Terms of Service
UPDATED: December 2021
THIS IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND HARLOW. BY ACCESSING OR USING THE SERVICES, CUSTOMER IS AGREEING, ON BEHALF OF AN INDIVIDUAL AND/OR A LEGAL ENTITY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT. This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement or (b) Customer’s use of the Service (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (c) you have full legal authority to bind your employer or such entity to this Agreement; (d) you have read and understand this Agreement; and (e) you agree to this Agreement on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not indicate your acceptance to this Agreement by creating a Customer Account or purchasing the Services. PLEASE NOTE THAT IF YOU SIGN UP FOR THE SERVICE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (i) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (ii) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (iii) THE WORD “YOU” OR “CUSTOMER” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.
IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS AND THE SERVICE AND WEBSITES PROVIDED BY HARLOW ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER SECTIONS BELOW.
As used in this Agreement, the following defined terms apply:
1.1 Affiliate means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, through majority ownership of voting securities or equity interests.
1.3 Customer means the legal entity or individual that has subscribed to or utilizes any Services from Harlow.
1.4 Customer Account means an account for Customer that is required to access and utilize the applicable Services.
1.5 Customer Content means any data uploaded to Customer’s Account for storage or data in Customer’s computing environment to which Harlow is provided access in order to perform Services.
1.6 Fees means all fees and charges charged by Harlow applicable to the Services, including any Subscription fees.
1.7 Intellectual Property Rights means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
1.8 Logs means records of Services, including, but not limited to, data and information on performance, stability, usage, security, support, and technical information about devices, systems, related software, services, or peripherals associated with Customer’s use of Services.
1.9 Open-Source Software means third party software distributed under an open-source licensing model.
1.10 Services means the generally available Harlow software-as-a-service offerings inclusive of any services delivered through any unified, hosted Harlow service delivery platform, including any Updates, as well as associated technical support services to maintain the Services. The Services also includes features of Harlow’s website, regardless of whether included in a Subscription, such as Harlow’s blog. Harlow or its authorized agents may update the Services with Updates at any time in its sole discretion. Services are of an electronic nature delivered to you remotely via a technology infrastructure and with minimal or no human intervention.
1.11 Subscription means the access to the Service purchased by Customer for a specific period of time.
1.12 Subscription Term means the length of Customer’s Subscription to the Services, as selected by Customer upon sign-up.
1.13 Taxes means all applicable transactional taxes on Services (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), and tariffs and/or duties) imposed by any government entity or collecting agency based on the Services.
1.14 Updates means any corrections, bug fixes, features or functions added to or removed from the Services, but shall not include any new Service(s) not generally included with the Services purchased.
1.15 User means an individual that is authorized by Customer to access the Services through Customer’s assignment of a single user ID. Customer shall purchase a subscription to the Service for each paid User.
1.16. Harlow means Harlow, Inc., a Delaware Corporation.
1.17Harlow Marks means any name, logo, or mark belonging to Harlow or its Affiliates.
2.1 Right to Use Service for Business.Subject to this Agreement, Harlow, with the assistance of Harlow third-party service providers, will provide the Services in accordance with and subject to the terms of this Agreement. Harlow hereby grants Customer a limited, personal, non-exclusive, non-transferable worldwide license to use the Services up to the number of Subscriptions purchased. Only one (1) User may access and utilize a Customer Account and the Services per Subscription purchased. Updates to the Services are managed by Harlow and are included in the Fees. Customer shall use the then current version of the Services, including any Updates, as made available by Harlow.
2.2 Limitations on Use. Except to the extent permitted by applicable law, Customer agrees not to (a) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile, or attempt to decipher any code relating to the Services and/or Harlow technology; (b) knowingly or negligently access or use the Services in a manner that abuses or disrupts the Harlow networks, security systems, Customer Accounts, or Services of Harlow or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means; (c) transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous, infringing of any third-party intellectual property rights, or otherwise violative of any applicable laws, rules, or regulations; (d) market, offer to sell, and/or resell the Services (but the Services may be used by Customer in support of Customer’s proprietary service offering(s)); (e) if the Customer is a Harlow competitor for the relevant Services, use the Services directly or indirectly for competitive benchmarking or other competitive analysis, unless permitted under applicable law; and (f) upload any Protected Health Information (“PHI”) as such term is defined under the Health Insurance Portability and Accountability Act of 1996, as amended.
2.3 Violations of Limitations on Use. If Customer becomes aware or receives notice from Harlow or its agents that any Customer Content or any User’s access to or use of Customer Content violates Section 2.2, Customer must take immediate action to remove the applicable part of the Customer Content or to suspend the User’s access to the Services, as applicable. Harlow may ask Customer to remediate, and if Customer fails to comply with such request, Harlow may suspend the Services pursuant to the terms of this Agreement or terminate Customer’s Customer Account.
2.4 Use of Service Outside of United States of America. The Service is controlled and operated by Harlow from its and its agents’ offices in the United States of America. Except as explicitly set forth herein, Harlow makes no representations that the Services are appropriate for use in other jurisdictions. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local laws. Harlow may offer services in other jurisdictions that are subject to different terms and conditions. In such instances, the terms and conditions governing those non-U.S. services shall take precedence over any conflicting provisions in this Agreement.
2.5 Proprietary Rights.Except for the limited use rights expressly granted herein, Customer has no right, title, or interest in or to the Services or Harlow Marks or any intellectual property rights related thereto.
2.6 Open-Source Software and Integrations. The Services utilize and incorporate with certain Open-Source Software or other publicly-available platforms. Notwithstanding anything set forth in this Agreement, your use of Open-Source Software or other platforms with which the Services may be integrate shall in all ways be exclusively governed by the open-source license(s) and any corresponding terms and conditions.
2.7 Third Party Products, Services, or Content. The Services may contain features or functions that enable interoperation with third party products, services, or content. Harlow may also provide access to third party products, services, or content directly within the Services. Third party products, services, or content, and customer content in third party services, are not part of the Services and are not warranted or supported by Harlow. Customer’s use of such third-party products, services, or content is subject to the terms of the third-party provider. Customer acknowledges that providers of such third-party services, products, or content may have access to Customer data in connection with the interoperation and support of such third-party products, services, or content with the Service. To the extent Customer authorizes the access or transmission of Customer data (including data covered by the Data Processing Agreement attached hereto) through a third-party service, Harlow shall not be responsible for any use, disclosure, modification, or deletion of such Customer data or for any act or omission on the part of the third-party provider or its service.
3. TRIALS; SUBSCRIPTION TERMS; FEES
3.1 Trial Subscriptions. Customer may access a version of the Service on a fourteen-day free-trial basis (a “Trial”) subject to the terms of this Agreement; provided, however, the following additional terms shall apply to its Trial notwithstanding anything to the contrary herein: (a) Harlow shall have the right to terminate a Trial at any time and for any reason; (b) Harlow is providing the Service “as is” and makes no warranties (express or implied) of any kind with respect to the Service during the Trial; and (c) Harlow shall have no obligation to indemnify Customer during the Trial or for any claim that arises as a result of Customer’s use of the Service during the Trial. During the Trial, certain features of the Services may not be available. At any time during the Trial, Customer may convert the trial into a paid subscription. Customer acknowledges that after the trial period expires, customer will need to select a paid subscription option to continue to use the service.
3.2 Paid Subscriptions. Upon expiration of the Trial, Customer must select a Subscription plan to continue using the Service. Customer’s Subscription Fees are set forth on the sign-up page on Harlow’s website and are based on the version of the Service purchased – monthly or annual. Customer shall pay all Fees when due and is responsible for providing complete and accurate billing information to Harlow. If such Fees are being paid via credit card or other electronic means, Customer authorizes Harlow to charge such Fees using Customer’s selected Payment Method (defined below). PAYMENT OBLIGATIONS FOR SUBSCRIPTIONS ARE NON-CANCELABLE AND FEES PAID ARE NON-REFUNDABLE UNLESS OTHERWISE PROVIDED HEREIN. IF YOU ARE LOCATED IN THE EUROPEAN UNION OR THE UNITED KINGDOM, BY PURCHASING A SUBSCRIPTION, YOU EXPRESSLY WAIVE YOUR RIGHT TO CANCEL YOUR MEMBERSHIP WITHIN THE FOURTEEN (14) DAY RIGHT-TO-CANCEL UNDER THE CONSUMER RIGHTS DIRECTIVE AND SIMILAR COUNTRY-SPECIFIC REGULATIONS, SUCH AS THE UK CONSUMER RIGHTS ACT. If applicable, where Customer designates use of a third-party payment processor network (such as a payment agent, for example), Customer shall be responsible for payment of all fees and charges associated with use of such network. Harlow reserves the right to suspend or terminate Customer’s account, in addition to all of its other available rights and remedies, in the event that Customer’s account becomes overdue. Suspension shall not relieve Customer’s obligation to pay amounts due.
3.3 Auto-Renewal of Subscription. Customer agrees that the Subscription will automatically renew on the calendar day corresponding to the commencement of Customer’s Subscription either an annual or monthly basis depending on the Subscription Term selected by Customer (the “Renewal Date”). In the case of an annual Subscription, Harlow will provide Customer with at least a thirty (30) day notice prior to the Renewal Date of Customer’s annual Subscription. HARLOW WILL AUTOMATICALLY BILL CUSTOMER EACH BILLING PERIOD ON THE RENEWAL DATE. CUSTOMER AUTHORIZES HARLOW TO AUTOMATICALLY CHARGE CUSTOMER FOR THE APPLICABLE FEES ON OR AFTER THE RENEWAL DATE UNLESS THE SUBSCRIPTION HAS BEEN TERMINATED OR CANCELLED IN ACCORDANCE WITH THIS AGREEMENT. Customer can view the specific details of its Subscription plan by checking the Billing & Subscriptions page available after logging into the Service.
3.4 Calculation of Fees. Subscription Fees are based on annual or monthly periods that begin on the Subscription start date and Renewal Date thereof. If any month of Customer’s Subscription term does not contain the anchor date of when Customer first subscribed, then the Subscription Fees will be billed to Customer on the last day of the applicable month (for example, a Subscription purchased on January 31 will be billed on February 28 (or February 29 in a leap year), then March 31, April 30, and so on). Harlow reserves the right to revise Fees at any time and will provide Customer with notice of any increases to Customer’s Subscription rate at least thirty (30) days prior to the new Fee taking effect. If Customer does not accept the increase or addition to the existing Fees, Customer may elect to terminate its Subscription during the then-current billing period and Customer shall not be liable for such Fee increase after the applicable billing period; however, any later renewal of Service will be subject to the increased Fee structure. Harlow may charge Customer the then-current pricing for the applicable Subscription if Customer changes its Subscription plan.
3.5 Taxes. Any Fees charged to Customer are exclusive of taxes. Except for those taxes based on Harlow’s net income, Customer shall be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Service be subject to withholding tax by any government, Customer shall reimburse Harlow for such withholding tax.
3.6 Cancellation of Subscription. Subscriptions may be cancelled at any time via Customer’s Account under the “Billing and Subscriptions” page. Except and to the extent required by applicable law, HARLOW DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIODS OR ANY FEATURE OR COMPONENT OF THE SERVICE THAT CUSTOMER HAS PAID FOR BUT NOT USED. If Customer chooses to cancel its Subscription during the Subscription Term, Customer may use the Service until the end of Customer’s then-current Subscription Term or Renewal Date but will not be issued a refund for the most recently (or any previously) charged Fees. After expiration of the billing period following Customer’s cancellation of the Subscription, Customer will no longer have access to their Customer Account, the Service, or any data within in the Service. Customer must save or export any Customer Content prior to expiration of applicable billing period. Harlow reserves the right to permanently delete or archive Customer’s data, including any Customer Content, following Customer’s cancellation or any termination of a Subscription.
3.7 Future Features & Functionality. Customer agrees that any purchases under this Agreement are not contingent on the delivery of any future feature or functionality or dependent on any oral or written public or private comments made by Harlow regarding future features or functionality. Harlow may release improvements, Updates, and other features and functionality in its discretion. Some features and functionality may be available only with certain versions of the Service.
3.8 Consent to Charge Payment Method; Updating Payment Method. To utilize the Services, Customer must provide one or more Payment Methods. “Payment Method” means a current, valid, accepted method of payment (such as a credit or debit card), as may be updated from time to time and which may include payment through Customer’s account with a third party. You may update your Payment Methods via your Customer Account settings. Harlow may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the Fees to the applicable Payment Method(s). You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your Subscription, we may suspend your access to the Services until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details. In no event will Harlow be liable to you for any such fees.
4. TERM AND TERMINATION
This Agreement commences on the Effective Date and shall remain in effect until all Subscriptions to the Service granted in accordance with this Agreement have expired or been terminated. Either party may terminate this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party, except that termination will take effect on notice in the event of a breach of Section 2 or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days. Upon expiration or termination of this Agreement for any reason, all Subscriptions and any other rights granted to Customer under this Agreement shall immediately terminate, and Harlow may immediately deactivate Customer’s Account(s) associated with the Agreement. In no event will any termination relieve Customer of the obligation to pay any Fees accrued or payable to Harlow.
Customer agrees that all terminations for cause shall be made in Harlow’s sole and absolute discretion and that Harlow shall not be liable to Customer or any third party for any termination of Customer’s Account, or access to the Service.
5. CUSTOMER CONTENT AND CUSTOMER ACCOUNT
5.1 Customer Content. Customer retains all rights to any and all of its Customer Content, subject to a non-exclusive, worldwide, royalty-free, license to Harlow as necessary to provide the Services hereunder. Each party shall apply reasonable technical, organizational, and administrative security measures, as appropriate relative to the Services, to keep Customer Content protected in accordance with industry standards. If Harlow reasonably believes a problem with the Services may be attributable to Customer Content or Customer’s use of the Services, Customer shall cooperate with Harlow to identify the source of and to resolve the problem. Customer shall comply with all laws, rules, and regulations, including any intellectual property laws and obligations, related to the Customer Content, as well as all legal duties applicable to Customer by virtue of using the Services, including providing all required information and notices and obtaining all required consents. Harlow reserves the right to delete or make unavailable any Customer Content in the event it reasonably believes that Customer Content violates any laws, rules, or regulations; infringes, or is alleged to infringe, the intellectual property rights of any third-party; or is in any way offensive, indecent, or otherwise objectionable. This Agreement states Harlow’s exclusive obligations with respect to care of Customer Content. Harlow reserves the right delete Customer Content and any Customer Account after a free account has been inactive for 180 days. Harlow also reserves the right to delete a Customer Account, and any associated Customer Data, associated with an expired or terminated Subscription.
5.2 User-Generated Content. If Customer provides any user-generated content in connection with any features of Harlow’s website, including Harlow’s blog, Customer represents and warrants that such content will: (a) comply with all applicable laws, rules, and regulations; (b) not infringe the intellectual property of any third-party; and (c) not mention or promote any violence or be otherwise offensive, indecent, or objectionable. Harlow reserves the right to remove or delete any user-generated content in its absolute and sole discretion and in no event will Harlow be liable to Customer for deletion of the same. Additionally, you understand that any user-generated content submitted by you may be utilized and distributed by Harlow in its marketing materials, including but not limited to, Harlow’s website(s), emails, and social channels. By submitting any user-generated content, you agree that all “moral rights” that you may have in such user-generated content have been voluntarily waived by you and you do not require that any personally identifying information be used in connection with the Content that you submit, or any derivative works of or upgrades or updates thereto.
5.3 Customer Account. Customer is solely responsible for (i)the configuration of Customer’s Account; (ii) the operation, performance, and security of Customer’s equipment, networks, and other computing resources used to connect to the Services; (iii) maintaining the confidentiality of Customer’s Account, User IDs, conference codes, passwords, and/or personal identification numbers used in conjunction with the Services, including not sharing login information among Users; and (iv) all uses of the Services that occur using Customer’s password or Account. Customer will notify Harlow immediately of any unauthorized use of its Account or any other breach of security. Ownership of Customer’s Account is directly linked to the individual or entity that completes the registration process for the Account. Customer acknowledges that Harlow will rely on the information provided for issues arising with the Customer Account.
5.4 Customer Account Access/Instructions. The Customer Account owner, and any authorized User, will have access to information in the Customer Account. Harlow will not provide access to any other User at any time. Customer agrees that Harlow may rely on instructions given by the Customer Account owner either through the Account dashboard or via email from the address on file for the Customer Account owner. Customer agrees not to request access to or information about an account that is not owned by the Customer. In the event of a dispute regarding Customer Account data, Harlow will only release information to another party other than the Customer Account owner pursuant to a court order or other notarized waiver and release as determined by Harlow.
5.5 Consent to Receive Communications. By creating a Customer Account (free or paid) or enrolling in a Subscription, you agree to receive advertising, marketing materials, and other communications from Harlow at the e-mail address with which you created your Customer Account. You may unsubscribe from receiving marketing emails at any time by clicking the “unsubscribe” link contained in the email footer or by contacting firstname.lastname@example.org.
6. INTELLECTUAL PROPERTY
6.1 Harlow Intellectual Property. Harlow owns and will continue to own all right, title, and interest, including all related Intellectual Property Rights, in and to its Confidential Information, the Harlow Marks, the Results, and the Service, including any enhancements, customizations, or modifications thereto, and any user-generated content submitted on Harlow’s site. Where Customer purchases a Subscription hereunder, Harlow grants to Customer a limited, revocable, non-sublicensable, non-exclusive license to use any reports, analytics, content (excluding Customer Content), and other materials developed by Harlow as a result of the Services (“Results”) solely in conjunction with Customer’s authorized use of the Service and in accordance with this Agreement.
6.2 Suggestions. Harlow welcomes feedback from its customers about the Service. If Customer (including any User) provides Harlow with any feedback or suggestions regarding the Service (“Feedback”), Harlow may use, disclose, reproduce, sublicense, or otherwise distribute and exploit the Feedback without restriction or any obligation to Customer or any User provided that Harlow shall not identify Customer or any User as the source of such Feedback.
7. WARRANTIES AND WARRANTY DISCLAIMER
7. 1 LIMITED WARRANTY FOR PAID SUBSCRIPTIONS. HARLOW WARRANTS THAT THE SERVICES ASSOCIATED WITH ANY PAID SUBSCRIPTION WILL MATERIALLY CONFORM TO THE DESCRIPTION OF THE SERVICE AVAILABLE ON HARLOW’S WEBSITE. HARLOW’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT HARLOW’S SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES OR TO TERMINATE THE NON-CONFORMING SERVICES AND PROVIDE A PRORATED REFUND OF ANY UNUSED PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE, AND RELIEF FROM ANY SUBSEQUENT ANNUAL PAYMENTS DUE, WITH RESPECT TO SUCH SERVICE.
7.2 DISCLAIMER OF WARRANTY FOR WEBSITE; TRIALS. HARLOW PROVIDES THE WEBSITE, FREE TRIALS, AND FREE CUSTOMER ACCOUNTS “AS IS” AND WITHOUT WARRANTY. These terms supersede any conflicting terms and conditions in this Agreement.
7.3 WARRANTY DISCLAIMER. THE FOREGOING LIMITED WARRANTY SET FORTH IN SECTION 6.1 DOES NOT COVER PROBLEMS ARISING BY ACCIDENT, ABUSE, OR USE IN A MANNER INCONSISTENT WITH THIS AGREEMENT OR RESULTING FROM EVENTS BEYOND HARLOW’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, UNAVAILABILITY OF OR OPERATION IN COMBINATION WITH A THIRD-PARTY NETWORK OR SYSTEM, HARDWARE, SOFTWARE, SERVICE, OR DATA. TO THE EXTENT PERMITTED BY APPLICABLE LAW, HARLOW AND ITS AFFILIATES, SHAREHOLDERS, INVESTORS, LICENSORS, AND SERVICE PROVIDERS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, AND ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, OR LACK OF VIRUSES, BUGS, OR ERRORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY IF CUSTOMER IS LOCATED IN SUCH A JURISDICTION. THE TERMS AND CONDITIONS ASSOCIATED WITH ANY OPEN-SOURCE SOFTWARE OR THIRD-PARTY PLATFORMS WITH WHICH THE SERVICES INTEGRATE MAY CONTAIN ADDITIONAL WARRANTIES AND/OR WARRANTY DISCLAIMERS.
7.4 Beta Services. The Services do not include beta services. CUSTOMER ACKNOWLEDGES THAT ANY BETA SERVICES ARE OFFERED “AS-IS” FOR INTERNAL DEMONSTRATION, TEST, OR EVALUATION PURPOSES AND WITHOUT WARRANTY. Such Services may contain bugs, errors, and other defects. Harlow does not make any representations, warranties, promises, or guarantees that such services will be publicly announced or made generally available. Harlow has no obligation to provide technical support or continued availability, and such services can be suspended or terminated at any time by Harlow in its sole discretion with or without notice to Customer.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL HARLOW BE LIABLE TO CUSTOMER OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL LOSSES, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA; (ii) LOSS OF INCOME; (iii) LOSS OF OPPORTUNITY; (iv) LOST PROFITS; and (v) UNAVAILABILITY OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES, IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF HARLOW AND ITS AFFILIATES, SHAREHOLDERS, INVESTORS, LICENSORS, AND SERVICE PROVIDERS ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE TERMS AND CONDITIONS ASSOCIATED WITH ANY OPEN-SOURCE SOFTWARE OR THIRD-PARTY PLATFORMS WITH WHICH THE SERVICES INTEGRATE MAY CONTAIN ADDITIONAL LIMITATIONS OF LIABILITY.
9. ADDITIONAL TERMS
9.1 Copyright. Harlow reserves the right to delete or disable any allegedly infringing content, to require that Customer terminate the accounts of Users who are repeat infringers, and to forward the information in the copyright-infringement notice to the User who allegedly provided the infringing content. If you believe that any content on Harlow’s website or within the Service infringes your intellectual property, please provide Harlow’s copyright agent listed below with the following information in writing:
- Identification and description of the infringing material or activity along with information sufficient to identify the location on Harlow’s website or within the Services of such material or activity;
- Identification and description of the copyrighted work that you claim has been infringed;
- Your name, address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the use in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement by you, under the penalty of perjury, that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of the exclusive right which is being infringed;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright.
Harlow’s copyright agent for notice of claims of copyright infringement for Harlow’s website and the Services is as follows:
Copyright Agent, Harlow, Inc., 5214 Diamond Heights Blvd, San Francisco, CA 94131 and via e-mail to email@example.com. In the subject line of any electronic notification please type “ATTN: COPYRIGHT AGENT.” Harlow may give you notice that it has removed or disabled access to certain material by. Means of a general notice on its website or within the Services, as applicable; electronic mail; or by written communication sent to the physical address included in the notice.
9.2 Consent to Use Logs. Harlow and its service providers may collect and use Logs for purposes of facilitating the Services, including securing, managing, measuring, and improving the Services. Logs may be used for purposes not specified in this Section only in an aggregated, anonymized form.
9.3 Security and Privacy. When providing the Services, Harlow will (a) implement and maintain reasonable administrative, physical, and technical security controls and (b) process personal data on Customer’s behalf as set forth in Schedule A: the Harlow Data Processing Addendum.
9.4 Suspension of Service. Harlow reserves the right to suspend Customer’s access to a Service if it determines, in its sole discretion, that (a) payment for the Services is not received on the date payment is due; (b) Customer’s or its Users’ use of the Services are in breach of this Agreement; (c) Customer failed to timely address Harlow’s request to take action pursuant to Section 2.3; (d) Customer’s use of the Services poses a security or other risk to the Services or to other users of the Services; or (e) suspension is required pursuant to a subpoena, court order, or other legal process. In most instances Harlow will use reasonable efforts to notify Customer of any such suspension; however, Harlow reserves the right to immediately suspend Customer’s and its Users’ access to or use of the Services if required by law or if Harlow determines, in its sole discretion, that Customer’s or its Users’ use of the Services presents an imminent threat, security issue, or violation of any applicable law, rule, or regulation. Customer will remain responsible for all Fees incurred before or during any suspension. Harlow reserves the right, in its discretion, to impose reasonable fees to restore archived data upon Customer request from delinquent accounts.
9.5 Assignment. Harlow may assign this Agreement for any purpose, at any time, and in its sole discretion. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without Harlow’s prior written consent, except that Customer may assign this Agreement in whole to an Affiliate, or a successor in interest as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Customer shall provide notice to Harlow upon completion of any permitted assignment. Any attempted assignment in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of each party’s successors or permitted assigns.
9.6 Export Restriction and Compliance with Laws. Customer acknowledges that the Services are subject to U.S., foreign, and international export controls and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including, but not limited to, the U.S. Export Administration Regulations (“EAR”) and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). Customer also specifically agrees not to, directly or indirectly, allow access to or use of the Services in embargoed or sanctioned countries/regions, by sanctioned or denied persons, or for prohibited end-uses under U.S. law without authorization from the U.S. government. Both parties also agree to comply with all other laws, rules and regulations applicable to that party under this Agreement.
9.7 Audit.To the extent permitted by applicable law, you agree to allow Harlow to audit your compliance with this Agreement.
9.8 Notices. All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the account for Customer or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (a) upon personal delivery; (b) if delivered by air courier or email, upon confirmation of receipt; or (c) five (5) days after deposit in the mail. A copy of all legal notices from Customer to Harlow must also be sent to firstname.lastname@example.org. Harlow may provide Customer with non-legal notices through in-product messaging or dashboards, which shall likewise be deemed effective immediately. The notice provisions set forth herein as to Harlow will not constitute effective service of process. Service of process must be delivered to Harlow’s registered agent.
9.9 Entire Agreement; Order of Precedence. The Agreement sets forth the entire agreement and understanding of the parties relating to the Services and Customer Content and supersedes all prior and contemporaneous oral and written agreements. For any conflict between this Agreement and any supplementary terms, this Agreement shall control. Nothing contained in any document submitted by Customer shall in any way add to or otherwise modify the Agreement. The terms of this Agreement may be updated by Harlow from time to time without notice (but will be identified by the last updated date) and may be reviewed anytime at https://www.meetharlow.com/terms. Customer’s continued access to and use of the Services constitutes acceptance of the then-current terms.
9.10 General Terms.Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement. The provisions of Sections 1 (Definitions), 2.2 (Limitations on Use), 2.5 (Proprietary Rights), 3 (Trials; Subscription Terms; Fees), 5 (Customer Content and Customer Account), 6 (Intellectual Property), 7 (Warranties and Warranty Disclaimer); 8 (Limitation of Liability), 9.2 (Consent to Use Logs), 9.8 (Notices), 9.9 (Entire Agreement), 9.10 (General Terms), and 9.11 (Dispute Resolution) shall survive any termination of the Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties. Harlow may subcontract responsibilities under this Agreement but remains responsible for its breach of this Agreement by the acts or omissions of Harlow or its subcontractors. No person or entity not a party to this Agreement will be deemed to be a third-party beneficiary of this Agreement or any provision hereof. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any party unless agreed to in writing by such party. Harlow’s failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative. This Agreement is agreed to through purchase (including automatic renewals) and/or use of the Services. Neither party will be responsible or have any liability for any delay or failure to perform its non-monetary obligations hereunder to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of God, earthquake, fire, flood, sanctions, pandemics, endemics, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities, and severe weather (“Force Majeure”). The affected party will give the other party prompt written notice (when possible) of the failure to perform due to Force Majeure and use its reasonable efforts to limit the resulting delay in its performance.
9.11 Dispute Resolution. If a dispute should arise between you and Harlow, we want to provide you with a resolution that is efficient and cost effective. If your dispute cannot be resolved directly with our team, this Agreement describes how we will proceed with the resolution of the dispute.
THE FOLLOWING PROVISIONS RELATE TO DISPUTES, CLAIMS, AND CLASS ACTIONS. IT IS IMPORTANT THAT YOU READ THESE PROVISIONS CAREFULLY BEFORE ACCEPTING THESE TERMS.
- Binding Arbitration. ANY CLAIM OR DISPUTE BY YOU RELATING IN ANY WAY TO YOUR USE OF THE SERVICES, THE HARLOW WEBSITE, A SUBSCRIPTION, YOUR CUSTOMER ACCOUNT, OR THEIS AGREEMENT SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION. ARBITRATION REMOVES YOUR RIGHT TO LITIGATE A CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. IT IS IMPORTANT THAT YOU READ THIS PROVISION CAREFULLY BEFORE ACCEPTING THESE TERMS.The arbitration will be administered by the American Arbitration Association (“AAA”) under its then-current arbitration rules. If any AAA rule conflicts with this Agreement, this Agreement shall control. You can obtain procedures, rules, and fee information from the AAA at www.adr.org or 1-800-778-7879. Any participatory arbitration hearing that you attend shall take place in Boise, Idaho and Delaware law will apply during the arbitration. The judgment upon the award rendered by the arbitrator shall be final and binding and may be entered in any court of competent jurisdiction. Unless inconsistent with applicable law, each party shall bear the expense of their respective attorneys’, experts’, and witness fees, regardless of which party prevails in the arbitration.
- NO CLASS ACTIONS. TO THE EXTENT ALLOWED BY LAW, YOU WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING. YOU UNDERSTAND THAT BY AGREEING TO THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST HARLOW IN AN INDIVIDUAL CAPACITY IN ACCORDANCE WITH THIS SECTION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
- Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.
Harlow Data Processing Addendum
1. Scope, Order of Precedence, and Parties
This Data Processing Addendum (“DPA”) applies to the Processing of Personal Data by Harlow on Your behalf when providing Services under the Agreement. In the event of a conflict between the terms of the Agreement and this DPA, the terms of this DPA shall control. In the event of a conflict between the terms of this DPA and the EU Standard Contractual Clauses, the terms of the EU Standard Contractual Clauses shall control.
“You” means the end-customer specified in the Agreement.
“Affiliate” means any subsidiary of Harlow that may assist Harlow in the Processing of Your Personal Data under this DPA.
“Aggregate” means information that relates to a group or category of individuals, from which identities have been removed such that the information is not linked or reasonably linkable to any individual subject to Applicable Data Protection Law.
“Applicable Data Protection Laws” means (i) the EU General Data Protection Regulation 2016/679 (“GDPR”) and laws or regulations implementing or supplementing the GDPR and (ii) any other international, federal, state, provincial and local privacy or data protection laws, rules, regulations, directives and governmental requirements currently in effect and as they become effective that apply to the Processing of Personal Data under this DPA.
“European Economic Zone” means the European Economic Area, Switzerland, and the United Kingdom for the purpose of this DPA.
“New EU Standard Contractual Clauses” or “New EU SCCs” mean the contractual clauses annexed to the EU Commission Decision 2021/914/EU or any successor clauses approved by the EU Commission.
“Original EU Standard Contractual Clauses” or “Original EU SCCs” mean the contractual clauses annexed to the EU Commission Decision 2010/87/EU.
“Personal Data” means any Customer Content Processed in connection with the performance of Services that can identify a unique individual, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of individuals or as such information may be otherwise defined under Applicable Data Protection Laws.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise Processed in order to perform the Services that compromises the security of the Personal Data.
Terms used but not defined in this DPA shall have the same meaning as set forth in the Agreement or Applicable Data Protection Laws.
3. Roles as Data Controller and Data Processor
For purposes of this DPA, You are the Data Controller of the Personal Data Processed by Harlow in its performance of the Services under the terms of the Agreement. You are responsible for complying with your obligations as a Controller under Applicable Data Protection Laws governing your provision of Personal Data to Harlow for the performance of the Services, including without limitation obtaining any consents, providing any notices, or otherwise establishing the required legal basis. Unless specified in the Agreement, You will not provide Harlow with access to any Personal Data that imposes specific data protection requirements greater than those agreed to in the Agreement and this DPA, and you will limit Harlow’s or its agents access to Personal Data as necessary to perform the Services.
Harlow is the Data Processor and service provider with respect to such Personal Data, except when You act as a Processor of Personal Data, in which case Harlow is a sub-Processor. Harlow is responsible for complying with its obligations under Applicable Data Protection Laws that apply to its Processing of Personal Data under the Agreement and this DPA.
4. Harlow’s Purpose of Processing
Harlow and any persons acting under its authority under this DPA, including sub-Processors and Affiliates as described in Section 6, will Process Personal Data only for the purposes of performing the Services in accordance with your written instructions as specified in the Agreement, this DPA, and in accordance with Applicable Data Protection laws. Harlow will not disclose Personal Data in response to a subpoena, judicial, or administrative order, or other binding instrument (a “Demand”) unless required by law. Harlow will promptly notify You of any Demand unless prohibited by law and provide You reasonable assistance to facilitate Your timely response to the Demand. Harlow may also Aggregate Personal Data as part of the Services in order to provide, secure, and enhance Harlow products and Services. Additional details related to Harlow’s Processing activities may be specified in the Agreement.
Harlow may provide Personal Data to Affiliates in connection with any anticipated or actual merger, acquisition, sale, bankruptcy, or other reorganization of some or all of its business, subject to the obligation to protect Personal Data consistent with the terms of this DPA.
5. Data Subjects and Categories of Personal Data
You determine the Personal Data to which You provide Harlow access to in order to perform the Services. This may involve the Processing of Personal Data of the following categories of Your Data Subjects:
- Employees and applicants
- Clients, customers, and end users
- Suppliers, agents, and contractors
The Processing of Your Personal Data may also include the following categories of Personal Data:
- Direct identifiers such as first name, last name, date of birth, and home and/or business address
- Communications data such as home telephone number, cell telephone number, email address, and postal mail
- Other data such as financial, goods or services purchased, device identifiers, online profiles and behavior, and IP address
- Other Personal Data to which You provide Harlow access in connection with the provision of products or Services
The Services may contain features or functions that enable interoperation with third party products, services, or content. Subject to the terms of this DPA, You authorize Harlow to engage sub-Processors and Affiliates for the Processing of Personal Data. Harlow may also provide access to third party products, services, or content directly within the Services. Third party products, services, content in third party services, are not part of the Services and are not warranted or supported by Harlow. Customer’s use of such third party products, services, or content and the principles of data processing related to Customer’s use of such third party products, services, or content is subject to the terms of the third party provider.
7. International Transfer of Personal Data
Harlow may transfer Personal Data to the United States and/or to other third countries as necessary to perform the Services, and you appoint Harlow to perform any such transfer in order to process Personal Data as necessary to provide the Services. Harlow will follow the requirements of this DPA regardless of where such Personal Data is stored or Processed.
Where the Processing involves the international transfer of Personal Data under Applicable Data Protection Laws in the European Economic Zone to Harlow, Affiliates, or sub-Processors in a jurisdiction (i) that has not been deemed by the European Commission to provide an adequate level of data protection, and (ii) there is not another legitimate basis for the international transfer of such Personal Data, such transfers are subject to either the EU Standard Contractual Clauses or other valid transfer mechanisms available under Applicable Data Protection Laws. For international transfers subject to:
- the Original EU SCCs for jurisdictions that have not adopted the New SCCs, the parties hereby incorporate by reference the Original EU SCCs in unmodified form.
- the New EU SCCs in unmodified form.
For such purposes, You will act as the Data Exporter on Your behalf and on behalf of any of Your entities, Harlow will act as the Data Importer on its own behalf and/or on behalf of its Affiliates. With respect to the New EU SCCs, the parties agree to the following: (a) Clause 7 shall be omitted; (b) Clause 9 shall be governed by Option 2 (General Authorisation) and provide for a 14 day advance notice; and for Clauses 17, 18 and Annex 1, the parties choose Ireland and the Supervisory Authority of Ireland. For purposes of Clause 9 of the Original EU SCCs, Swiss law shall apply to transfers subject to the Swiss Federal Data Protection Act and United Kingdom law shall apply to transfer subject to the UK GDPR.
Where the Processing involves the international transfer of Personal Data under other Applicable Data Protection Laws to Harlow, Affiliates, or sub-Processors, such transfers are subject to the data protection terms specified in in this DPA and Applicable Data Protection Laws.
8. Requests from Data Subjects
Harlow will make available to You the Personal Data of Your Data Subjects and the ability to fulfill requests by Data Subjects to exercise one or more of their rights under Applicable Data Protection Laws in a manner consistent with Harlow’s role as a Data Processor. Harlow will provide reasonable assistance to assist with Your response. If Harlow receives a request directly from Your Data Subject to exercise one or more of their rights under Applicable Data Protection Laws, Harlow will direct the Data Subject to You unless prohibited by law.
Harlow shall implement and maintain appropriate technical and organizational practices designed to protect Personal Data against any misuse or accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data.
10. Personal Data Breach
Harlow shall notify You without undue delay after becoming aware of a Personal Data Breach involving Personal Data in Harlow’s possession, custody, or control. Such notification shall at least: (i) describe the nature of the Personal Data Breach including, where possible, the categories and approximate number of Your Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (ii) provide the name and contact details of the data protection officer or other contact where more information can be obtained; and (iii) describe the measures taken or proposed to be taken to address the Personal Data Breach including, where appropriate, measures to mitigate its possible adverse effects. You will coordinate with Harlow on the content of any public statements or required notices to individuals and/or supervisory authorities.
11. Your Instructions and Providing Information & Assistance
You may provide additional instructions to Harlow related to the Processing of Personal Data that are necessary for You and Harlow to comply with our respective obligations under Applicable Data Protection Laws as a Data Controller and Data Processor (or Processor and sub-Processor, as applicable). Harlow will comply with Your instructions at no additional charge, provided that in the event that Your instructions impose costs on Harlow beyond those included in the scope of Services under the Agreement, the parties agree to negotiate in good faith to determine the additional costs. Harlow will promptly inform You if it believes that Your instructions are not consistent with Applicable Data Protection Laws, provided that Harlow shall not be obligated to independently inspect or verify Your Processing of Personal Data. Harlow will provide You with information reasonably necessary to assist You in enabling Your compliance with Your obligations under Applicable Data Protection Laws.
12. Return and Deletion of Personal Data
Harlow will, at Your choice and upon Your request, return to You and/or destroy all Personal Data after the termination or expiration of Your Subscription to the relevant Services, except to the extent Applicable Data Protection Law requires storage of the Personal Data. Harlow will otherwise retain any Personal Data in accordance with applicable laws, rules, and regulations. Personal Data stored in any third-party integrations with the Services is subject to the terms of such third-party service. If Harlow has not received Your election within thirty (30) days of such termination or expiration, Harlow may assume that You have selected deletion and reserves the right to delete Personal Data consistent with the foregoing. Harlow will continue to comply with the relevant provisions of this DPA until such data has been deleted. Harlow will delete Customer Content after Your Subscription expired and Your Account has been inactive for 180 days following such expiration.
13. Data Protection Officer
You may contact Harlow’s data protection officer at email@example.com.
This Agreement becomes effective upon your purchase or use of the Services.