HARBR - SAAS TERMS AND CONDITIONS


Updated April 2021


  1. DEFINITIONS
    1. Agreement” means this Software as a Service (SAAS) license agreement, together with the Proposal, attached hereto.
    2. Company” means Harbr Inc.
    3. Confidential Information” means all know-how, trade or other secrets, and any other information or data, directly or indirectly, disclosed by one party (the “Disclosing Party”), to the other party (the “Receiving Party”) under this Agreement, (whether verbal, written, or existing, stored or communicated in any form or medium), including without limitation, technical information and data, equipment, documents, reports, analyses, recommendations, tests, drawings, financial data, correspondence, communications, pricing, products, design and function specifications, technologies, computer programs, software, systems, features, techniques, methodologies, processes, manuals, inventions (whether or not patentable), algorithms, configurations, business information, together with copies thereof, and all information and data derived therefrom, regardless of whether such knowledge, information or data is marked “confidential” or not, except to the extent such knowledge, information, or data: (i) (other than Personal Information) is or becomes publicly available through no breach of this Agreement or wrongful act of the Receiving Party or their Personnel; (ii) is known to the Receiving Party without restriction prior to receiving such information from the Disclosing Party; (iii) is required to be disclosed as a matter of legal compulsion, provided, however, that the Receiving Party will provide prior written notice to Disclosing Party to allow it to take such actions to protect its interests; (iv) is lawfully disclosed to a Party by a third party without restriction; or (v) is independently developed by the Receiving Party without use of Confidential Information of the Disclosing Party.
    4. Customer” means the purchaser of the Services. 
    5. Customer Data” means all forms and types of information provided by Customer to Company, or is otherwise collected, received, transmitted, uploaded, stored, and/or processed by Company from Customer, in the course of providing the Services to Customer, including Personal Information, Confidential Information, and information provided by customers of Customer or Users.
    6. “Intellectual Property Rights” means current and future copyrights, patent rights, trademark rights, industrial design rights (whether registered or unregistered, including any applications with respect thereto), proprietary information rights, and utility modules (including all such rights in computer software and databases), grants and registrations, claims for infringement and misappropriation and all other similar proprietary rights now known or hereafter recognized in any medium anywhere in the world.
    7. “Personal Information” means information that is personally identifiable information that can be used to identify a natural person, either alone or in combination with other information.
    8. “Personnel” includes directors, officers, employees, agents, consultants, representatives and other individuals employed, engaged or retained by Customer or Company, as the case may be.
    9. Proposal” means the proposal to be entered into between the Company and the Customer setting out certain terms of the relationship between the Company and the Customer, including pricing.
    10. Services” means collaboration, coordination, data automation, and data analytics services for use cases related to construction project management and construction invoicing and payments, as delivered through the Company’s web platform (the “Platform”) and SMS messaging.
    11. User” means an authorized user of the Services, which may include Personnel of the Customer and other third parties as described below, who have been (i) informed by Customer of the provisions of this Agreement prior to using the Services; and (ii) are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement. More specifically, Users include
      1. Analysts”: these are Users with the highest level of access to the Services, and are Customer Personnel.  Each Analyst shall create an Account, will have the authorization to interact with the Services directly through the Platform located at https://platform.harbr.com, and will have access to all information in respect of a current project;
      2. Co-ordinators”: these Users shall create an Account, will have the authorization to interact with the Services directly through the Platform located at http://platform.harbr.com, and will have limited access to information in respect of a current project.  Coordinators may be Customer Personnel, or a third party contractor authorized by the Customer.
      3. Collaborators”: these Users utilize the Services via SMS Assist, without use of the Platform or need to create an Account and will have access only to information which is directly shared with them by the Customer or Customer Personnel.  Collaborators will primarily be tradespeople engaged by sub contractors engaged by the Customer.
  2. SAAS SERVICES, USERS AND SUPPORT
    1. Subject to the terms of this Agreement, Customer subscribes to the Services as specified. Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit A.  
    2. As part of the registration process, Users will identify a user name, email address, and password in order to create an account from which to access the Services (a “User ID”).  Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
    3. Customer and its Users may access and use the Service solely for Customer’s internal use in the normal course of Customer’s business. Customer shall not permit anyone other than its Users to access the Service. Customer shall immediately notify Company in the event any User is no longer employed by Customer or otherwise no longer requires access to the Service. Customer is solely responsible for its Users and for all activities that occur under its User IDs, and assumes liability for all acts, omissions and conduct of its Users. Customer shall: (a) have sole responsibility for the accuracy and quality of all data inputted into the Service; (b) prevent unauthorized access to, or use of, the Service, and notify Company promptly of any such unauthorized access or use; and (c) comply with all applicable federal, provincial, state and local laws, rules and regulations in using the Service. Customer shall not: (i) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Service or related materials available, to any third party other than, as expressly permitted under this Agreement; (ii) knowingly send or store viruses, worms, time bombs, trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; or (v) use the Service for unlawful purposes or for any purpose not expressly permitted by this Agreement. Customer agrees that it shall provide and maintain, at its sole cost and expense, all hardware, mobile devices, tablets, software, internet access and other materials and devices necessary to permit Customer’s and its Users’ access to and use of the Service, as specified by Customer from time to time.
    4. Subject to the terms hereof, Company will provide Customer with reasonable technical support services, as outlined in the Proposal. 
    5. The Services and Platform are programmed to perform routine data backups as set out in the Company's data security policy in effect from time to time, a current version of which is attached hereto as Exhibit “B” (the "Data Security Policy"). Company will deliver to Customer its then most current backups of Customer Data as and when set forth in the Data Security Policy. In the event of any loss, alteration, destruction, damage, or corruption of Customer Data caused by the Services or the Company platform, Company will, as its sole obligation and liability and as Customer's sole remedy, use commercially reasonable efforts to restore the Customer Data from Company’s then most current backup of such Customer Data in accordance with the then current Data Security Policy.
    6. Company will employ security measures in accordance with applicable data security and privacy laws, and Company’s Data Security Policy as amended from time to time.
  3. RESTRICTIONS AND RESPONSIBILITIES
    1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.  
    2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations.  Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
    3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
  4. CONFIDENTIALITY; PROPRIETARY RIGHTS
    1. Each party (the “Receiving Party”) acknowledges and understands that the other party (the “Disclosing Party”) has disclosed or will disclose Confidential Information pursuant to this Agreement, and all such Confidential Information disclosed to the other party is confidential and proprietary to the Disclosing Party, and that as between the parties, all ownership, license, intellectual property and other rights to Confidential Information disclosed hereunder shall remain with the Disclosing Party.  Confidential Information of Company includes, without limitation, non-public information regarding features, functionality and performance of the Services.  Confidential Information of Customer includes Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services, or as otherwise permitted herein) or divulge to any third person any such Confidential Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can prove: (a) (other than Personal Information) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.  
    2. As between the Customer and Company, Customer shall own all right, title and interest in and to the Customer Data.  Company shall own and retain all right, title and interest in and to: (a) the Services, Platform and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) all data and information collected by the Company for its own purposes in accordance with this Agreement, and (d) all Intellectual Property rights related to any of the foregoing.     
    3. Notwithstanding anything to the contrary, Customer hereby expressly grants the Company a) during the Term of this Agreement, the right to access, use, collect, combine with other data and analyze Customer Data for the purpose of (i) the provision of the Services in accordance with this Agreement, and b) during and after the Term of this Agreement the right to access, use, combine (with other data, including data from third party sources) and disclose aggregated or anonymized data derived from Customer Data for the purpose of i) improving and enhancing the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings.  No rights or licenses are granted except as expressly set forth herein.   
  5. PAYMENT OF FEES
    1. Customer will pay Company the fees described in the Proposal for the Services in accordance with the terms therein (the “Fees”).  If Customer’s use of the Services requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Company’s customer support department.
    2. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in termination of the Services in accordance with Section 6 hereof. Customer shall be responsible for all taxes associated with the Services other than taxes based on Company’s net income.  
  6. TERM AND TERMINATION
    1. Subject to earlier termination as provided below, this Agreement is for the term of one year, or as mutually agreed otherwise in the Proposal, commencing on the date of the Proposal (“Initial Service Term”), and shall be automatically renewed for additional periods of one year, or as mutually agreed otherwise in the Proposal, (each a “Renewal Term” and collectively, the “Term”), unless either party requests termination in writing at least sixty (60) days prior to the end of the then-current term.
    2. In addition to any other remedies it may have, either Party may terminate this Agreement:
      1. Upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other Party materially breaches any of the terms or conditions of this Agreement;
      2. effective immediately, by written notice to the other party, if the other party:
        1. is dissolved or liquidated or takes any corporate action for such purpose;
        2.  becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
        3. files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
        4. makes or seeks to make a general assignment for the benefit of its creditors; or
        5. applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. 6.3    Fees are non-refundable.  Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 
  7. WARRANTIES AND DISCLAIMER

Customer represents and warrants that: a) it has obtained, where necessary, any and all consents, licenses, approvals and other authorizations necessary for the performance of its obligations under this Agreement and for Company to, if applicable, use, operate, modify or adapt any of the Customer Data for the sole purpose of providing the Services to the Customer hereunder; b) the use by Company of Customer Data to provide the Services to the Customer hereunder, to the extent that the manner of such use is specified by Customer, will not infringe the Intellectual Property Rights of any third party; and c) all Users have read, acknowledged and consented to the terms and conditions of this Agreement.

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  1. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

  1. MISCELLANEOUS
    1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  
    2. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement without consent.  
    3. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  
    4. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  
    5. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  
    6. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  
    7. This Agreement shall be governed by the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein without regard to its conflict of laws provisions.  The parties hereby attorn to the jurisdiction of the courts of the Province of Nova Scotia. 



EXHIBIT A

Service Level Terms



Support Services:


Company will provide the following technical support services to the Customer and its Users in connection with the Services:


  • Live chat via website. Responses during regular business hours EST, monitored 24 hours a day, seven days a week, 365 days a year;


  • Dedicated support @ harbr.com email. Responses during regular business hours EST, monitored 24 hours a day, seven days a week, 365 days a year;


  • Direct email with a designated account representative for emergencies. Responses within 1-hour during regular business hours EST, monitored 24 hours a day, seven days a week, 365 days a year.



Data Storage and Availability:


Company uses Amazon Web Services to host the Site and commits to providing the Customer with equivalent service levels to that which Amazon provides to Company in hosting the Site.  These service levels can be found at:


https://aws.amazon.com/dynamodb/sla/

https://aws.amazon.com/s3/sla/ 

https://aws.amazon.com/lambda/sla/ 



EXHIBIT B 


HARBR - DATA SECURITY POLICY


Harbr Inc. (the “Company”) is committed the security of data that we collect, use and disclose on behalf of our customers. This Data Security Policy describes our privacy and security practices relating to Personal Information and Confidential Information that is received by the Company or disclosed to it by a Customer, including our data backup practices. 

Definitions.  In this Data Security Policy, all capitalized terms not defined herein are as defined in the SAAS Terms and Conditions (the “SAAS Agreement”) between the Company and a Customer:

    1. “Customer” means a customer of the Company that has subscribed for Company services pursuant to a SAAS Agreement;

“Protected Information” means information that is either Personal Information or Confidential Information;

Protected Information - General.  The Company acknowledges that any Protected Information received by it from a Customer or disclosed to it by a Customer is received in trust for the sole benefit of that Customer.

Compliance with Applicable Laws. The Company will abide by, in every respect, the Personal Information Protection and Electronic Documents Act and any relevant and applicable similar legislation. 

No Secondary Use of Protected Information. The Company covenants and agrees that it will not use any Protected Information provided by or disclosed to it by a Customer for any purpose other than that for which it was provided or disclosed to the Company, as more particularly described in the SAAS Agreement between the Company and the Customer. 

No Disclosure Without Authorization. Except as is necessary to fulfill its obligations to a Customer pursuant to the SAAS Agreement between the Company and the Customer, or as required by law, the Company shall not disclose any Protected Information to any third party. 


Protection of Protected Information. The Company covenants and agrees that it will implement safeguards to protect against the disclosure or misuse of Protected Information that is in its care or custody and will promptly inform the Customer if there is any breach or suspected breach of security related to the Protected Information. The Company shall protect the Customer’s Protected Information with the same degree of care that the Company uses to protect and safeguard its own like information, but not less than the degree of care that would be exercised by a prudent person given the sensitivity and strategic value of such Protected Information.


  1. Data Backup. The Company implements a disaster recovery strategy on production data via Amazon AWS Point-in-Time recovery. PITR provides automatic backups of data, including Protected information, continuously. The Latest Restorable Date Time is typically 5 minutes before the current time and the Earliest Restorable Date Time is 35 days (5 calendar weeks). 

Cooperation. The Company shall cooperate as may be necessary to assist a Customer in any access requests, questions, complaints and any investigations related to the Protected Information it has provided to the Company. 

Retention of Personal Information. The Company shall only retain Protected Information for as long as is reasonably necessary for the purposes for which it is disclosed to the Company. Following such time, the Company shall return or destroy any Protected Information that it has received from a Customer. 

Compelled Disclosure. In the event that the Company or anyone to whom it transmits the Protected Information becomes legally required to disclose any such Protected Information, the Company shall provide the Customer with prompt notice so that the Customer may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Data Security Policy. In the event that such protective order or other remedy is not obtained, the Company shall furnish only that portion of the Protected Information which is legally required to be furnished in the opinion of the Customer or Customer’s counsel.