educational purposes. You agree and acknowledge that if you choose to make any tax or legal decisions for your clients in reliance on information you receive from the Services, you do so at your own risk and based on your own independent judgment.
6. Data Security
- Company agrees to take appropriate security measures to protect against unauthorized access to or unauthorized alteration, disclosure or destruction of data. These include internal reviews of our data collection, storage and processing practices and security measures, including appropriate encryption and physical security measures. Regardless of the precautions taken by us we cannot ensure or warrant the security of any information you transmit to us, and you transmit such information at your own risk.
- We restrict access to personal information to only the Company employees, contractors and agents who need to know that information in order to process it on our behalf. These individuals are bound by confidentiality obligations and may be subject to discipline, including termination and criminal prosecution, if they fail to meet these obligations.
7. Restrictions and Responsibilities
- Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
- Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
8. Confidentiality; Property Rights
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes a) non-public data provided by Customer to Company to enable the provision of the Services; and b) financial data input by Customer’s clients or prospective clients in the course of using Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
- Customer shall own all right, title and interest in and to the Customer Data. Customer is not transferring the ownership of data about Customer or Customer’s clients by storing it in Company’s servers.
- Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
- Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use Customer Data in order to assist with support requests, troubleshoot problems; (ii) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (iii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
9. Warranty and Disclaimer
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. Indemnity Against Intellectual Property Infringement
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
11. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Harbor may modify the terms and conditions of this Agreement (including Service pricing and plans) from time to time, with notice given to Customer by email or through the Service. If Customer has a Trial Plan, then any modifications will become effective immediately, and if Customer disagrees with the modifications, Customer’s exclusive remedy is to terminate this Agreement and cease using the Service. If Customer has a Paid Plan, Customer must notify Harborwithin thirty (30) days of notice of the modifications that Customer does not agree to such changes, and Harbor(at its option and as Customer’s exclusive remedy) may either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. Upon any changes to this Agreement, Customer may be required to click to agree to the modified Agreement in order to continue using the Service, and in any event continued use of the Service after the modifications take effect constitutes Customer’s acceptance of the modifications.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.