This Momentum Simpli Subscription Agreement (the “Agreement”) is entered into by and between Trapeze Software Group, Inc. dba. Momentum Tech (“Momentm”) and you and your company or business (“Customer”, “you”, “your” or “yourself”). This Agreement and the corresponding Simpli Order Form governs Customer’s access to and use of the Services.
1.1 From Momentm to Customer. Momentm grants to Customer, during the Term, a non-sublicensable, non-transferable, non-exclusive, terminable, limited license to use the Services, subject to the payment of Fees.
1.2 From Customer to Momentm. Customer grants to Momentm a limited, irrevocable, royalty-free, and non-exclusive license, during the Term, to reproduce, adapt, modify, translate, publicly perform, publicly display and distribute Customer Content to enable Momentm to provide and improve the Services to Customer.
2.1 To the Services. Momentm may make commercially reasonable changes to the Services and any Support Services from time to time in its sole discretion.
2.2 To the Agreement. Momentm may make commercially reasonable changes to the Agreement from time to time in its sole discretion. If Momentm makes a material change to the Agreement and this change results in a material adverse impact on Customer, Customer may terminate this Agreement prior to the start of the next subscription calendar month.
3.1 Service Restrictions.
Customer may only use the Services in accordance with the specification and usage limitations set out herein and the Documentation. Customer’s use of the Service shall not include outsourcing, renting, reselling, or sublicensing of the Service. Customer shall not and shall not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form; (b) use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service; (c) use the Service in a manner that is contrary or in violation to (i) applicable law (ii) any third party rights of privacy or intellectual property rights; or (iii) this Agreement or the Documentation; (d) publish, post, upload or otherwise transmit Customer Content that contains any viruses, trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (e) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service; or (f) use the Service to target for solicitation any Momentm customers for purposes of providing any competitive product.
3.2 Third Party Components. Any third-party component embedded, included or provided by Momentm for use with the Services may only be used in conjunction with the Services, and this use is subject to this Agreement and the Documentation. However, to the extent Services include components governed by open-source licenses with provisions inconsistent with this Agreement, those components are instead governed solely by the applicable open-source licenses.
4.1 Generally. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s Intellectual Property Rights. Intellectual Property Rights in and to the content accessed through the Services are the property of the applicable content owner and may be protected by applicable laws.
4.2 Trademarks. Customer agrees not to display or use Momentm’s trademarks, logos and service marks in any manner without Momentm’s express prior written permission. The trademarks, logos and service marks of third-party application providers are the property of such third parties. Customer is not permitted to use these marks without the prior written consent of such third party. Customer grants Momentm the right to use its name and logo as a reference for marketing or promotional purposes on Momentm’s website and in other public or private communications with existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time.
As part of the Service, Momentm will provide Customer with online user guides and online help to assist Customer in its use of the Service. Momentm may also offer optional and “for fee” training classes, professional services consultation, and customer support services. Support Services included with the Services may be updated, altered, amended or changed by Momentm at any time.
Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but in no event less than reasonable care; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates, employees and agents in violation of this Section. Confidential Information does not include information that: (a) the recipient already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party Each party may disclose the other party’s Confidential Information when required by law, but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
8.1 Term. The Initial Service Term begins on the Subscription Start Date. At the end of the Initial Service Term the Services will automatically renew for another calendar month (each a “Service Renewal Term”, and collectively with the Initial Service Term, the “Term”) at the then current rate of the Services. The Term will remain in effect until terminated by either party. If a party does not want the Services to renew, then it must provide the other party with at least thirty (30) days prior written notice to this effect. This notice of non-renewal will be effective upon the conclusion of the calendar month following the expiration of thirty (30) day notice period.
8.2 Revising Rates. Momentm may revise its rates from time to time in its sole discretion, effective for the following subscription calendar month.
8.3 Termination for Breach. Either party may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. If the Agreement is terminated for Customer’s breach, then: (i) the Term, and all other rights and licenses granted by one party to the other and the Services will cease immediately; (ii) upon request, each party will promptly return or destroy all Confidential Information of the other party; (iii) all payments owed by Customer to Momentm are immediately due; and (iv) Customer must delete any data it received from Momentm as part of receiving the Services. On the expiration of the Term or termination by Momentm, the Services will cease functioning and this Agreement will terminate.
11.1 Limitation on Indirect Liability. NEITHER PARTY, NOR ITS LICENSORS OR SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
11.2 Limitation on Amount of Liability. MOMENTM SHALL NOT BE HELD LIABLE UNDER THIS AGREEMENT FOR ANY CIRCUMSTANCES FOR MORE THAN THE AGGREGATE AMOUNT PAID BY CUSTOMER TO MOMENTM DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THIS LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM).
12.1 By Momentm. Momentm will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a claim made or brought against you by a third party alleging that the Services and/or the Documentation infringes a valid United States or Canadian intellectual property right other than a patent reading on a standard (e.g. IEEE) whether essential or not.
12.2 Exceptions. The obligations set forth in Section 12.1 do not apply if the third party claim is caused by, or results from: (a) Customer’s combination or use of the Services with software, services, or products developed by Customer or third parties, if the claim would have been avoided by the non-combined or independent use of the Services; (b) modification of the Services, or Content, by anyone other than Momentm if the third party claim would have been avoided by use of the unmodified Services; (c) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (d) Customer’s use of the Services or Content in a manner not in accordance with this Agreement or the Documentation; or (e) use of other than Momentm’s most current release of the Services if the third party claim would have been avoided by use of the most current release or revision.
12.3 Possible Infringement. If Momentm reasonably believes the Services infringes a third party’s Intellectual Property Rights, then Momentm will: (a) procure for Customer the right to continue to use the Services; (b) replace the Services; or (c) modify the Services to avoid the alleged infringement. If Momentm does not reasonably believe the options above are commercially reasonable, Momentm may terminate the license for the allegedly infringing Services and will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such Services.
12.4 General. Customer must promptly notify Momentm of the claim and cooperate with Momentm in defending the claim. The indemnification is limited to the payment by Momentm of all damages and costs finally awarded for such claim, or settlement costs approved in writing by Momentm. Momentm has full control and authority over the defense, except that: (a) any settlement requiring Customer to admit liability or to pay any money will require Customer’s prior written consent, which will not be unreasonably withheld or delayed; and (b) Customer may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE A CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY MOMENTM OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
14.1 Notices. All notices must be in writing and addressed to the attention of the other party’s Legal Department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or mail; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.
14.2 Assignment. Customer may assign or transfer any part of this Agreement without the written consent of Momentm.
14.3 Change of Control. Upon a change of Control of Customer (for example, through a stock purchase or sale, merger, or other form of corporate transaction), Customer will provide written notice to Momentm within thirty days after the change of Control.
14.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, pandemic, and Internet disturbance) that was beyond the party’s reasonable control.
14.5 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
14.6 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
14.7 Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
14.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
14.10 Governing Law. This Agreement is governed by the law of the Province of Ontario, Canada. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN THE PROVINCE OF ONTARIO. 14.11 Amendments. Any amendments to this Agreement must be in writing and expressly state that is amending this Agreement.
14.12 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.
14.14 Entire Agreement. This Agreement and the corresponding Simpli Order Form constitute the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with such party.
“Confidential Information” means information disclosed by a party to the other party under this agreement that is either marked as confidential or would normally be considered confidential under the circumstances.
“Content” means any content provided through the Services (whether created by Momentm or its third-party licensors).
“Control” means control over greater than fifty percent of the voting rights or equity interests of a party.
“Customer Content” means any content that Customer provides, including data, images, video, or software. Customer Content does not include the Content.
“Documentation“ means the Momentm proprietary Documentation in the form generally made available by Momentm to its customers for use with the Services, which may be updated by Momentm from time to time in its sole discretion.
“End Users” mean the individual human end users who use the Customer Implementation.
“Export Control Laws” means all applicable export and reexport control laws and regulations.
“Effective Date” is the date specified in the Simpli Order Form.
“Fees” means the applicable fees set forth in an Simpli Order Form and any applicable any duties, customs fees, or taxes (other than Momentm’s income tax) associated with the sale of the Services, including any related penalties or interest.
“Intellectual Property Rights” means current rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
“Initial Service Term” means the term identified on the corresponding Simpli Order Form.
“Simpli Order Form” means an order form issued by Momentm to provide the Services to Customer, subject to this Agreement. The Simpli Order Form will incorporate this Agreement
“Services” means access and use the online Simpli software.
“Subscription Start Date” is the date specified on the Order Form.
“Support Services” means the support services which may be provided by Momentm that are documented in the Documentation, which may be altered, changed, updated or amended from time to time.
“Term” means the term of the Agreement, which is comprised of the Initial Service Term and any Service Renewal Term(s) which will begin on the Subscription Start Date and continue until the Agreement is terminated as set forth in Section 8.
