Infotools Harmoni Software Licence Agreement
Updated February 18, 2019
This Infotools Harmoni Software Licence Agreement was published February 18, 2019. You can see the previous version here.
Terms and Conditions
1. Definitions and interpretation
1.1. The definitions and interpretation requirements are set out in Schedule 1 of this Agreement.
2.1. Right to Use. For the relevant Access Term, to the extent allowed by the End User Type and for the number of End Users for which you have agreed to pay the Fees, we grant you and your End Users a non-exclusive right to access and use Infotools Harmoni on the terms and conditions detailed in this Agreement or otherwise agreed by the Parties from time to time in writing.
2.2. Transfer. You may only transfer the right to use Infotools Harmoni granted under clause 2 in the manner and on terms allowed under this Agreement.
2.3. Use of Data. Subject to our obligations under clauses 7.2 and 9 and any restrictions on the use of Data and in particular Personal Data imposed under those clauses, you grant us for the Term a worldwide, non-exclusive, fully paid up, transferable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations under this Agreement.
3. Acceptable use
3.1. End Users. You control access by End Users and you are wholly responsible and will be jointly and severally liable to us for, their access to and use of Data, Infotools Harmoni, Projects and Results and any of the Services we provide under or in connection with this Agreement.
3.2. Acceptable Use. You and your End Users must use Infotools Harmoni in a reasonable manner that is acceptable to us in our sole discretion.
3.3. Limitations. Without limiting the generality of clause 3.1:
a. You may transfer to another End User a single right to access and use Infotools Harmoni as an Explorer or Creator purchased under this Agreement a maximum of two times per annual purchase period;
b. Each End User is only permitted to register and use three Devices from which Infotools Harmoni can be accessed and used;
c. Each End User may only be logged into Infotools Harmoni from one such Device at a time; and
d. You may allow your clients or customers to view any Results produced (Viewer Access) by you or your End Users but must not grant Viewer Access to the general public at large.
3.4. Restrictions. We reserve the right to restrict or throttle access to Infotools Harmoni or Results to any party authorized to access the same under this Agreement, including under 3.3(c) if we consider, in our sole discretion, that such access to or use of Infotools Harmoni is excessive or unduly burdensome on us or our Underlying System. We will advise you in advance of our intention to exercise our rights under this clause.
3.5. Technical Environment. You will be solely responsible for acquiring and maintaining a Technical Environment suitable to access and use Infotools Harmoni.
3.6. Account Owner.
a. You must designate and advise us of the name and contact details of your Account Owner.
b. The Account Owner must be authorized to enter into this Agreement on your behalf and will be our point of contact for any issues regarding your compliance with this Agreement.
c. Any change to the Account Owner or their contact details must be notified to us in writing as soon as possible and we will not be liable to you in any way for the consequences of any failure to do so.
3.7. Account Security. You are responsible for maintaining the confidentiality of any authentication credentials required by you or your End Users to access Infotools Harmoni. You must notify us promptly if you become aware of any potential misuse of your account or authentication credentials or any security incident related to Infotools Harmoni.
4. Additional offerings
a. Payment of the Fees gives you access to our Support Services up to a maximum number of hours per week as determined by us as reasonable in the circumstances (Support Cap).
b. We will advise your Account Owner in writing if we consider that your use of the Support Services has or is likely to exceed the Support Cap.
c. Any additional Support Services we provide over the Support Cap will be charged at a rate of USD150 (converted into same currency as the licence fees if not USD) per hour.
a. If you or your End Users are a New Client, we may also provide you with the Initial Onboarding Services for the Initial Onboarding Term on payment of the Initial Onboarding Fee.
b. Any training of your End Users after the Initial Onboarding Term will be provided by us as a Related Service under cause 4.3.
4.3. Related Services.
a. We will let you know if you request any Service that we consider, in our sole discretion, falls outside the scope of the Support Services or the Initial Onboarding Services.
b. We may provide that additional Service as a Related Service under a separate written agreement on terms to be agreed from time to time.
c. Once agreed in writing, a Related Service agreement and the terms of that agreement forms a part of this Agreement.
4.4. Conflict of Terms. To the extent that the terms of any Related Service agreement conflicts with the terms of this Agreement, the terms of the Related Service will have precedence.
5.1. Payment. We will issue an invoice to you detailing any Fees due under this Agreement. Payment in advance is required for monthly subscribers. Payment for annual subscribers is due in full within 30 Days of the date of the invoice.
5.2. Default. A failure to pay any amounts due under 5.1 constitutes a breach of this Agreement allowing us to suspend or terminate your access to Infotools Harmoni or to suspend the provision of any of our Services, in whole or in part, without further notice.
6. Project hosting
6.1. Active Projects. So long as payment of the Fees are up to date, Infotools will continue to host Projects that are regularly accessed, viewed or manipulated (Active Projects).
6.2. Inactive Project. If you have not accessed, viewed or otherwise manipulated a Project for a period of 36 months, we will consider that Project to be inactive (Inactive Project).
6.3. Notice. We will contact your Account Owner to provide details of the Inactive Project (Inactivity Notice).
6.4. Deletion. Subsequent to the issue of an Inactivity Notice, we may delete an Inactive Project from our servers in full with no backup on the following basis:
a. The Account Owner specifically authorizes the deletion of the Inactive Project from our servers; or
b. If the Account Owner fails to respond to the Inactivity Notice for any reason and the Inactive Project remains inactive, we will delete the Inactive Project from our servers two months from the date the Inactivity Notice was issued to the Account Owner.
6.5. Hosting. So long as payment of the Fees are up to date, we may continue to host an Inactive Project subsequent to an Inactivity Notice on terms to be agreed by the Parties in writing from time to time.
7. Our obligations
7.1. Service Levels.
a. Infotools intends that Infotools Harmoni should be available 24 hours a day, seven days a week. It is possible, however, that on occasions it may be unavailable to permit maintenance or other development activity to take place.
b. If for any reason Infotools has to interrupt Infotools Harmoni for longer periods than Infotools would normally expect, Infotools will use reasonable endeavors to Notify the Account Owner.
7.3. Data Security. We will keep your Data secure in accordance with Good Industry Practice. Our data security provisions are available on request.
8. Intellectual Property
8.1. Ownership. You acknowledge and agree that we are the owner of:
a. all Intellectual Property in and related to Infotools Harmoni, Desktop Harmoni, Sites, Underlying Systems, Related Services and any Updates;
b. all new Intellectual Property in and related to Infotools Harmoni, Desktop Harmoni, Sites, Underlying Systems, Related Services and any Updates,
and that you will not dispute that ownership.
8.2. Your Rights. We do not claim ownership rights, Intellectual Property Rights or any other interest in any Data or Results or any Intellectual Property Rights in any branding or trade dress created by or used by you on the landing page of any Site.
8.3. Feedback. If you provide us with ideas, comments or suggestions relating to any aspect of Infotools Harmoni, Sites, the Underlying System or the Services (collectively “Feedback”):
a. all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned by us; and
b. we may use or disclose that Feedback for any purpose.
9. Data and confidential information
9.1. Data. You are solely responsible for the content of the Data and you will secure and maintain all rights and authorities in the Data necessary for us to provide Infotools Harmoni to you without violating the rights of any party under any applicable Law.
9.3. Confidentiality Obligation. The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) must, unless it has the prior written consent of the Disclosing Party, keep the Disclosing Party’s Confidential Information confidential at all times.
9.4. Exceptions. Clause 9.3 does not apply to any disclosure of the Confidential Information:
a. subject to the terms of any separate written agreement with the Disclosing Party as to specific confidentiality requirements, to the Receiving Party’s End Users, and personnel or professional advisers on a strictly need to know basis where the End Users, personnel are aware of, and comply with, the provisions of clause 9.3;
b. where the disclosure is required by law;
c. which is publicly available through no fault of the Receiving Party, its End Users or personnel; or
d. that is rightfully received by the Receiving Party from a third party without restriction and without breach of any obligation of confidentiality.
10.1. Creation of Sites. In your capacity as a authorized user of Infotools Harmoni under this Agreement you may have the ability to create a Site through which:
a. your clients (Client) may access, view and manipulate Projects and any associated Results or Data;
b. your Client’s other service providers who are also authorized users of Infotools Harmoni (Third Party Providers), will be able to publish Projects and any associated Results or Data,
and you agree to allow such access to the Site by your Client and their Third Party Providers on the terms of this Agreement.
10.2. End Users. For the avoidance of doubt, you agree that your Client is an End User for the purposes of this Agreement. The rights, obligations and liabilities of the Third Party Providers, however, will be governed by their own agreements with us.
11. Our warranties and disclaimers
11.1. Own Risk. You use Infotools Harmoni entirely at your own risk. Access to Infotools Harmoni is provided by us on an ‘as is’ basis.
11.2. Exclusions. To the maximum extent permitted by law, we expressly exclude all other warranties, express or implied, in relation to your access to and use of Infotools Harmoni or the Services.
11.3. Limitation of Remedies. Where a Law implies into this Agreement a condition or warranty regarding your access to and use of Infotools Harmoni that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement. However, our liability for any breach of that condition or warranty is limited to re-supplying access to Infotools Harmoni.
12. Your warranty
12.1. Data Controller. Where you have or may supply Personal Data to us in your capacity as a Data Controller you warrant that you have obtained all necessary consents to enable us to process Personal Data for the purposes of us fulfilling our obligations to you as a Data Processor under this Agreement.
13. Limitation of liability
13.1. Access. To the maximum extent permitted by law, Infotools will not be liable to you (whether in contract, tort, equity or otherwise) for any Loss of any kind arising out of or in connection with your direct access to Infotools Harmoni or any Support Services under this Agreement, regardless of the cause of such Loss or whether you have been advised of the possibility of such Loss. This clause 13.1 does not apply to limit our liability under the indemnity in clause 14.2.
13.2. Services. Our liability for any Related Services will be determined by the separate agreement entered into by the Parties in relation to those Related Services.
14.1. Your indemnity. You agree to fully indemnify us and hold us harmless from and against any and all claims, suits, actions, proceedings or Loss incurred, suffered or brought against us in respect of or in connection with:
a. your and your End Users access to and use of Infotools Harmoni, Services, Data and the Results (other than to the extent we are required to indemnify you against such claims, suits, actions, proceedings or Loss under clause 14.2);
b. a claim by a third party that the Data infringes the rights of that third party, breaches any applicable Law, or that the Data is objectionable, incorrect or misleading;
c. your warranty under clause 12.1;
d. any party that has gained access to Infotools Harmoni through your deliberate or negligent actions or omissions.
14.2 Our IP indemnity.
a. We indemnify you against any claim or proceeding brought against you to the extent that claim or proceeding alleges your use of Infotools Harmoni in accordance with this Agreement constitutes an infringement of a third party's Intellectual Property Rights (IP Claim). The indemnity is subject to you:
i. promptly notifying us in writing of any IP Claim;
ii. making no admission of liability and not otherwise prejudicing or settling the IP Claim, without our prior written consent; and
iii. giving us complete authority and information required for us to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for our account.
b. The indemnity in clause 14.2a does not apply to the extent that an IP Claim arises from or in connection with:
i. your breach of this Agreement;
ii. the use of Infotools Harmoni in a manner or for a purpose not reasonably contemplated by this Agreement or otherwise not authorised in writing by us;
iii. any Data; or
iv. modification or alteration of Infotools Harmoni by a person other than us.
c. If at any time an IP Claim is made, or in our reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, we may (at our option):
i. obtain you for the right to continue using the items that are the subject of the IP Claim; or
ii. modify, re-perform or replace the items that are the subject of the IP Claim so they become non-infringing.
15.1. Access Suspension. Your and your End User’s access to Infotools Harmoni, Projects and Services will be automatically suspended on expiry of the Access Term unless:
a. In the case of a monthly Access Term, you have paid the Access Fees for the following month’s use of Infotools Harmoni in which case your right to use Infotools Harmoni will continue or be reinstated as context requires;
b. In the case of a yearly Access Term, we have invoiced you for the following year’s access to and use of Infotools Harmoni and the deadline to pay the invoice under clause 5.1 has not expired;
c. As otherwise agreed by the Parties from time to time.
15.2. Security Suspension. We may suspend your and your End Users access to and use of Infotools Harmoni, Projects and/or any Services without notice if it is reasonably needed to prevent unauthorized access to Infotools Harmoni, the Underlying System or Data.
15.3. Reinstatement. We will lift a suspension under clause 15.2 as soon as the security breach has been resolved subject to our right to terminate under clause 16.6.
16. Term and termination
16.1. Term. This Agreement commences on the Commencement Date and ends on the End Date.
16.2. Termination without Cause. You may terminate this Agreement on written Notice to us such termination to take effect on the expiry date of the then current Access Term or such earlier time as agreed by the Parties in writing.
16.3. Earlier Termination. In the case of a termination under clause 16.2 where the Parties have agreed to an earlier effective termination date, this must be agreed in writing.
16.4. Termination for Cause. Either party (First Party) may immediately terminate this Agreement on providing written Notice to the other party (Second Party) if:
a. A Default Event occurs in respect of the Second Party;
b. The Second Party commits a material breach of this Agreement which is not capable of being remedied; or
c. The Second Party commits a material breach of this Agreement that is reasonably capable of being remedied, but has not been remedied by the Second Party within 20 Business Days after receiving a Notice from the First Party requiring it to remedy the relevant breach.
16.5. Default Event. Each of the following will be a Default Event for the purposes of clause 16.4(a):
a. the Second Party goes into liquidation, or a receiver, administrator, statutory manager or similar officer is appointed to all or any part of the business or assets of the Second Party;
b. the Second Party ceases, or threatens to cease, to carry on all or substantially all of its business; and
c. the Second Party makes any composition, arrangement or assignment with or for the benefit of, its creditors.
16.6. Termination by Us. In addition to our rights under clause 16.4, we may, by written notice to you, immediately terminate this Agreement if:
a. You or your End Users fail to comply with our reasonable requests regarding acceptable use of Infotools Harmoni;
b. We consider that the unauthorized access contemplated by clause 15.2 was due, in our sole discretion, to your or your End User’s acts or omissions; or
c. the remedies in clause 14.2c are exhausted without remedying or settling the IP Claim.
16.7. Consequences of Termination. On the date of termination of this Agreement (“Date of Termination”):
a. We will immediately stop, as context requires, providing access to Projects, Infotools Harmoni or Services;
b. We will remove or delete any Data, Projects or other Results without maintaining a backup within one month of the Date of Termination.
16.8. Continuing Obligations. The termination of the Agreement will not affect either party’s rights or remedies in respect of any breach of this Agreement by the other party, where that breach occurred before the termination of this Agreement.
16.9. Surviving Clauses: The provisions of clauses 8, 9, 11, 12, 13, 14 and this clause 16 and any other provisions of this Agreement which are required to give effect to those clauses will remain in full force.
17.1. Assignment. You may not transfer your rights and obligations under this Agreement without written authorization from us. We may assign or transfer our rights and obligations to any third party.
17.2. Authority. If you are an Account Owner accepting this Agreement on behalf of a Business, you represent that you have the legal authority to enter this Agreement on the Business’ behalf.
a. record the entire agreement and understanding of the parties in relation to the subject matter of this Agreement; and
b. supersede and cancel all previous understandings or agreements (whether written, oral or both) between the parties relating to that subject matter.
17.4. Law and Jurisdiction. This Agreement is governed by, and construed in accordance with, New Zealand law regardless of your country of origin or the country from which you access Infotools Harmoni. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the New Zealand courts in connection with these terms and conditions.
17.5. No Agency. This Agreement does not create an agency, partnership or joint venture.
a. You agree to receive electronic notices from us, which will be sent by email to the Account Owner. Notices are effective on the date of the return receipt or, for email, when sent. You are responsible for ensuring that the Account Owner email address that you specify is accurate and current. Any email notice that we send to that email will be effective when sent, whether or not you actually receive the email.
b. You must send notices by mail, return receipt requested, to this address: firstname.lastname@example.org
17.7. Rights and Remedies. The rights, powers and remedies in this Agreement are cumulative and are in addition to any rights, powers or remedies provided at law or in equity, unless specifically stated otherwise. Each party may pursue any remedy that it is entitled to pursue by law.
17.8. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, then (to the maximum extent permitted by law):
a. that provision will be severed from this Agreement; and
b. this will not affect the validity; or
c. enforceability of the other provisions of this Agreement.
17.9. Variation. We may vary this Agreement by providing written notice of the changes to your Account Owner. You agree that your Account Owner has the authority to accept these changes on your behalf. In the absence of your express consent, continued use of Infotools Harmoni after your Account Owner has been notified of the changes will constitute acceptance of the changes.
17.10. Waiver. A party will not be deemed to have waived any provision of this Agreement unless that waiver is in writing and signed by that party. Any such waiver will not be, or deemed to be, a waiver of any other right under these terms and conditions. Any failure or delay by a party to enforce any provision of this Agreement will not be considered to be a waiver of that provision.
Schedule 1: Definitions
1. In this Agreement, unless context requires otherwise:
Access Term means in the case of:
a. a monthly subscriber, one month from the date of payment of the Access Fees;
b. an annual subscriber, one year as per the period described on the relevant invoice.
Account Owner means the person(s) appointed or authorized by you to enter into this Agreement on your behalf and who will have overall responsibility for your and your End User’s, access to and use of Infotools Harmoni.
Business means the legal entity on behalf of which an Account Owner is entering into this Agreement and the Business’ successors and permitted assigns and in the case of a company, includes officers, employees, directors, parent companies, subsidiaries, and their successors and permitted assigns.
Confidential Information means the terms of this Agreement and any information of the disclosing party that is disclosed to, or accessed by, the receiving party, and relates to the disclosing party’s business, know-how, finances, customers, suppliers, processes, technology products and services, prices, ideas and technologies, whether or not such information is expressly identified as being confidential when it is disclosed to the receiving party, or is in a material form. Without limiting the generality of this definition Intellectual Property owned by Infotools is Infotools’ Confidential Information. The Data is your Confidential Information.
Creator means an End User that may access and use Infotools Harmoni to upload or connect to data, structure, analyze, visualize and share Projects, Results and Data.
Data means all data, content, and information (including Personal Data), owned, held, used or created by you or by End Users that is stored using, or inputted into, Infotools Harmoni.
Data Controller has the meaning ascribed to it in the GDPR.
Data Processor has the meaning ascribed to it in the GDPR.
End Date means the date this Agreement is terminated under clause 16.
End User means, as context requires, you or any person you permit to input Data or access Data hosted by Infotools, have access to and use Infotools Harmoni, Support Services, or a Related Service, and any entity or person with whom you share or otherwise grant access to Projects and/or the Results.
End User Type means, as context requires, a Viewer, Explorer or Creator.
Explorer means an End User that may access and use Infotools Harmoni to structure, analyze, visualize and share Results.
Fees means the fee or fees to be paid by you for access to and use of Infotools Harmoni by your End Users as Viewers, Explorers or Creators (Access Fees) and any Services (Service Fees) at the time and on the terms stated in this Agreement, our initial proposal document provided to you and/or as agreed in writing between the parties from time to time.
GDPR means the General Data Protection Regulation (EU) 2016/679.
Infotools Harmoni means the software owned by Infotools and used by you for the Purpose.
Infotools, we, us or our are references to Information Tools Limited and/or its directors, employees, parent companies, subsidiaries, and permitted assigns.
Initial Onboarding Fee means the fees to be paid by you to Infotools for the Initial Onboarding Service as agreed between the parties in writing from time to time.
Initial Onboarding Service means the process of Infotools providing training to a New Client and/or their End Users on the use of Infotools Harmoni as a Viewer, Explorer or Creator (as context requires) for a maximum of three months from the Commencement Date (Initial Onboarding Term) on terms to be agreed between the parties in writing from time to time.
Intellectual Property means all copyright, patents, trade marks, trade names, designs, domain names, trade secrets, formulations, inventions, models, plans, licences, know-how, databases, technical information, discoveries, ideas, data, research, results, reports, drawings, techniques, specifications, standards, methods, manuals, get-up, rights in computer software, copyright in works and all rights or forms of protection of a similar nature, throughout the world, whether or not registered, and (where applicable) any application to register any of these rights any includes any Update or any other enhancement, modification or derivative work of the Intellectual Property. Intellectual Property Rights has a consistent meaning.
a. any statute, regulation (including without limitation the GDPR), bylaw, ordinance or subordinate legislation in force from time to time to which a party is subject; or
b. the common law and the law of equity as applicable to the parties from time to time; or
c. any binding court order, judgement or decree; or
d. applicable industry code, convention, policy or standard enforceable by law; or
e. any applicable direction, policy, permission, consent, licence, rule or order that is binding on a party and that is made or given by any governmental, legal or regulatory body having jurisdiction over a party or any of that party’s assets, resources or business, in any jurisdiction in which Infotools, you, are resident.
New Client means a party to this Agreement or any End User that has never previously used Infotools Harmoni.
Personal Data has the meaning ascribed to it in the GDPR.
Project means a collection of Sources that can be organized, structured, analysed and visualized in a single View.
Purpose means use of Infotools Harmoni as a Viewer, Explorer or Creator (as context requires) for the Access Term on the terms and conditions of this Agreement and any additional terms and conditions as agreed by the parties in writing from time to time.
Related Service means any service provided by us in relation to your access to Infotools Harmoni and any further services that Infotools may provide to you from time to time.
Results means any outputs generated by your use of Infotools Harmoni.
Service means any service provided by us to you in relation to Infotools Harmoni and includes, without limitation, the Initial Onboarding Services, Support Services and Related Services.
Site means a web-based portal through which authorized parties may access, view and manipulate (as their authorization allows) Projects, Results and associated Data.
Source means a collection of Data that is either an imported file, or in a connected data system.
Support Services means the basic services provided by us to support your use of Infotools Harmoni but excluding those services we inform you, in writing or otherwise, are not included in the Support Services.
Technical Environment means an information and communications technology infrastructure, including but not limited to software, hardware, operating systems, servers, internet access, local area networks and wide area networks.
Term of Agreement has the meaning given to it by clause 16.1.
Underlying System means the Technical Environment used to provide Infotools Harmoni including any third party solutions, systems and networks.
Update means any enhancement, modification, improvement, patch, bug fix, release version or successor to Infotools Harmoni.
View means a table or graph within Infotools Harmoni.
Viewer means any End User that has been granted the right to access and use Infotools Harmoni to view Results.
Website means the website that can be found at www.infotools.com.
You and your are, where context dictates, references to you the individual or you the Business.
2. Interpretation. In this Agreement, unless the context indicates otherwise:
a. headings are for convenience only and do not affect this Agreement’s interpretation;
b. references to a party include that party’s successors and permitted assignees;
c. each defined expression has the meaning corresponding to that definition throughout this Agreement;
d. references to persons includes individuals, companies, corporations, partnerships, firms and other entities;
e. references to the singular include the plural and vice versa;
f. references to a gender include the other genders;
g. the use of the terms includes or including does not imply any limitations.