Harvey Pence Customer Agreement

Effective Date: 02/07/2019

Welcome to Harvey Pence, the online platform that helps you grow your customer base and profitability by unlocking the value of your referral network by helping you create, improve and grow your valuable network. Please read on to learn the rules and restrictions that govern your use of our website(s) (the “Sites”), products, services and applications (the “Services”). In order to make use of the services (the “Application”) offered by us (collectively with the Application, the “Services”), you must agree to be bound by this Customer Agreement (the “Terms”) and by our Privacy Policy. If you object to anything in these Terms or the Privacy Policy, you are prohibited from using the Services.

These Terms and Privacy Policy are subject to change by us at any time, effective upon posting through the Services; by accessing the Services after any such change, you accept the Terms as modified.

These Terms of Use (the “Terms”) are a binding contract between you and Harvey Pence Pty Ltd. (“Harvey Pence,” “we” and “us”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at hello@harveypence.com, PO Box 628, Double Bay, NSW 1360, Australia.

1. License Grant & Restrictions

Harvey Pence hereby grants you a non-exclusive, non-transferable, limited, revocable, worldwide right to use the Services during the License Term, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Harvey Pence and its licensors. You may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking, reverse engineering, or other competitive purposes. You shall not:

(i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services, Harvey Pence Technology or the Harvey Pence Content in any way;

(ii) modify or make derivative works based upon the Services, Harvey Pence Technology or the Harvey Pence Content;

(iii) embed the Service as a “frame” from within another application; or

(iv) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using ideas, features, functions or graphics that are similar to those related to the Services, or (c) copy any ideas, features, functions or graphics of the Services. The Services cannot be shared or used by more than one individual unless (and solely to the extent that) the Order Confirmation allows for sharing within your internal organization.

Sharing of the Services outside your organization is never allowed. The proper assignment of username and passwords for the Services and adherence to all terms of this Agreement and Order Confirmation are your sole responsibility. You are responsible for maintaining the confidentiality of your usernames, passwords and accounts. Usernames and passwords may not be shared by more than one individual, and may not be transferred. You may use the Services only for your internal business purposes and shall not: (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein, or Harvey Pence’s sites, servers or networks; (iii) attempt to gain unauthorised access to the Services or its related systems or networks; or (iv) take any action that imposes an unreasonably or disproportionately large load on Harvey Pence’s infrastructure. Harvey Pence shall be entitled to adjust the scope of the Services and the underlying technical infrastructure to reflect the continuing development of the Services and technical advances.

2. Intellectual Property Ownership

Below details components related to our Intellectual Property:

a. Our Ownership

Harvey Pence alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Harvey Pence Technology, the Harvey Pence Content, the Services and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service, and any aggregated metrics, data and trends compiled by Harvey Pence. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the Harvey Pence Technology or the Intellectual Property Rights owned by Harvey Pence Pty Ltd. The Harvey Pence name, the Harvey Pence logo, and the product and service names associated with the Services and Harvey Pence Content are trademarks of Harvey Pence or third parties, and no right or license is granted to use them hereunder. The Sites may include trademarks, service marks or logos of third parties, all of which are the property of their respective owners. In addition, all content published on the Sites belongs to Harvey Pence and/or its licensors under applicable copyright law. You agree not to change, translate or otherwise create derivative works of the Services.

b. Using your feedback

You agree that we may use your feedback, ideas or suggestions without any restriction or obligation to you, even after this Agreement is terminated. This Section does not limit or affect any rights you may have under applicable data protection laws.

c. Training Material & Demonstration Content

We may provide information, training material, templates or other products featuring demo content, including without limitation text, photos, images, graphics, audio and video to provide you with ideas or inspiration. Unless we tell you otherwise, this content (or any portion of it) may not remain on Your Site or be distributed, publicly displayed, publicly performed or otherwise published.

3. Code of Conduct

By accessing the Services, you agree to the following code of conduct:

a. You will not publish, display or use (hereinafter “post”) any defamatory, abusive, obscene, profane, threatening, harassing, racially offensive, discriminatory or otherwise offensive or illegal material.

b. Any information contained in your profile and made accessible to other Users—including any telephone numbers, street addresses, last names, URLs, email addresses or other contact information—is posted at your own risk and we assume no responsibility for use of such information.

c. You will not use manual or automatic processes to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services or their contents. This prohibition does not include standard indexing by Internet search engines, which hereby is explicitly permitted.

d. You will not post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights.

e. You will not express or imply that any statements you make are endorsed by us without specific prior written consent.

f. You will not “stalk” or otherwise harass any User or other individual related to the Services.

g. You will notify us promptly of any User’s violation of these Terms.

h. You will treat all fellow Users with dignity and respect.

i. You will not impersonate any person or entity.

4. Use of the Services

Below details components relating to the Usage of our Services:

a. Lawful usage

You will only use the Services only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorised to use the Services. We can’t and won’t be responsible for you using the Services in a way that breaks the law. You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.

b. Information Transmission & Usage

Any information or content publicly or privately transmitted through the Services, and any referrals created using the Services, are the responsibility of the person from whom such content originated and the receiver, and they access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss suffered in connection with it.

We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. Whilst we make every endeavour to validate the Users on the Services, we can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.

c. Third Party Services

The Services may contain links or connections to third party websites or services that are not owned or controlled by Harvey Pence. When you access third party websites or use third party services, you accept that there are risks in doing so, and that Harvey Pence is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilise.

Harvey Pence has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Harvey Pence will not and cannot monitor, verify, censor or edit the content of any third-party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Harvey Pence shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you agree that Harvey Pence is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Harvey Pence, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.

d. Personal Safety.

Our Services promote sharing of personal information among Users. We do not and cannot assure that it is safe for you to have direct contact with any other individual that you come into contact with through the Services. If you believe that any individual is harassing you or is otherwise using personal information about you for unlawful purposes, we encourage you to first inform local law enforcement authorities and then to contact us at harassment@harveypence.com, so that we may take appropriate action to block further use of the Services by any individuals who may have accessed them for improper purposes.

e. Location-Based Services.

We may offer features that are based on the location of Users, a company the User represents or the Customer whom is being referred and which may report on those Users’ current locations (the “Location-Based Services”). Where the usage of Location-Based Services is applicable, you consent to collection and dissemination of your location information through the Services. Under no circumstances shall we be liable for claims or for any damages therefrom, arising out of your informed decision to disseminate your location information together with your profile information through the Services.

f. Privacy

By using the Services, you confirm that you have read and understood our Privacy Policy. However, it is not a contractual document and does not form part of this Agreement and we may change it from time to time.

You Must Comply with Data Protection, Security and Privacy Laws. You agree and warrant that you are solely responsible when using the Services for complying with applicable data protection, security and privacy laws and regulations (including, where applicable, the EU General Data Protection Regulation and the EU e-Privacy Directive/Regulation), including any notice and consent requirements. This includes without limitation the collection and processing by you of any personal data, when you use the Services.

You agree that we may protect and improve our Services through analysis of your use of the Services and/or analysis of any information you enter into our Service in an anonymised, pseudonymised, de-personalised and/or aggregated form.

g. Disclaimers of Responsibility for User Actions.

Opinions, votes, advice, statements, offers, or other information or content made available through the Services are those of their respective authors and should not necessarily be relied upon. No Reliance on Content. Such authors are solely responsible for such content. We do not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Services or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Services. Under no circumstances will we or our affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted through the Services or transmitted to or by any Users.

h. Assignment

You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Harvey Pence’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

i. Matching

From time to time, we may match you with businesses that request our help to find other local businesses with services that match those requested. We may also proactively match you with business who we think may benefit you or your customers. When we match you, all details will be shared using the Harvey Pence Platform.

5. Billing & Commission Policies

a. Summary

The following describes the general payment terms agreement upon:

i. For paying users, the service is billed in advance on a monthly basis based on the “start date” of a subscription and is non-refundable.

ii. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account unless otherwise agreed to in writing,

iii. Service fees are charged in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable.

iv. The initial charges at Sign up will be equal to the current list price of the chosen edition of the Service Plan selected plus any add-ons selected and or discounts applied.

v. Subsequent monthly payments may have Add-on services or usage charges applied which are described in your monthly online billing statement.

vi. All fees are inclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.

vii. Cancellation of a paid Subscription must be made within 7 days of your billing date in order to stop payment for the next month of service.

viii. Unless agreed upon in writing in advance, Harvey Pence reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail.

b. Sign Up

You must provide Harvey Pence with a valid credit card as a condition to completing the sign up for the Services. You hereby represent that you are authorised to provide any credit card you use to sign up for the Service. You agree to provide Harvey Pence with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorised billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Harvey Pence reserves the right to terminate your access to the Service in addition to any other legal remedies. All invoices and payments to Harvey Pence will be in Australia Dollars. If you believe your invoice is incorrect, you must contact Harvey Pence in writing within 45 days of the date of the invoice setting forth details regarding the inaccuracy to be eligible to receive an adjustment or credit.

c. Fees

You can access certain portions of the Services by submitting a fee payment (such additional services, “Paid Services”). Paid Services will remain in effect until cancelled or terminated in accordance with this Agreement. We’ll tell you about fees for Paid Services before charging you. You may cancel Paid Services at any time via the Services. If you don't pay for Paid Services on time, we reserve the right to suspend or cancel your access to the Paid Services. Transaction fees and additional fees may also apply to certain portions of the Services, and we’ll tell you about those fees before charging you. Our fees will appear on an invoice that we provide via the Services. Please note that different Paid Services have different fees and payment schedules, and cancelling one Paid Service may not cancel all your Paid Services.

d. Taxes

All fees are inclusive of applicable national, provincial, state, local or other taxes (“Taxes”), unless explicitly stated otherwise. You're responsible for all applicable Taxes, and we'll charge Taxes in addition to the fees for the Services when required to do so. If you're exempt from Taxes, you must provide us with valid tax exemption documentation. We reserve the right to determine if the documentation provided is valid. Tax exemption will, provided we’re satisfied it’s valid and applicable, only apply from and after the date we receive such documentation. If Harvey Pence has a legal obligation to pay or collect indirect Taxes (such as goods and services tax or value-added tax) on the sale to you under the laws of your country (where you are established, have a permanent address or usually reside), you shall be liable for payment of any such indirect Taxes. Where Harvey Pence does not have a legal obligation to pay or collect indirect Taxes on a sale of Paid Services to you, you may be required to self-assess those Taxes under the applicable laws of your country (where you are established, have a permanent address or usually reside).

e. Automatic Subscription Renewals.

We'll automatically bill you for certain Paid Services from the date you submit your initial payment and on each renewal period afterwards until cancellation. Your renewal period will be equal in time to the renewal period of your current subscription. For example, if you're on a monthly subscription plan, each billable renewal period will be for one (1) month. We’ll automatically charge you the applicable amount using the payment method you have on file with us. We’ll let you know in advance if you’re purchasing a Paid Service that includes auto-renewal payments. You can disable auto-renewal at any time via the Services.

f. Refunds

You won't be issued a refund except in our sole discretion, or if legally required. We offer a free trial so you can try out your website subscription. Please note applicable statutory rights of cancellation may not result in a refund, as we do not charge for this trial period.

g. Fee Changes

We may change our fees at any time. We’ll provide you with advance notice of these fee changes via the Services. New fees will not apply retroactively. If you don't agree with the fee changes, you have the right to reject the change by cancelling the applicable Paid Service before your next payment date.

h. Chargebacks

If you contact your credit card company or bank to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate your Account. If you have questions about a payment made to us, we encourage you to contact us before filing a Chargeback. We reserve our right to dispute any Chargeback.

i. Our Payment Processor.

We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor, in addition to this Agreement. Our current Payment Processor is Stripe, and your payments are processed by Stripe in accordance with Stripe’s terms of service and privacy policy. You agree to pay us, through the Payment Processor, all charges at the prices then in effect for any purchase in accordance with the applicable payment terms. You agree to make payment using the payment method you provide with your Account. We reserve the right to correct, or to instruct our Payment Processor to correct, any errors or mistakes, even if payment has already been requested or received.

j. Non-Payment and Suspension

In addition to any other rights granted to Harvey Pence herein, Harvey Pence reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). You will continue to be charged for the Service during any period of suspension. If you or Harvey Pence initiates termination of this Agreement, you will be obligated to pay the balance due on your account for the applicable Initial Term or Renewal Term, as the case may be, computed in accordance with the Charges and Payment of Fees section above. You agree that Harvey Pence may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. Harvey Pence reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Harvey Pence has no obligation to retain Customer Data or Customer Content and that such Customer Data and Customer Content may be irretrievably deleted if your account is 30 days or more delinquent.

k. Termination for Cause

Any breach of your payment or other material obligations or unauthorised use of the Harvey Pence Technology or Services will be deemed a material breach of this Agreement. Without limiting its ability to pursue other remedies, Harvey Pence, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement.

l. Commission

Harvey Pence may earn upfront and ongoing commission for facilitating the referrals to a vendor to which you do not have a commission agreement with. Commission will only be paid in the event that the customer need has been successfully fulfilled. Each User of this platform reserves the right to have their own commission agreement in place, however this must be explicitly stipulated to Harvey Pence at the time of either adding the Referral Partner or at the time of payment of the commission in writing to commission@harveypence.com.

6. Our Rights

a. Warranty Disclaimer

Services provided by Harvey Pence are on an “as-is” basis. Each party represents and warrants that it has the legal power and authority to enter into these Terms. Neither Harvey Pence nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services.

b. Modifications

We will always post the most current version of the Terms on our site, however we may modify this Agreement from time to time. If a modification meaningfully reduces your rights, we’ll notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate a reasonable period after which the new terms will take effect. Modifications will never apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement and price changes. If you disagree with our changes, then you should stop using the Services and cancel all Paid Services.

c. Ownership Disputes

Sometimes, ownership of an Account is disputed between parties, such as a business and its employee. We try not to get involved in these disputes. However, we reserve the right, at any time and in our sole discretion, and without notice to you, to determine rightful Account ownership and to transfer an Account to such owner. Our decision in that respect is final. If we feel that we can’t reasonably determine the rightful owner, we reserve the right to suspend an Account until the disputing parties reach a resolution. We also may request documentation, such as a government-issued photo ID, credit card invoice or business license, to help determine the rightful owner.

d. Limitation of Liability.

To the fullest extent allowed by applicable law, under no circumstances and under no legal theory (including, without limitation, tort, contract, strict liability, or otherwise) shall Harvey Pence (or its licensors or suppliers) be liable to you or to any other person for (A) any indirect, special, incidental, or consequential damages of any kind, including damages for lost profits, loss of goodwill, work stoppage, accuracy of results, or computer failure or malfunction, or (B) any amount, in the aggregate, in excess of the greater of (I) $20 or (II) the amounts paid by you to Harvey Pence in connection with the Services in the twelve (12) month period preceding this applicable Claim, or (C) any matter beyond our reasonable control.

e. Exceptions

Under certain circumstances, some jurisdictions don't permit the disclaimers in Section 6.d, so they may not apply to you. However, the disclaimers apply to the maximum extent permitted by applicable law. You may have other statutory rights and nothing in this Agreement affects your statutory rights or rights under mandatory laws. The duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by applicable law.

f. Indemnity

To the fullest extent permitted by law, you agree to indemnify and hold harmless Harvey Pence and its affiliates and its and their directors, officers, employees and agents from and against all damages, losses, liabilities, costs, claims, demands, fines, awards and expenses of any kind (including without limitation reasonable legal fees and costs) arising out of or related to: (a) your breach of this Agreement; (b) your User Content and Your Sites; (c) any claims by, on behalf of or against your End Users; (d) your violation of any law or regulation or the rights or good name of any third party; and (e) any claims from tax authorities in any country in relation to Your eCommerce operations, including without limitation your sales to individual consumers (including distance sales) and other operations for which Harvey Pence may be held jointly and severally liable. Your indemnification obligations under this Section shall not apply to the extent directly caused by our breach of this Agreement or, where you are an EU Consumer, to the extent that the consequences were not reasonably foreseeable.

7. Dispute Resolution

a. Informal Resolution

Before filing a claim against Harvey Pence, you agree to try to resolve the dispute by first emailing info@harveypence.com with a description of your claim. We'll try to resolve the dispute informally by following up via email, phone or other methods. If we can’t resolve the dispute within thirty (30) days of our receipt of your first email, you or Harvey Pence may then bring a formal proceeding.

b. Governing Law

These Terms shall be governed and construed in accordance with the laws of New South Wales, Australia, without regard to its conflict of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state courts located in New South Wales. No text or information set forth on any other purchase order, pre-printed form or document (other than an Order Confirmation, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Harvey Pence as a result of this Agreement or use of the Service.

The failure of Harvey Pence to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Harvey Pence in writing. This Agreement, together with any applicable Order Confirmation, comprises the entire agreement between you and Harvey Pence and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. In the event that any of your Users are contractors to your organization, you agree that such contractors shall be required by written agreement to comply with all applicable restrictions set forth in this Agreement, and you shall be fully liable for and indemnify Harvey Pence with respect to any failure of any contractor to so comply.

8. Events Beyond Our Control

We are not in breach of this Agreement or liable to you if there is any total or partial failure of performance of the Services resulting from any act, circumstance, event or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, terrorism, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.

9. Translation

This Agreement was originally written in English. We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control except where prohibited by applicable law.

10. Miscellaneous.

If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Harvey Pence agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Harvey Pence, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Harvey Pence, and you do not have any authority of any kind to bind Harvey Pence in any respect whatsoever. You and Harvey Pence agree there are no third-party beneficiaries intended under these Terms.

If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at hello@harveypence.com or by mail: PO Box 628, Double Bay, NSW 1360, Australia.