Software Subscription and Services Agreement
This Software Subscription and Services Agreement (“Agreement”) is between your company (“you”) and the InMoment entity (“InMoment”) identified in the applicable Order Form. By signing the Order Form or using the Services you agree to be bound by this Agreement.
1. Services. InMoment will provide you with the services (“Services”) identified in an order form and/or statement of work (“Order Form”). Specifically, the Services may include: (i) services provided by InMoment through its online, web-based, hosted platform application including implementation, configuration, and training (“Platform Services”); and (ii) research and consulting services that InMoment provides through online, phone, email, posted mail, or in person consultations (“Research Services”).
2. Term. This Agreement is effective as long as there is a valid Order Form between you and InMoment.
3. Access and Use
a. Rights. During the term of the Order Form, you, your employees, contractors, agents, franchisees, affiliates, and other representatives (collectively, “Authorized Users”) may access the Services in accordance with this Agreement. You are responsible for compliance with this Agreement by your Authorized Users. With respect to the Platform Services, InMoment grants you a limited, non-exclusive, non-transferable, and revocable right to use, copy, reproduce, and display text, audio, visual or audiovisual materials, graphical images, or other copyrightable subject matter provided or made available by InMoment (“Proprietary Content”) solely for your internal business purposes.
b. Limitations. Except as permitted by this Agreement or applicable law, you will not: (i) modify, copy, or share Proprietary Content with third parties; (ii) reverse engineer the Services; (iii) market, distribute, sell, or resell the Services; (iv) use the Services to provide services to unauthorized third parties; (v) introduce or transmit through the Platform Services a virus, worm, trap door, back door, timer, clock, counter, or other limiting routine, instruction, or design; (vi) circumvent or disable any security or technological feature of the Services; (vii) share to any third party the results of any evaluation of the Services; or (viii) remove InMoment logos, copyright notice, trademarks, or other materials from the Services without InMoment’s prior written consent.
c. User Identifications and Passwords. InMoment may provide your Authorized Users with login credentials or other security code, method, technology, or device to access and use the Services (“Access Credentials”). You are responsible for the security and use of the Access Credentials. You will protect the Services by: (i) keeping Access Credentials secure and confidential from third parties; (ii) promptly notifying InMoment if the Access Credentials are lost, stolen, or otherwise compromised or if any other unauthorized access is detected; and (iii) using the Services only in accordance with this Agreement.
a. Your Data. “Your Data” means all: (i) data that you upload or provide to InMoment; (ii) data that InMoment gathers on your behalf as part of the Services; (iii) any reports or analysis of the data that you create using the Platform Services; and (iv) any output or work product created by InMoment as part of the Research Services. You own all intellectual property rights in Your Data.
b. Benchmarking Data. You grant InMoment a perpetual, irrevocable, royalty-free license to use Your Data to generate norms and industry benchmarks as long as it is aggregated, anonymized, and does not identify you in any way (“Benchmarking Data”).
c. InMoment Material. InMoment owns all intellectual property rights in the Services and in all derivatives or improvements thereof (“InMoment Material”). InMoment reserves all intellectual property rights not expressly granted to you in this Agreement. InMoment may use any skills or knowledge acquired while providing the Services including, without limitation, information publicly known which could be reasonably acquired performing similar work for other clients.
d. Feedback. You acknowledge that any advice or feedback that you give regarding the Services is given freely. InMoment may use your advice and feedback to improve its products and services, and you will have no proprietary right to the advice, feedback, or modified services.
e. Return or Destruction of Data and Materials. You may access and download Your Data during the term of the Order Form. You acknowledge that, except as part of InMoment’s data backup and retention policies, applicable law, or as otherwise provided in this Agreement, InMoment may store Your Data for 3 years or until the applicable Order Form is terminated, whichever comes first, after which InMoment may, in its sole discretion, delete Your Data. If InMoment still has Your Data, and you would like to access it after the term of the Order Form, then InMoment may provide access subject to InMoment’s then current fees.
5. Fees and Payment Terms
a. Fees. In exchange for the Services, you agree to pay InMoment the fees outlined in the Order Form.
b. Payment. InMoment issues all invoices electronically. Unless stated otherwise in the Order Form, you will pay the entire invoice amount within 30 days from the date you receive the invoice. Late payments will be subject to a fee of 1.5% of the unpaid balance each month or the highest rate permitted by law, whichever is less. You will reimburse InMoment for any costs or expenses incurred by InMoment to collect any past due amounts (including reasonable attorney-fees). If you require a purchase order then it is your responsibility to provide one to InMoment. Failure to do so will not relieve you of your responsibility to pay invoices on time. If you pay by credit card then InMoment may charge a processing fee of 3.75% of the total amount charged. You may reasonably dispute an invoice amount in good faith, but such dispute must be brought within 60 days from the date of the invoice. InMoment will work with you to resolve the dispute within a reasonable time period. If you do not dispute the invoice within 60 days, then you will be deemed to have accepted the invoice as correct and are be barred from bringing any future claims against InMoment regarding the accuracy of the invoice. Payments will not be subject to set-off. Failure to pay any undisputed fees when due will be a material breach of this Agreement. If you are more than 15 days late in paying undisputed fees then InMoment may suspend or terminate the Services (in whole or in part). If InMoment terminates the Order Form due to your breach of this section, then you agree to pay InMoment liquidated damages, and not as a penalty, which are equal to the remaining unpaid amounts that would be owed through the end of the term had the Order Form not been terminated prior to its normal expiration date.
c. Travel Expenses. If InMoment needs to travel to provide the Services, then you will reimburse InMoment for all reasonable travel expenses (including air and ground transportation, hotel, meals, beverages, etc.).
d. Taxes. Unless otherwise specified by InMoment in the Order Form, InMoment’s fees do not include any taxes, levies, duties or similar government assessments of any nature, including but not limited to value added, sales, use or withholding taxes assessable by any local, state, provincial, federal, or foreign jurisdictions (“Taxes”). You are responsible for paying all Taxes associated with your purchases from InMoment or use of the Services. If InMoment has a legal obligation to pay or collect Taxes for which you are responsible, then the appropriate amount may be invoiced by InMoment and paid by you. You may provide InMoment an exemption certificate acceptable to the relevant taxing authority, in which case, InMoment will not collect the Taxes covered by the certificate. For clarity, InMoment will be responsible for all other taxes or fees arising (including interest and penalties) assessable against InMoment based on its income, property, and employees. If you reasonably determine that you are obligated to deduct or withhold any Taxes from amounts payable to InMoment then you will notify InMoment immediately, and InMoment reserves the right to adjust the invoice accordingly.
a. Termination for Cause. If either party materially breaches this Agreement or an Order Form, then the non-breaching party shall send written notice of the breach to the breaching party. If the breaching party fails to cure the breach within 30 days of receiving notice (or 15 days in the case of late payment), then the non-breaching party may terminate the applicable Order Form without liability.
b. Effect of Termination. If an Order Form is terminated for any reason, then: (i) you will immediately discontinue all use of the Services; and (ii) pay InMoment any fees that have accrued prior to the effective date of the termination. InMoment’s exercise of its termination rights will not entitle you to a refund or relieve you of any obligation to pay any fees owed.
a. InMoment will provide the Services in a professional manner, consistent with industry standards.
b. InMoment represents and warrants that the Services will conform to the specifications outlined in the Order Form. If there is a defect in the Services then you may provide written notice of the defect to InMoment, and InMoment will correct the defect at no cost to you within a commercially reasonable time period.
c. InMoment will take commercially reasonable actions to screen for viruses and similar programs designed to harm the systems used by InMoment to provide the Services.
d. Each party will comply with all applicable laws, rules, and regulations (collectively, “Laws”) while performing their obligations in the Agreement and Order Form. If you provide InMoment with personally identifiable information (“Information”), you represent and warrant that you: (i) will only provide the Information necessary for InMoment to perform its obligations in this Agreement and the Order Form; (ii) obtained the Information in accordance with all applicable laws; and (iii) InMoment’s use of the Information to provide the Services, including to contact the individuals on your behalf when applicable, will not violate any Laws.
e. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, INMOMENT DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. INMOMENT DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. INMOMENT IS NOT RESPONSIBLE FOR THE RESULTS OF YOUR USE OF THE SERVICES. INMOMENT IS NOT RESPONSIBLE FOR THE FLOW OF DATA OVER THE INTERNET TO THE EXTENT THAT SUCH FLOW IS OUTSIDE INMOMENT’S CONTROL OR DEPENDS ON THE PERFORMANCE OF THE INTERNET OR NETWORK SERVICES PROVIDED OR CONTROLLED BY YOU OR THIRD PARTIES.
8. Mutual Confidentiality
a. Confidential Information. “Confidential Information” means all information that the Discloser designates as confidential, or given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered confidential. Confidential Information includes, without limitation: Your Data, InMoment Material, business or marketing methods, pricing information, financial information, clients, potential clients, products, services, designs or plans, patent applications, and trade secrets. “Discloser” means the party disclosing the Confidential Information, and “Recipient” means the party receiving the Confidential Information. Confidential Information does not include information that is: (i) publicly known without breach of this Agreement; (ii) already known by the Recipient before disclosure to the Recipient; (iii) discovered or developed independently by the Recipient without reference to the Discloser’s Confidential Information; or (iv) received from a third party without obligation of confidentiality.
b. Use. The Recipient will: (i) Only use the Discloser’s Confidential Information as necessary to perform its obligations under this Agreement; (ii) Not disclose any Confidential Information to third parties without prior written consent, except as otherwise provided in this Agreement; (iii) Protect the Confidential Information from unauthorized disclosure by using the same degree of care the Recipient uses to protect its own Confidential Information, but not less than a reasonable standard of care; (iv) Limit the disclosure of the Confidential Information to its representatives who need to know the Confidential Information in order to perform obligations under this Agreement; and (v) Advise its representatives of the proprietary nature of the Confidential Information and its obligations under this Agreement.
c. Compelled Disclosure. If the Recipient is legally compelled to disclose Confidential Information, then the Recipient will provide: (i) prompt written notice of the requirement to allow the Discloser to, at its sole cost and expense, oppose the compelled disclosure or seek other remedies; and (ii) reasonable assistance, at the Discloser’s sole cost and expense, in opposing the compelled disclosure or seeking other remedies.
d. Remedies. A breach of this Agreement could cause irreparable harm or injury to both parties. Therefore, in addition to remedies available at law and under this Agreement, each party may seek injunctive relief to prevent or remedy unauthorized disclosure of Confidential Information. Each party’s obligations regarding confidentiality will survive this Agreement for 5 years. However, if Confidential Information constitutes a trade secret under applicable law then the confidentiality obligations will survive as long as the Confidential Information remains a trade secret.
10. LIMITATION OF LIABILITY
a. EXCLUSION OF INDIRECT DAMAGES. INMOMENT WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION: COSTS OF DELAY; LOSS OF RECORDS, DATA, OR INFORMATION; LOST PROFITS, AND; THE COST OF REPLACEMENT SERVICES) EVEN IF INMOMENT HAS BEEN ADVISED, KNOW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
b. TOTAL LIMIT ON LIABILITY. EXCEPT FOR A BREACH OF CONFIDENTIALITY AND ANY INDEMNIFICATION OBLIGATIONS, INMOMENT’S LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN TORT, CONTRACT, OR OTHERWISE) WILL NOT EXCEED THE FEE(S) PAID BY YOU PURSUANT TO THE APPLICABLE ORDER FORM WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
a. By InMoment. InMoment will indemnify, defend, and hold you harmless against third-party claims: (i) arising from or related to InMoment failure to comply with the Laws; and (ii) alleging that InMoment Material infringes a third party’s intellectual property right. InMoment will pay all reasonable costs, damages, and attorney-fees. If InMoment determines that InMoment Material is likely to become the subject of an infringement claim, then InMoment may: (i) procure the right to continue to use the infringing InMoment Material; or (ii) modify or replace the InMoment Material to become non-infringing provided that such modification or replacement is substantially similar in terms of functionality as required by this Agreement or the Order Form. If neither alternative is reasonably available, then InMoment may terminate the Order Form and refund prepaid and unused fees without further liability. InMoment is not liable to the extent that the alleged infringement arises from the use or combination of the Services with unauthorized third parties, the unauthorized use of the Services or the use of the Services for a purpose or in a manner which the Services were not designed, or InMoment’s reliance on Your Data or compliance with your designs, specifications, or technical information. This section contains your sole remedy for third-party intellectual property infringement claims.
b. By You. You will indemnify, defend, and hold InMoment harmless against third-party claims: (i) arising from or related to your failure to comply with the Laws; and (ii) alleging that Your Data infringes a third party’s intellectual property right. You will pay all reasonable costs, damages, and attorney-fees.
c. Conditions to Indemnification. The party seeking indemnification will: (i) promptly notify the indemnifying party of the third party claim; (ii) allow the indemnifying party to assume complete control of the defense or settlement of the claim provided that no settlement is made without the consent of the indemnified party, such consent not to be unreasonably withheld or delayed; and (iii) reasonably cooperate in the defense or settlement. The indemnified party may participate in the defense or settlement at its own expense by seeking independent counsel.
12. Independent Contractor. InMoment is providing services as an independent contractor. Nothing in the Agreement or Order Form creates an employee/employer relationship, partnership, agency, or joint venture with you. Furthermore, there are no third-party beneficiaries.
13. Subcontracting. InMoment may use subcontractors to provide the Services. However, InMoment shall be responsible at all times for the acts and omissions of subcontractors and agents employed directly by InMoment and such subcontractors and agents shall agree to be bound by obligations of confidentiality which are at least as restrictive as those outlined in this Agreement.
14. Assignment. Neither party will not assign or transfer any rights or obligations under this Agreement or an Order Form without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed. Notwithstanding anything to the contrary, a party may assign its rights or obligations to an affiliated company, as part of a merger, or sale of substantially all of its assets provided that the assignee is not a direct competitor of the non-assigning party.
15. Notices. All notices under these Agreement or an Order Form shall be in writing and sent to the entity and address listed in the Order Form. If notice is sent to InMoment, then you must also send a copy of the notice to InMoment’s legal department at firstname.lastname@example.org.
16. Force Majeure. Except for payment of fees, neither you nor InMoment will be liable if the performance of its obligations is prevented, delayed, or made impracticable to the extent caused by force majeure events.
17. Governing Law. In all respects, without giving effect to any conflict of law rules, this Agreement and any Order Forms will be governed by the laws of the state, province, or region (as applicable) associated with the address of the InMoment entity listed in the Order Form. Similarly, any disputes arising under or relating to this Agreement or an Order Form will be subject to the exclusive jurisdiction and venue of the courts located in the same state, province, or region (as applicable) as the InMoment entity listed in the Order Form.
18. Attorney-Fees. If a dispute arises under this Agreement, then the losing party shall pay the prevailing party’s reasonable attorney-fees. A party prevails when it receives judgment in its favor for a claim.
19. Joint Review. Both you and InMoment have reviewed this Agreement. Ambiguities of intent or language should not be construed against either party.
20. Severability. If any part of this Agreement is unenforceable then it will be severed from this Agreement, and the remaining portions of the Agreement will remain effective.
21. Non-Waiver. No failure or delay by you or InMoment in exercising any rights, powers, or privileges under this Agreement operates as a waiver, nor will any partial exercise of rights, powers, or privileges preclude any additional exercise in the future.
22. Complete Agreement. This Agreement, including any Order Forms, constitutes the entire understanding between you and InMoment. It supersedes all negotiations, representations, prior discussions, oral statements, and preliminary agreements. No other document, including your own conditions of purchase, will prevail over this Agreement. Modifications to this Agreement or the Order Form must be in writing and signed by both you and InMoment. If there is a conflict between this Agreement and an Order Form, then this Agreement prevails unless the Order Form specifically identifies the conflicting provision in this Agreement and clearly states that the Order Form supersedes it.