THIS AGREEMENT IS BETWEEN HARBOR ALUMINUM INTELLIGENCE UNIT, LLC (“HARBOR”) AND CLIENT (AS DEFINED BELOW). THESE TERMS AND CONDITIONS FOR SUBSCRIBERS (“TERMS”) GOVERN CLIENT’S PURCHASE AND USE OF HARBOR’S DATA, REPORTS AND SUBSCRIPTION SERVICES (THE “LICENSED MATERIAL”) OFFERED BY HARBOR, AND SUBSCRIBED TO BY CLIENT, AS INDICATED ON CLIENT’S SUBSCRIPTION INVOICE (THE “INVOICE”), THE TERMS OF WHICH ARE HEREBY FULLY INCORPORATED HEREIN. THE TERMS, TOGETHER WITH THE INVOICE, ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT.”
BY SUBSCRIBING TO HARBOR’S SERVICES OR USING HARBOR’S LICENSED MATERIALS, CLIENT AGREES TO ABIDE BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS IT NOW EXISTS AND MAY HEREAFTER BE AMENDED.
1.1. “CLIENT” SHALL MEAN THE INDIVIDUAL OR ENTITY INDICATED ON THE INVOICE ON BEHALF OF ITSELF AND THE SPECIFIC USERS DESIGNATED BY CLIENT AND APPROVED BY HARBOR IN WRITING (“AUTHORIZED USERS”).
1.2. CLIENT AGREES NOT TO GRANT ACCESS TO THE LICENSED MATERIAL TO ANY PERSON OTHER THAN AN AUTHORIZED USER FOR USE OF THE LICENSED MATERIAL CONSISTENT WITH THE PERMITTED USE ONLY, AND TO SAFEGUARD AND MAINTAIN THE CONFIDENTIALITY OF THE LICENSED MATERIAL.
1.3. HARBOR HEREBY GRANTS TO CLIENT A LIMITED NON-EXCLUSIVE, NON- TRANSFERABLE, NON-SUBLICENSABLE, REVOCABLE RIGHT TO RECEIVE, ACCESS, AND READ, THE LICENSED MATERIAL FOR CLIENT’S PERSONAL, INTERNAL BUSINESS, NON-COMMERCIAL, INFORMATIONAL AND/OR EDUCATIONAL USE, BUT FOR NO OTHER PURPOSE, AND TO TEMPORARILY STORE THE LICENSED MATERIALS ON AUTHORIZED USERS’ DEVICES SOLELY TO ENABLE SUCH USE PURPOSES (THE “PERMITTED USE”).
1.4. WITHOUT LIMITING THE FOREGOING AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, OR EXPRESSLY AGREED TO IN WRITING BY HARBOR, CLIENT SHALL NOT AT ANY TIME, AND SHALL NOT ALLOW ANY AUTHORIZED USERS, OR ANY OTHER USERS, TO DIRECTLY, OR INDIRECTLY: (A) COPY, MODIFY, REPRODUCE, DUPLICATE, OR CREATE DERIVATIVE WORKS OF THE LICENSED MATERIAL, IN WHOLE OR IN PART; (B) RENT, LEASE, LEND, SELL, SUBLICENSE, ASSIGN, DISTRIBUTE, PUBLISH, TRANSFER, OR OTHERWISE MAKE AVAILABLE THE LICENSED MATERIAL; (C) REVERSE ENGINEER, DISASSEMBLE, DECOMPILE, DECODE, ADAPT, OR OTHERWISE ATTEMPT TO DERIVE OR GAIN ACCESS TO THE SOURCE OF THE LICENSED MATERIAL OR METHODS USED TO COMPILE THE LICENSED MATERIAL, IN WHOLE OR IN PART; (D) REMOVE ANY PROPRIETARY NOTICES OR DISCLAIMER INCLUDED WITHIN THE LICENSED MATERIAL; OR (E) PUBLISH, ENHANCE, OR DISPLAY THE LICENSED MATERIAL OR ANY COMPILATION OR DIRECTORY BASED UPON INFORMATION DERIVED FROM THE LICENSED MATERIAL (THE “USE RESTRICTIONS”).
1.5. THE LICENSED MATERIAL SHALL BE DELIVERED TO AUTHORIZED USERS VIA EMAIL TO THE EMAIL ADDRESS(ES) PROVIDED BY CLIENT, AND IN SOME CASES MAY BE MADE AVAILABLE VIA THE HARBOR MOBILE APPLICATION (“HARBOR APP”), ACCESSIBLE ONLY THROUGH AN AUTHORIZED USER’S PERSONAL ACCOUNT, CREATED BY HARBOR. HARBOR SHALL PROVIDE EACH AUTHORIZED USER WITH LOGIN CREDENTIALS, INCLUDING A USERNAME AND PASSWORD, (“LOGIN CREDENTIALS”) FOR LOGGING IN TO THE HARBOR APP THROUGH SUCH PERSONAL ACCOUNT, AND/OR ACCESSING THE LICENSED MATERIALS.
2.1 THIS AGREEMENT SHALL START ON THE START DATE INDICATED ON THE INVOICE (“START DATE”), AND REMAIN IN FORCE UNTIL THE END DATE STIPULATED IN THE INVOICE (“END DATE”) (THE PERIOD STARTING ON THE START DATE AND ENDING ON THE END DATE, IS HEREINAFTER REFERRED TO AS THE “SUBSCRIPTION PERIOD”). CLIENT MAY ELECT TO RENEW THE AGREEMENT FOR AN ADDITIONAL PERIOD THAT IS AS LONG AS THE SUBSCRIPTION PERIOD (“RENEWAL PERIOD”), PROVIDED, HOWEVER, THAT CLIENT NOTIFIES HARBOR OF ITS REQUEST TO RENEW THE SUBSCRIPTION PERIOD 60 DAYS PRIOR TO THE EXPIRATION OF THE SUBSCRIPTION PERIOD, OR THE THEN IN EFFECT RENEWAL PERIOD. (THE SUBSCRIPTION PERIOD, AND THE RENEWAL PERIOD, IF ELECTED, ARE HEREINAFTER COLLECTIVELY REFERRED TO AS THE “TERM”).
2.2 HARBOR MAY TERMINATE THIS AGREEMENT AT ANY TIME DURING THE SUBSCRIPTION PERIOD FOR ANY REASON OR NO REASON, WITHOUT NOTICE, AND WITHOUT ANY LIABILITY ARISING FROM SUCH TERMINATION. WITHOUT LIMITING THE FOREGOING, IN THE EVENT OF TERMINATION FOR ANY REASON OTHER THAN CLIENT’S VIOLATION OF THIS AGREEMENT, HARBOR, AT ITS DISCRETION, MAY REIMBURSE CLIENT THE PRORATED FEES PAID FOR THE REMAINING UNUSED SUBSCRIPTION PERIOD.
2.3. UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR ANY REASON, ALL RIGHTS GRANTED TO CLIENT UNDER THIS AGREEMENT SHALL TERMINATE, EXCEPT THAT CLIENT MAY RETAIN, FOR PERMITTED USES ONLY, LICENSED MATERIALS THAT HAVE ALREADY BEEN DELIVERED TO CLIENT; PROVIDED, HOWEVER, THAT CLIENT AGREES TO BE BOUND BY THE USE RESTRICTIONS ALSO AFTER TERMINATION OF THE SUBSCRIPTION PERIOD. NOTWITHSTANDING THE FOREGOING, HARBOR SHALL HAVE THE RIGHT TO REQUEST THE RETURN, DELETION AND/OR DESTRUCTION OF ANY LICENSED MATERIAL IN CLIENT’S POSSESSION OR CONTROL, AND CLIENT SHALL FULFILL SUCH REQUEST IMMEDIATELY.
3.1. CLIENT SHALL PAY HARBOR A FEE FOR THE AMOUNT STIPULATED IN THE INVOICE FOR THE USE OF THE LICENSED MATERIAL FOR THE DURATION OF THE SUBSCRIPTION PERIOD (“TOTAL AMOUNT”).
3.2. CLIENT SHALL PAY A SEPARATE FEE FOR THE RENEWAL PERIOD (“RENEWAL FEE”) WHICH RENEWAL FEE SHALL BE FOR THE AMOUNT STIPULATED IN THE INVOICE AS PART OF THE TOTAL AMOUNT, OR AS OTHERWISE COMMUNICATED IN WRITING BY HARBOR TO CLIENT.
3.3. THE TOTAL AMOUNT, AND IF APPLICABLE, THE RENEWAL FEE, (COLLECTIVELY, “SUBSCRIPTION FEES”) SHALL BE PAID WITHIN THE LESSER OF 30 DAYS OF ISSUANCE OF AN INVOICE, OR THE PERIOD OF TIME STIPULATED IN THE INVOICE (EACH, “PAYMENT TERM”).
3.4 IF PAYMENT OF ANY OF THE SUBSCRIPTION FEES IS NOT RECEIVED BY HARBOR WITHIN THE APPLICABLE PAYMENT TERM, CLIENT SHALL BE IN MATERIAL BREACH OF THIS AGREEMENT, AND HARBOR SHALL HAVE THE RIGHT TO SUSPEND CLIENT’S RIGHTS UNDER THIS AGREEMENT, AND/OR TAKE ANY OTHER ACTION AVAILABLE UNDER APPLICABLE LAW AND/OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, TERMINATING THIS AGREEMENT.
4.1. CLIENT ACKNOWLEDGES THAT, AS BETWEEN HARBOR AND CLIENT, HARBOR OWNS OR CONTROLS THE RIGHT, TITLE, AND/OR INTEREST, INCLUDING INTELLECTUAL PROPERTY RIGHTS, IN AND TO THE LICENSED MATERIAL. CLIENT FURTHER ACKNOWLEDGES THAT: (A) THE LICENSED MATERIAL IS PROTECTED BY THE UNITED STATES COPYRIGHT LAWS; (B) HARBOR HAS DEDICATED SUBSTANTIAL RESOURCES TO DRAFT, DEVELOP, COLLECT, MANAGE, AND COMPILE THE LICENSED MATERIAL; AND (C) THE LICENSED MATERIAL CONSTITUTES TRADE SECRETS OF HARBOR. CLIENT SHALL HAVE NO RIGHTS IN OR TO THE LICENSED MATERIAL, OTHER THAN THOSE LIMITED RIGHTS EXPRESSLY SET FORTH IN THIS AGREEMENT.
4.2. CLIENT HEREBY GRANTS TO HARBOR A FULLY PAID UP, ROYALTY-FREE, WORLDWIDE, IRREVOCABLE, PERPETUAL LICENSE TO USE AND INCORPORATE INTO THE LICENSED MATERIAL ANY SUGGESTIONS, ENHANCEMENT REQUESTS, RECOMMENDATIONS, OTHER FEEDBACK PROVIDED BY CLIENT, OR DATA OR INFORMATION PROVIDED OR MADE AVAILABLE BY CLIENT, RELATING TO THE LICENSED MATERIAL (COLLECTIVELY, THE “FEEDBACK”). CLIENT SHALL NOT KNOWINGLY PROVIDE FEEDBACK THAT IS SUBJECT TO THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. CLIENT HEREBY ASSIGNS AND AGREES TO ASSIGN TO HARBOR ALL RIGHT, TITLE, AND INTEREST IN, AND HARBOR IS FREE TO USE, WITHOUT ANY ATTRIBUTION OR COMPENSATION TO ANY PARTY, ANY IDEAS, KNOW-HOW, CONCEPTS, TECHNIQUES, OR OTHER INTELLECTUAL PROPERTY RIGHTS CONTAINED IN THE FEEDBACK, FOR ANY PURPOSE WHATSOEVER, ALTHOUGH HARBOR IS NOT REQUIRED TO USE ANY FEEDBACK.
5.1. CLIENT SHALL MAINTAIN IN STRICT CONFIDENCE THE CONFIDENTIALITY OF, AND NOT DISCLOSE TO ANY THIRD PARTY: (A) THIS AGREEMENT AND RELATED DOCUMENTS AND COMMUNICATION; (B) THE LICENSED MATERIAL AND RELATED DOCUMENTS AND COMMUNICATION; (C) ANY LOGIN CREDENTIALS; AND (D) ALL FEEDBACK (COLLECTIVELY, “CONFIDENTIAL INFORMATION”).
5.2. UPON REQUEST BY HARBOR, OR UPON ANY EVENT OF TERMINATION OR EXPIRATION OF THIS AGREEMENT, CLIENT SHALL: (A) RETURN TO HARBOR ALL ORIGINALS AND COPIES OF DOCUMENTS CONTAINING CONFIDENTIAL INFORMATION OF HARBOR; OR (B) DESTROY, PERMANENTLY REMOVE OR, TO THE EXTENT SUCH DESTRUCTION OR PERMANENT REMOVAL IS COMMERCIALLY IMPRACTICAL, USE COMMERCIALLY REASONABLE EFFORTS TO PROHIBIT ACCESS TO, ALL CONFIDENTIAL INFORMATION OF HARBOR FROM OR STORED ON ANY COMPUTER, CLOUD, DISK OR OTHER DEVICE CONTAINING HARBOR’S CONFIDENTIAL INFORMATION.
6.1. CLIENT SHALL TAKE ALL MEANS REASONABLY NECESSARY TO ENSURE AUTHORIZED USERS COMPLY WITH THE TERMS OF THIS AGREEMENT. CLIENT SHALL PROMPTLY INFORM HARBOR IF CLIENT BECOMES AWARE OF: (A) ANY USE OF THE LICENSED MATERIAL BY AN UNAUTHORIZED USER; (B) ANY ACTUAL, THREATENED, OR SUSPECTED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF HARBOR IN THE LICENSED MATERIAL; OR (C) ANY CLAIM BY ANY THIRD PARTY THAT THE LICENSED MATERIAL INFRINGES THE INTELLECTUAL PROPERTY, OR OTHER RIGHTS, OF ANY OTHER PERSON.
6.2. CLIENT SHALL, AT THE REQUEST AND EXPENSE OF HARBOR, DO ALL SUCH THINGS AS MAY BE REASONABLY REQUIRED TO ASSIST HARBOR RECALLING AND/OR DESTROYING ANY LICENSED MATERIAL AND/OR IN TAKING OR RESISTING PROCEEDINGS IN RELATION TO ANY INFRINGEMENT OR CLAIM REFERRED TO IN THIS CLAUSE AND IN MAINTAINING THE VALIDITY AND ENFORCEABILITY OF THE INTELLECTUAL PROPERTY OF HARBOR IN THE LICENSED MATERIAL.
6.3 EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS SECTION, THE LICENSED MATERIAL IS PROVIDED “AS IS”, AND HARBOR HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY HEREBY ACKNOWLEDGES AND AGREES THAT ALL CONDITIONS, REPRESENTATIONS, WARRANTIES OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR INCORPORATED INTO THIS AGREEMENT OR ANY COLLATERAL CONTRACT, WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, ARE HEREBY EXCLUDED, INCLUDING ANY IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS AS TO MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF HARBOR HAS BEEN INFORMED OF SUCH INTENDED PURPOSE), THE USE OF REASONABLE SKILL AND CARE, VALIDITY, ENFORCEABILITY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY OTHERWISE ARISE DUE TO COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HARBOR MAKES NO WARRANTY THAT THE LICENSED MATERIAL, OR ANY PRODUCTS OR RESULTS OF ITS USE, SHALL BE ERROR FREE, FREE OF HARMFUL CODE, ACCURATE, COMPLETE, COMPLETELY SECURE, CONTINUOUSLY AVAILABLE, UNINTERRUPTED, SHALL WORK WITH ANY HARDWARE OR SOFTWARE, SYSTEM, OR OTHER SERVICES, THAT THE INFORMATION PROVIDED SHALL BE ADEQUATE FOR CLIENT’S OR ANY OTHER PERSON’S PURPOSES OR THAT CLIENT SHALL ACHIEVE ANY PARTICULAR RESULT.
6.4. HARBOR’S WARRANTIES SET OUT IN THIS CLAUSE ARE EXCLUSIVE OF AND IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS, AND OBLIGATIONS WHETHER IMPLIED OR EXPRESSED BY LAW.
7.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HARBOR SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES OR PUNITIVE OR EXEMPLARY DAMAGES OR ANY DAMAGES FOR: (A) LOSS OF PROFITS; (B) LOSS OF ANTICIPATED SAVINGS; (C) LOSS OF BUSINESS OPPORTUNITY; (D) LOSS OF REVENUE; (E) LOSS OF GOODWILL; (F) LOSS OR CORRUPTION OF DATA OR WORK STOPPAGE, OR COMPUTER FAILURE OR MALFUNCTION; (G) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA OR BREACH OF DATA OR SYSTEM SECURITY; OR (H) COST OF REPLACEMENT GOODS OR SERVICES. IN ALL CASES, THE FOREGOING DISCLAIMER SHALL APPLY REGARDLESS OF WHETHER HARBOR WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. THE AGGREGATE MAXIMUM LIABILITY OF HARBOR IN RESPECT OF ANY DIRECT OR OTHER LOSS (TO THE EXTENT THAT SUCH LOSS IS NOT EXCLUDED BY THIS AGREEMENT OR OTHERWISE) WHETHER SUCH A CLAIM ARISES IN CONTRACT AND/OR TORT SHALL NOT EXCEED A SUM EQUAL TO THAT PAID BY CLIENT FOR THE LICENSED MATERIAL DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF RECEIPT OF THE LICENSED MATERIAL THAT IS THE SUBJECT OF THE CLAIM.
7.3. CLIENT SHALL DEFEND AND HOLD HARBOR HARMLESS FROM AND AGAINST ALL THIRD PARTY CLAIMS DUE TO, OR ARISING OUT OF: (A) CLIENT’S MISUSE OF ANY LICENSED MATERIAL; (B) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CLIENT; (C) CLIENT’S BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT IN THIS AGREEMENT; OR (D) USE OF, OR RELIANCE ON, ANY LICENSED MATERIAL, INFORMATION OR CONTENT SUPPLIED BY HARBOR.
8.1. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO ITS SUBJECT MATTER AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS OF THE PARTIES, WHETHER WRITTEN OR ORAL.
8.2. HARBOR MAY, FROM TIME TO TIME, CHANGE THESE TERMS AS IT DEEMS NECESSARY, TO REFLECT ANY CHANGES RELATED TO THE SUBJECT MATTER OF THESE TERMS AND/OR APPLICABLE LAW. SUCH REVISIONS SHALL BE EFFECTIVE IMMEDIATELY, PROVIDED, HOWEVER, FOR EXISTING CLIENTS, SUCH REVISIONS SHALL, UNLESS OTHERWISE STATED, BE EFFECTIVE 30 DAYS AFTER POSTING.
8.3. HARBOR MAY ASSIGN THIS AGREEMENT TO ANY AFFILIATES, OR ANY ENTITY THAT SUCCEEDS TO ALL OR SUBSTANTIALLY ALL OF HARBOR’S BUSINESS OR ASSETS TO THE LICENSED MATERIAL. NEITHER THIS AGREEMENT NOR ANY OF THE RIGHTS OR OBLIGATIONS OF CLIENT HEREUNDER MAY BE ASSIGNED, TRANSFERRED, CHARGED, DELEGATED, SUBLICENSED, OR OTHERWISE DISPOSED OF IN WHOLE OR IN PART ON A TEMPORARY OR PERMANENT BASIS BY CLIENT, UNLESS CLIENT HAS OBTAINED THE PRIOR WRITTEN CONSENT OF HARBOR.
8.4. NO DELAY OR FORBEARANCE BY HARBOR IN ENFORCING ANY PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED AS A WAIVER OF SUCH PROVISION OR AN AGREEMENT THEREAFTER NOT TO ENFORCE THE SAID PROVISION ON THAT OR ANY OTHER OCCASION OR ANOTHER PROVISION ON ANOTHER OCCASION.
8.5. CLIENT AGREES THAT A MONETARY REMEDY FOR BREACH OF THIS AGREEMENT MAY BE INADEQUATE, IMPRACTICABLE, OR DIFFICULT TO PROVE, AND FURTHER AGREES THAT SUCH BREACH MAY CAUSE HARBOR IRREPARABLE HARM. ACCORDINGLY CLIENT AGREES THAT HARBOR MAY SEEK PRELIMINARY AND/OR PERMANENT INJUNCTIVE RELIEF FROM A COURT OF COMPETENT JURISDICTION FOR ANY VIOLATION OR THREATENED VIOLATION OF THIS SECTION WITHOUT THE NECESSITY OF PROVING ACTUAL DAMAGES OR POSTING ANY BOND OR OTHER SECURITY, AND CLIENT HEREBY WAIVES ANY SUCH REQUIREMENT FOR A BOND OR OTHER SECURITY.
8.6. THIS AGREEMENT IS GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE SOLE JURISDICTION AND VENUE FOR ANY ACTION THAT MAY ARISE UNDER OR IN RELATION TO THE SUBJECT MATTER HEREOF SHALL BE THE STATE OR FEDERAL COURTS IN AUSTIN, TRAVIS COUNTY, TEXAS. IN THE EVENT OF ANY ACTION ARISING OUT OF THE BREACH OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ITS REASONABLE ATTORNEY’S FEES AND COSTS.
9.1 HARBOR RESERVES THE RIGHT TO USE CLIENT’S NAME IN CUSTOMER LISTS, AND CLIENT HEREBY CONSENTS TO HARBOR’S USE OF CLIENT’S NAME IN CUSTOMER LISTS.
LAST UPDATED DECEMBER 7, 2023.