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1. DEFINITIONS. Under this Agreement, the following terms mean:
1.1 “Commercial Customer” means those Customers using the Software and Services described herein and in an applicable Order, subject to the payment of Fees therefor.
1.2 “Customer” or “you” means the legal entity or person identified on the Order.
1.3 “Customer Data” means all electronic data or information submitted by Customer to the Service.
1.4 “Documentation” means specifications, user documentation, and technical manuals and guides provided by HARMAN with HARMAN Software or Services.
1.5 “Evaluation Customer”: means those Customers using the Software and Services described herein at no cost for evaluation purposes.
1.6 “Order” or “Order Form" means HARMAN’s standard order form for Services and/or installation or training services: (i) that has been executed by HARMAN and Customer; or (ii) has otherwise been agreed to by the parties via an online ordering process. Any preprinted terms on any transactional or other documents issued in connection herewith (including, without limitation, purchase orders, RFPs, bills of lading, etc.) are of no force and effect.
1.7 “Services” means the online, Web-based services more fully set out in the Order provided by HARMAN via a designated website, which Customer will subscribe to in accordance with the terms of this Agreement and the Order.
1.8 “Software” means the proprietary software product (in object code format only) identified on the applicable Order, which is made available to you by HARMAN during the availing of the Services by you.
1.9 “Third Party Software” means the software of certain third parties which may be included with the Software and/or Services, Third Party Software is subject to separate terms and conditions indicated in the Documentation.
1.10 “User(s)” means individuals authorized by you to use the Services for whom subscriptions to the Services have been obtained, solely in connection with your own internal business purposes and solely in a manner permitted under this Agreement, and who have been supplied user identifications and passwords by Customer (or by HARMAN at Customer's request). Users may include but are not limited to employees, consultants, contractors and agents of Customer or its Affiliates.
2. PROVISION OF SERVICE
2.1 HARMAN shall make the Services available to the Customer and its Users for the duration of the Term of the Services pursuant to this Agreement and all Order Forms during a subscription term. Customer agrees that its acquisition of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by HARMAN with respect to future functionality or features.
2.2 Commercial Customers may order additional Services by (i) completing and signing a follow-on Order Form; or (ii) by issuing a purchase order that references the original Order Form, HARMAN’s published pricing for Services or HARMAN’s customized quote for such Services. All such follow-on Order Form or purchase orders shall be subject to the provisions of this Agreement
2.3 Evaluation Customers may enter into a paid Subscription Services Agreement by (i) completing and signing a follow-on Order Form; or (ii) by issuing a purchase order that references the original Order Form,
3. GUIDELINES; CUSTOMER RESPONSIBILITIES.
3.1 Use Guidelines.The license(s), permissions and provision of Services granted under this Agreement are expressly conditioned on the Customer’s compliance with each of the following conditions:
a. Only a User who has been provided with a user ID and password is authorized to avail of the Services as stated in this Agreement.
b. The Customer may not copy any portion of the Software while availing the Services, or allow any Users to copy any portion of the Software content while availing the Services, unless expressly permitted in writing by HARMAN.
c. Only Customer and Customer’s Users are permitted to access and avail of the Services. Customer shall assure that all use by Users of the Services shall be pursuant to the terms and conditions of this Agreement.
d. Customer have the right to install the software or use the primary function of the software (the features listed in this agreement) on the number devices that was mentioned in the order submission.
e. Customer shall not install the software or use the primary function of the software (the features listed in this agreement) on more than one unit if there is no mention of endpoints in the order form.
f. Customer may not sell, resell, transfer, assign, license, sublicense, pledge, lease, rent, distribute, timeshare, or share or otherwise commercially exploit or make the Services available to any third party, unless expressly permitted under this Agreement or with prior written permission from HARMAN.
g. Customer shall comply to the terms as they appear in this Agreement and not change, modify, disassemble, decompile, “unlock,” reverse engineer or in any manner decode the system.
h. Customer shall not send spam or otherwise duplicative or unsolicited messages in violation of applicable laws.>
i. Customer shall not send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights.
j. Customer shall not send or store malicious code.
k. Customer shall not interfere with or disrupt the integrity or performance of the Services or the data contained therein.
l. Customer shall not attempt to gain unauthorized access to the Services or its related systems or networks
3.2 Customer Responsibilities
i. Connectivity. Customer understands and agrees that high-speed internet and telecommunications connections and supporting equipment shall be required to access the Services and Customer agrees that it is its sole responsibility to bear the costs and maintain such connectivity to the internet and supporting equipment.
ii. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
iii. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify HARMAN promptly of any such unauthorized access or use.
iv. Customer shall comply with all applicable local, state, federal and foreign laws in using the Services.
v. Customer is responsible for all activities that occur in User accounts and for Users' compliance with this Agreement.
4. FEES.4.1 Applicable Services fees are set forth in the Order (“Fees”). Commercial Customers agree to pay such Fees in accordance with the terms and conditions of this Agreement and the Order. Fees will be invoiced by HARMAN upon execution of the Order. All fees payable are due net thirty (30) days of the date of invoice from HARMAN. 4.2 If any invoice is not paid on the due date for payment, interest shall accrue and be payable on the amount of such invoice from the original due date to the date paid. If Customer's account is 7 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, HARMAN reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
5. TAXES.Customer will be responsible for and pay all sales, use and excise taxes, and like charges imposed by any federal, state, or local governmental entity for products or services provided under this Agreement. If applicable, when HARMAN has the legal obligation to collect such taxes, the appropriate amount shall be due upon invoice to Customer unless Customer provides HARMAN with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall hold HARMAN harmless from all claims and liability arising from Customer’s failure to pay any such taxes, duties, or charges.
6. PROPRIETARY RIGHTS.
6.1 Software Proprietary Rights. Customer acknowledges and agrees that the Software, including without limitation its sequence, structure, organization, source code and documentation contains valuable trade secrets and other intellectual property of HARMAN and its suppliers and no title or ownership to such Software or the intellectual property rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Software and all intellectual property rights therein are the exclusive property of HARMAN and its suppliers, and all rights in and to the Software not expressly granted to Customer in this Agreement are reserved. HARMAN owns all copies of the Software, however made. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of HARMAN, except to the extent necessary for Customer to use the Software as expressly permitted under this Agreement.
6.2 Reservation of Rights. Subject to the limited rights expressly granted hereunder, HARMAN reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.3 Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Services; (ii) frame or mirror any content forming part of the Services, other than on Customer's own intranets or otherwise for its own internal business purposes; (iii) reverse engineer the Services; or (iv) access the Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Services.
6.4 Customer Data. As between HARMAN and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. HARMAN may access Customer's User accounts, including Customer Data, (i) to respond to service or technical problems; or (ii) at Customer's request. Further you agree that HARMAN may collect and use Customer Data, technical data and related information, including but not limited to technical information about you, that is gathered periodically to facilitate the provision of Services, support and other services to you (if any) related to the Services. Supplier may use this information, as long as it is in a form that does not personally identify you, to, improve its products or to provide services or technologies to you.
6.5 Suggestions. HARMAN shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service.
7. USE OF LOGO.Customer consents to HARMAN’s use of its name and logo for the purposes of press releases and HARMAN’s client list which may be published on its website, and in hard copy materials.
8. TERM AND TERMINATION.
8.1 The term of this Agreement will begin on the Effective Date of the Order and continue in force until all User subscriptions granted in accordance with this Agreement and the Order have expired as specified in the Order; or until this Agreement is terminated, whichever occurs earlier. The term for Evaluation Customers is thirty (30) days, unless otherwise agreed to in an Order.
8.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order and continue for the subscription term specified therein. Paid User subscriptions shall automatically renew for additional periods of twelve (12) months at the list price in effect at the time of renewal unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant subscription term.
8.3 Termination for Cause. This Agreement will immediately terminate upon your breach of this Agreement, unless such breach is curable and is actually and immediately cured by you after HARMAN provides notice of breach to you, whereupon you will discontinue all use of the Services, promptly destroy or have destroyed any HARMAN data acquired in the course of the Services and any copies thereof, and certify in writing to HARMAN that such destruction has taken place. If applicable, all fees incurred up to the date of termination are payable to HARMAN. Fees previously paid by Customer are non-refundable.
8.4 HARMAN may deliver to the Customer written notice of its decision to terminate the free subscription to the Services with or without cause upon thirty (30) days prior written notice to the Customer.
8.5 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to HARMAN prior to the effective date of termination.
8.6 Upon completion of any term or upon termination for any reason, HARMAN will not guarantee persistence of any Customer Data in HARMAN’s systems beyond thirty (30) days.
8.7 Surviving Provisions. Sections 1, 4, 5, 6, 8, 9, 10, 11, 12, 13, 15, 16, and 17 shall survive such termination.
9. PROPRIETARY RIGHTS INDEMNITY
9.1 Indemnification by HARMAN. With respect to Commercial Customers and subject to this Agreement, HARMAN shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (a) promptly gives written notice of the Claim to HARMAN; (b) gives HARMAN sole control of the defense and settlement of the Claim (provided that HARMAN may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to HARMAN, at HARMAN's cost, all reasonable assistance.
9.2 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold HARMAN harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against HARMAN by a third party alleging that the Customer Data, or Customer's use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that HARMAN (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases HARMAN of all liability); and (c) provides to Customer, at Customer's cost, all reasonable assistance.
10. WARRANTY AND DISCLAIMERS.10.1 Evaluation Customers: With respect to Evaluation Customers, the Software and Services are provided “AS IS,” and all warranties and conditions, express, implied, and statutory, including without limitation the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose or use, accuracy or completeness, satisfactory quality, and quiet enjoyment, or other warranties or conditions arising by statute, operation or law, course of dealing, usage of trade or otherwise are hereby disclaimed. Some jurisdictions do not allow the limitation or exclusion of implied warranties, so the above limitations may not apply to you. HARMAN DOES NOT WARRANT THAT THE USE OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SOFTWARE AND SERVICES DO NOT CONTAIN ANY VIRUSES.
10.2 Commercial Customers: With respect to Commercial Customers, HARMAN represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall perform materially in accordance with the Documentation; (iii) the functionality of the Service will not be materially decreased during a subscription term; (iv) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights to use the Service granted herein; and (vi) the Service does not infringe any intellectual property rights of any third party.
10.3 Data Protection.
(a) Customer warrants that it shall comply with all applicable data protection and privacy laws and regulations, including Directive 95/46/EC as amended and all applicable national implementing legislation and guidelines applicable to the Customer or any applicable analogous legislation in the Customer’s jurisdiction from time to time. Customer accepts that data collected through the graphical user interface ("GUI") may be exported outside of the country of origin to countries that may not provide an equivalent level of data protection law. Customer further represents and warrants that where required by applicable law it shall notify Customer’s Users about the information collected and transferred through the GUI and obtain all required consents from the Users to so export such collected data.
(b) To the extent Customer processes User's personal data, it shall only process that data as necessary to provide the Services except where required by applicable law, and it shall apply appropriate technical and organisational measures to protect User personal data against unauthorised, unlawful or accidental access, loss, disclosure, destruction or damage.
10.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, HARMAN MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FOR PURPOSES OF CLARIFICATION, SERVICES PROVIDED FOR EVALUATION CUSTOMERS ARE DELIVERED “AS IS”
11. LIMITATION OF LIABILITY.IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS, LOST DATA, LOST PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID TO HARMAN IN RESPECT OF THE SERVICES GIVING RISE TO THE CLAIM IN THE IMMEDIATELY PRECEDING 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. IN NO EVENT WILL ANY SUPPLIER TO HARMAN HAVE ANY LIABILITY TO YOU UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND HARMAN. HARMAN WOULD NOT PROVIDE THE SOFTWARE OR SERVICES TO YOU ABSENT SUCH LIMITATION.
12. REMEDIES; AUDITS.You acknowledge and agree that the Software and Services contains valuable trade secrets and proprietary information of HARMAN or its suppliers. You further acknowledge and agree that any actual or threatened breach or violation of Section 2 or Section 3 of this Agreement will constitute immediate, irreparable harm to HARMAN for which monetary damages would be an inadequate remedy, and that HARMAN shall be entitled to injunctive relief for any such breach or violation without the necessity of proving damages or posting a bond. During the term of this Agreement and for two (2) years thereafter, HARMAN or its representatives may, upon at least ten (10) days’ written notice, inspect and audit records and, computer systems, related to the Software, and the premises of Customer during normal business hours to verify Customer’s compliance with this Agreement.
13. CONFIDENTIAL INFORMATION.By virtue of this Agreement, either party (or its agents) may have access to Confidential Information of the other party. “Confidential Information” means non-public information clearly identified as proprietary or confidential, or which given its nature and the circumstances surrounding its disclosure should reasonably be construed to be confidential. Any software, documentation or technical information, methodologies, plans or third party information, pricing or terms, or Customer information provided by HARMAN shall be deemed Confidential Information and trade secrets of HARMAN, without any marking or further designation. Each party agrees to hold the other party’s Confidential Information in confidence during the term of this Agreement and thereafter. Each party further agrees that, unless required by law, it will not make the other party’s Confidential Information available in any form to any third party or use such Confidential Information for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Confidential Information does not include information that: (a) is or becomes publicly available through no act or omission of the receiving party; (b) the disclosing party discloses to a third party without restriction on disclosure; (c) is disclosed to the other party by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (d) is independently developed by employees of the receiving party who had no access to such information; or (e) is already lawfully known to the receiving party without nondisclosure obligations before it received the Confidential Information from the disclosing party.
14. FORCE MAJEURE.Except for required payments, neither party shall be liable for failure to perform or for delay in performing its obligations to the extent and as long as such failure or delay is due to natural disasters, acts of war, acts of terror, significant changes in applicable laws or regulations or any other causes reasonably beyond the control of such party (each a “Force Majeure Event”). Any party invoking the protection of this Section shall promptly notify the other party of the Force Majeure Event and the extent to which the affected party will be unable to perform its obligations. Such excuse shall continue as long as the Force Majeure Event continues. When a Force Majeure Event ends, the excused party shall promptly give the other party written notice and resume performance. If a Force Majeure Event continues for any consecutive period of ninety (90) days, the other party shall have the right to terminate this Agreement upon providing written notice to the non-performing party. This termination shall be effective no earlier than thirty (30) days from the date of notice delivery.
15. GOVERNMENT END USERS; NOTICE OF RESTRICTED RIGHTS.If a government entity is “Customer” hereunder, such Customer hereby acknowledges and agrees that the Software qualifies as “commercial” within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Software, and shall supersede any conflicting contractual terms and conditions. If the license granted by this Agreement fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused, to HARMAN. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
16. GENERAL.You will comply with all applicable laws and regulations in your activities under this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall not be affected or impaired. You may not assign or transfer this Agreement without HARMAN’s prior written consent. Nothing herein will be construed to create any agency, employment, partnership, principal-agent relationship, or other joint enterprise between the parties. This Agreement may be amended only by a writing signed by you and HARMAN. This Agreement constitutes the complete, final, and exclusive statement of the agreement between you and HARMAN, and supersedes all proposals, oral or written, and all other communications between the parties relating to its subject matter. No waiver of any provision of this Agreement is valid unless made in writing and signed by HARMAN. The section headings contained in this Agreement are inserted for convenience of reference only and shall not be deemed to be a part of this Agreement. This Agreement may be executed in as many counterparts as required, and all counterparts shall constitute a single Agreement. This Agreement shall inure to the benefit of the parties and their respective successors and authorized assigns. Except as expressly provided otherwise in this Agreement, this Agreement is intended to be for the sole and exclusive benefit of the parties.
17. GOVERNING LAW; NOTICES17.1 Notices. Notices must be delivered in writing by courier, by certified or registered U.S. mail (postage prepaid and return receipt requested) or by nationally recognized overnight courier service, and will be effective upon receipt or three (3) business days after being deposited in the U.S. mail, whichever is sooner. HARMAN shall issue notices to the Customer address in the applicable Order. For HARMAN, issue notices to: General Counsel, HARMAN Connected Services Inc, 636 Ellis Street, Mountain View, CA 94043, USA. 17.2 Governing Law. This Agreement will be governed by the laws of the State of California, irrespective of its choice of law provisions. All actions or proceedings arising under or related to this Agreement must be brought in a federal or state court located in Santa Clara, California, and each party hereby agrees to irrevocably submit to the jurisdiction and venue of these courts. Notwithstanding the foregoing, each party may bring an action or suit to protect its intellectual property rights in any court having jurisdiction.