Contrat de services en vigueur

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DERNIÈRE MISE À JOUR : 1^er juillet 2021

“Affiliate” means any entity which directly or indirectly controls, is controlled by or is under common control with an entity. “Control” for purposes of the preceding sentence means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Control” for purposes of the preceding sentence means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Article 28” means article 28 of the General Data Protection Regulation (Regulation (EU) 2016/679).

“Customer” or “you” means the customer accepting this Agreement and identified on the cover page of this Agreement.

“Customer Data” means all data (including Personal Data and End User data) that is provided to Momentive by, or on behalf of, Customer through Customer’s use of the Services, and any data that third parties submit to Customer through the Services.

“Data Protection Impact Assessment” means a data protection impact assessment as referred to in article 35 of the General Data Protection Regulation (Regulation (EU) 2016/679).

“Data Protection Legislation” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area, and their member states and the United Kingdom, (including but not limited to the Data Protection Acts 1988 to 2018, the General Data Protection Regulation (Regulation (EU) 2016/679), the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, and the ePrivacy Directive 2002/58/EC), as well as all U.S. laws and regulations that apply to a Business or Service Provider, including but not limited to the California Consumer Privacy Act of 2018 (Cal. Civ. Code §§ 1798.100 - 1798.199), as applicable to the processing of Personal Data under the Agreement. 

“End Users” means Customer’s employees, agents, independent contractors, and other individuals authorized by Customer to access and use the Services.

“Intellectual Property Rights” means current and future worldwide rights under patent, copyright, design rights, trademark, trade secrets, domain names and other similar rights, whether registered or unregistered.

“Momentive” means the Momentive entity defined in Section 14 (Momentive Contracting Entity).

“Order Form” means an order form, sales order, sales quote, or similar document referencing and made under this Agreement and signed by the parties.

“Personal Data” means information relating to a living individual who is, or can be, reasonably identified from information, either alone or in conjunction with other information (a "Data Subject"), within Customer’s control and which is stored, collected or processed within one of Customer’s Momentive End User accounts.

“Services” means the products and services offered by Momentive and ordered by Customer on an Order Form.

“SSTs” means service-specific terms that apply to specific Services located here and that are incorporated into and form a part of this Agreement.

“Standard Contractual Clauses” means the “Standard Contractual Clauses” annexed to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (as amended or replaced by the European Commission from time to time).

2.1 Provision of Services. Momentive will provide the Services to Customer in accordance with this Agreement, including any Order Forms and any applicable SSTs.

2.2 Order Forms. The parties may enter into Order Forms under this Agreement.  Customer’s Affiliates may enter into Order Forms under this Agreement.  Any such Order Form may be signed by Momentive or  a Momentive Affiliate pursuant to the requirements under Section 14. Any reference in the Agreement to “Customer” will refer to the Customer entity signing the Order Form and any reference in the Agreement to “Momentive” will refer to the Momentive contracting entity signing the Order Form. Each Order Form will incorporate the terms and conditions of this Agreement and will be a separate contract between the entities entering into the Order Form.

2.3 Third-Party Services. If Customer integrates the Services with any non-Momentive-provided third-party service (such as a third party’s service that uses an application programming interface (API)), Customer acknowledges that such third-party service might access or use Customer Data and Customer permits the third-party service provider to access Customer Data as required for the interoperation of that third-party service with the Services. Customer is solely responsible for the use of such third-party services and any data loss or other losses it may suffer as a result of using any such services.

3.1 License and Term.

(a) License. Subject to the terms and conditions of this Agreement, Momentive grants Customer a non-exclusive, non-transferable worldwide right to access and use the Services during the subscription term.

(b) Subscription Term. The initial term of each subscription is specified on the Order Form. Subscriptions will automatically renew at the end of each subscription term for additional periods equal to one year, unless either party gives the other written notice of non-renewal at least 30 days before the end of the then-current subscription term.

(c) Subscription Units Added Mid-subscription. An Order Form may be used to add more subscription units (e.g. seats or packages) to a subscription during a subscription term. The per unit pricing for those additional subscription units will be as specified on the Order Form of the underlying subscription (or, absent such specification, at the same per unit pricing as the underlying subscription pricing), prorated for the portion of that subscription term remaining at the time the subscription units are added. Any such additional subscription units will renew or terminate on the same date as the underlying subscription. Subscription units relating to a Service cannot be decreased during a subscription term for that Service.

4.1 Changes to Services. Momentive continually changes and improves the Services. Momentive will provide Customer with prior written notice if Momentive makes a change to the Service(s) resulting in a material decrease in core functionality used by Momentive’s general customer base. In such event, the parties agree to work together to minimize the impact of such change to Customer.

5.1 Fees. Customer will pay to Momentive all applicable fees for the Services specified in each Order Form. Except as otherwise specified in this Agreement or prohibited by applicable law, payment obligations are non-cancelable, and fees paid are not refundable.

5.2 Invoicing and Payment Terms. Payment terms shall be specified in each Order Form. An invoice will be issued upon execution of the Order Form. Multi-year orders and renewals will be invoiced on an annual basis.

5.3 Taxes. All amounts payable by Customer under this Agreement are exclusive of any applicable taxes, levies, duties, or similar governmental assessments of any nature (including value-added, sales, and use  taxes, but excluding withholding taxes and taxes based on Momentive’s income, property, or employees) (“Taxes”) that may arise in connection with Customer’s purchases under this Agreement. If any such Taxes arise, Customer will pay such Taxes in addition to all other amounts payable under this Agreement, unless Customer provides Momentive with a valid tax exemption certificate or other documentary proof, issued by an appropriate taxing authority, that no tax should be charged. If Customer is required by law to withhold any Taxes from its payments to Momentive, Customer must provide Momentive with an official tax receipt or other appropriate documentation to support such payments.

5.4 Currency. All monetary amounts in this Agreement are denominated in the currency stated on the Order Form. Fee payments by Customer must be received by Momentive in the same currency as such fees were billed.

5.5 Overdue Fees. Momentive may charge Customer interest on overdue fees (excluding amounts disputed reasonably and in good faith) at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue. If any good faith, undisputed amount owed by Customer is overdue by thirty (30) days or more, Momentive may limit functionality or suspend provision of Services to Customer until such amounts are paid in full.

5.6 Overage Fees.  During the subscription term, Momentive may review the number of seats and/or responses utilized and discuss with the Customer options for purchasing additional units. Customer agrees to pay for either: (i) the additional seat units which will be at the per unit pricing as specified on the Order Form for the underlying subscription (or, absent such specification, at the same per unit pricing as the underlying subscription pricing), prorated for the portion of that subscription term remaining at the time the seat units are added, or (ii) the additional response bundles applicable based on usage.

6.1 Customer Responsibilities.

(a) Account Security.  Customer is responsible for maintaining the confidentiality of its own passwords and any other credentials used by it and its End Users to access the Services.  Customer will use commercially reasonable efforts to prevent unauthorized use of the Services and will terminate any unauthorized use of which it becomes aware. Customer will notify Momentive promptly if Customer becomes aware of any unauthorized access to its accounts.

(b) End User Activities. Customer is responsible for ensuring that its End Users comply with this Agreement. Customer is responsible for the acts of its End Users and any activity occurring in its End User accounts (other than activity that Momentive is directly responsible for which is not performed in accordance with Customer’s instructions).

(c) One Individual per Account.  End User accounts and passwords may not be shared and may only be used by one individual per account.

6.2 Acceptable Uses by Customer. Customer agrees to comply with the Acceptable Uses Policy located here.

6.3 Third Party Requests. The parties may from time to time receive a request from a third party for records related to Customer’s use of the Services, including information in a Customer End User account or identifying information about a Customer End User, excluding Data Subject access requests as provided for under the GDPR (“Third Party Request”).  Third Party Requests include search warrants, subpoenas, and other forms of legal process.

Customer is responsible for responding to Third Party Requests via its own access to the information, and will only contact Momentive if Customer is unable to obtain such information after diligent efforts. If Momentive receives a valid Third Party Request then, to the extent permitted by law, Momentive:

(a) may inform the third party issuing such request that it should pursue the request directly with Customer; and

(b) will: (i) promptly notify Customer of the Third Party Request; (ii) cooperate, at Customer’s expense, with Customer’s reasonable requests regarding Customer’s efforts to oppose a Third Party Request; and (iii) after providing Customer with an opportunity to respond to or oppose the Third Party Request, Momentive may fulfill that request if Momentive determines that it is required or permitted by law to do so.

6.4 Embargoes. Customer represents and warrants that it is not barred by any applicable laws from being supplied with the Services. The Services may not be used in any country that is subject to an embargo by the United States or European Union applicable to the Services. Customer will ensure that: (a) its End Users do not use the Services in violation of any export restriction or embargo by the United States; and (b) it does not provide access to the Services to persons on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals.

6.5 Suspension of Services. Momentive may limit or suspend the Services from time to time to perform scheduled maintenance or to stop a violation of Section 6.2 (Acceptable Uses by Customer), to prevent material harm to Momentive or its customers or as required by applicable law. Momentive will use reasonable endeavors to give Customer reasonable advance notice of any limitation or suspension so that Customer can plan around it or address the issue that has prompted Momentive to take such action.  There may be some situations, such as security emergencies, where it is not practicable for Momentive to give such advance notice.  Momentive will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as is needed to resolve the issue that prompted such action.

7.1 Security. Momentive has, considering the state of the art, cost of implementation, the nature, scope, context and purposes of the Services, and the level of risk, implemented appropriate technical and organizational measures to enable a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to Customer Data. At reasonable intervals, Momentive tests and evaluates the effectiveness of these technical and organizational measures for enabling the security of the processing.

7.2 Data Protection. Where Momentive is processing Personal Data for Customer, Momentive will:

(a) only do so on documented Customer instructions and in accordance with applicable law, including with regard to transfers of Personal Data to other jurisdictions or an international organization, and the parties agree that this Agreement constitutes such documented instructions of the Customer to Momentive to process Customer Data;

(b) to the extent applicable, for data transfers from the European Economic Area (EEA) and the United Kingdom to outside the EEA and the United Kingdom, Momentive Europe UC relies upon: (i) the European Commission’s Standard Contractual Clauses and/or consent for personal data transfers to countries outside the EEA that do not have adequate levels of data protection as determined by the European Commission;

(c) with respect to any transfers of Personal Data out of the EEA and the United Kingdom that may be required in relation to or in connection with the Agreement and the provision of the Services hereunder, the parties shall comply with and be subject to all obligations imposed on a ‘data importer’ or 'data exporter' (as appropriate) as set out under the Standard Contractual Clauses;

(d) ensure that all Momentive personnel involved in the processing of Personal Data are subject to confidentiality obligations in respect of the Personal Data;

(e) make available information necessary for Customer to demonstrate compliance with its Article 28 obligations (if applicable to the Customer) where such information is held by Momentive and is not otherwise available to Customer through its account and user areas or on Momentive websites, provided that Customer provides Momentive with at least 14 days' written notice of such an information request;

(f) cooperate as reasonably requested by Customer to enable Customer to comply with any exercise of rights by a Data Subject afforded to Data Subjects by Data Protection Legislation in respect of Personal Data processed by Momentive in providing the Services;

(g) provide reasonable assistance with all requests received directly from a Data Subject in respect of that Data Subject's Personal Data submitted through the Services;

(h) cooperate with the Office of the Data Protection Commissioner or any replacement or successor body from time to time (or, to the extent required by the Customer, any other data protection or privacy regulator) in the performance of such regulator's tasks where required by Data Protection Legislation;

(i) not store Personal Data (in a format that permits identification of relevant Data Subjects) for longer than is necessary for the purposes for which the data is processed save to the extent such retention is required for legitimate business purposes (with respect to, for example, security and billing), in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes;

(j) where required by Data Protection Legislation, inform Customer if it comes to Momentive’s attention that any instructions received from Customer infringe the provisions of Data Protection Legislation, provided that notwithstanding the foregoing, Momentive shall have no obligation to review the lawfulness of any instruction received from the Customer; and

(k) assist Customer as reasonably required where Customer conducts a Data Protection Impact Assessment involving the Services.

7.3 Sub-processing. Customer provides a general authorization to Momentive to engage onward sub-processors, subject to compliance with the requirements in this Section 7.

7.4 Sub-processor List. Momentive will, subject to any confidentiality provisions under this Agreement or otherwise imposed by Momentive:

(a) make available to Customer a list of the Momentive sub-processors (“Sub-processors”) who are involved in processing or sub-processing Personal Data in connection with the provision of the Services, together with a description of the nature of services provided by each Sub-processor (“Sub-processor List”). A copy of this Sub-processor List may be accessed at https://www.surveymonkey.com/mp/legal/subprocessor-list/?ut_source=legal&ut_source2=general&ut_source3=inline.

(b) ensure that all Sub-processors on the Sub-processor List are bound by contractual terms that are in all material respects no less onerous than those contained in this Agreement; and

(c) be liable for the acts and omissions of its Sub-processors to the same extent Momentive would be liable if performing the services of each of those Sub-processors directly under the terms of this Agreement, except as otherwise set forth in this Agreement.

7.5 New / Replacement Sub-processors. Momentive will provide Customer with written notice of the addition of any new Sub-processor or replacement of an existing Sub-processor at any time during the term of the Agreement (“New Sub-processor Notice”), Customer agrees to  sign up to the mailing list at https://smprivacy.wufoo.com/forms/q1khls351392il3/ through which such notices will be delivered by Momentive. If Customer has a reasonable basis to object to Momentive’s use of a new or replacement Sub-processor, Customer will notify Momentive promptly in writing and in any event within 30 days after receipt of a New Sub-processor Notice. In the event of such reasonable objection, either Customer or Momentive may terminate the portion of any Agreement relating to the Services that cannot be reasonably provided without the objected-to new Sub-processor (which may involve termination of the entire Agreement) with immediate effect by providing written notice to the other party.

7.6 Security Incident. If Momentive becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, Personal Data (“Security Incident”), Momentive will promptly, and in any event, as soon as reasonably practicable, notify Customer without undue delay.  Such notification shall not be interpreted or construed as an admission of fault or liability by Momentive.  Momentive will also reasonably cooperate with Customer with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any information reasonably requested by Customer in relation to any Security Incident.

7.7 Audits. Customer will provide Momentive with at least one month’s prior written notice of any audit, which may be conducted by Customer or an independent auditor appointed by Customer (provided that no person conducting the audit shall be, or shall act on behalf of, a competitor of Momentive) (“Auditor”). The scope of an audit will be as follows:

(a) Customer will only be entitled to conduct an audit once per year (during the course of a 12 month subscription) unless otherwise legally compelled or required by a regulator with established authority over the Customer to perform or facilitate the performance of more than 1 audit in that same year.

(b) Momentive agrees, subject to any appropriate and reasonable confidentiality restrictions, to provide evidence of any certifications and compliance standards it maintains and will, on request, make available to Customer an executive summary of Momentive’s most recent annual penetration tests, which summary shall include remedial actions taken by Momentive resulting from such penetration tests.

(c) The scope of an audit will be limited to Momentive systems, processes, and documentation relevant to the processing and protection of Personal Data, and Auditors will conduct audits subject to any appropriate and reasonable confidentiality restrictions requested by Momentive.

(d) Customer will promptly notify and provide Momentive with full details regarding any perceived non-compliance or security concerns discovered during the course of an audit.

The parties agree that, except as otherwise required by order or other binding decree of a regulator with authority over the Customer, this Section 7.7 sets out the entire scope of the Customer’s audit rights as against Momentive.

7.8 Customer Privacy Obligations. Customer shall ensure and hereby warrants and represents that it is entitled to transfer the Customer Data to Momentive so that Momentive may on behalf of Customer, lawfully process and transfer the Personal Data in accordance with this Agreement.  Customer shall ensure that relevant Data Subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.

7.9 Types Data Processing.   The parties agree that the purpose and nature of the processing of Personal Data, the types of Personal Data and categories of Data Subjects are as set out in Appendix A.

8.1 Customer IP. As between the parties, the Customer retains ownership of all Intellectual Property Rights in the Customer Data. This Agreement does not grant Momentive any licenses or rights to the Customer Data except for the following:

(a) Customer grants Momentive and its affiliates a worldwide, royalty-free, non-exclusive, limited license to use, host, copy, transmit, modify, display, and distribute Customer Data only for the limited purposes of providing the Services to Customer and improving the Services.

(b) If Customer provides Momentive with feedback about the Services, Momentive may use that feedback and incorporate it into its products and services without any obligation to Customer.

8.2 Momentive IP.  As between the parties, Momentive retains ownership of the Services and all related Intellectual Property Rights. No licenses or rights are granted to Customer by Momentive other than as expressly provided for in this Agreement. Except as permitted by Momentive’s brand and trademark use policies, this Agreement does not grant the Customer any right to use Momentive’s trademarks or other brand elements.

8.3 Publicity.  Momentive may identify Customer by name and logo as a Momentive customer on Momentive’s website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.

9.1 Definition. “Confidential Information” means information disclosed by a party (“Discloser”) to the other party (“Recipient”) in connection with the use or provision of the Services that is either marked as confidential or would reasonably be considered as confidential under the circumstances.  Customer’s Confidential Information includes Customer Data.  Momentive’s Confidential Information includes the terms of this Agreement and any security information about the Services.  Despite the foregoing, Confidential Information does not include information that: (a) is or becomes public through no fault of the Recipient; (b) the Recipient already lawfully knew; (c) was rightfully given to the Recipient by an unaffiliated third party without restriction on disclosure; or (d) was independently developed by the Recipient without reference to the Discloser’s Confidential Information.

9.2 Confidentiality. The Recipient will: (a) protect the Discloser’s Confidential Information using commercially reasonable efforts; (b) use the Discloser’s Confidential Information only as permitted by this Agreement, including to exercise the Recipient’s rights and fulfill the Recipient’s obligations under this Agreement; and (c) not disclose the Discloser’s Confidential Information without the Discloser’s prior consent, except to affiliates, contractors, agents, and professional advisors who need to know it and have agreed in writing (or, in the case of professional advisors, are otherwise bound) to keep it confidential on terms comparable to those under this Section.  The Recipient may disclose the Discloser’s Confidential Information when and to the extent required by law or legal process, but only after the Recipient, if permitted by law, uses reasonable efforts to notify the other party.

9.3 Return or Destruction of Confidential Information.  Upon the termination or expiration of the Agreement and all Order Forms under the Agreement, each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control within a reasonable amount of time in accordance with the Recipient’s data destruction practices. Despite the termination or expiration of this Agreement, Recipient’s confidentiality obligations with respect to the Confidential Information will survive for two (2) years after the date such Confidential Information was disclosed to Recipient (except with respect to any trade secrets identified by Discloser as such at the time of disclosure, where such confidentiality obligations will continue for as long as the information remains a trade secret).

10.1 Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into this Agreement; and (b) it will comply with all laws and regulations applicable to its provision or use of the Services.

10.2 Disclaimers. MOMENTIVE MAKES NO REPRESENTATION OR WARRANTY ABOUT THE SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, MOMENTIVE DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

11.1 By Momentive. If a third party claims that the Services Momentive provides to you infringe or misappropriate that party's Intellectual Property Rights, Momentive will defend you against that claim at its expense and pay all costs, damages and attorney's fees that a court finally awards or that are included in a settlement approved by Momentive.  However, in no event will Momentive have any obligation or liability under this Section arising from: (a) use of any Services in a modified form or in combination with software, technologies, products, or devices not provided by Momentive or intended as part of the use of the Services; or (b) any content or data provided by Customer, End Users, or third parties;  or (c) Services for which there is no fee or charge.

11.2 By Customer. If a third party claims that Customer Data infringes or misappropriates that third party’s Intellectual Property Rights or if Customer’s use of the Services violates the Momentive Acceptable Uses Policy, Customer will defend Momentive against that claim or investigation at Customer’s expense and pay all costs, damages and attorney's fees that a court finally awards or that are included in a settlement approved by Customer.

11.3 Potential Infringement.  If Momentive believes the technology used to provide the Services may infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Momentive may: (a) obtain the right for Customer, at Momentive’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. If Momentive does not believe that the foregoing options are commercially reasonable, then Momentive may suspend or terminate Customer’s use of the impacted Services and provide a pro rata refund of any fees prepaid by Customer applicable to the period following the termination of such Services.

11.4 Indemnity Procedures. A party seeking indemnification will promptly notify the other party of the claim and reasonably cooperate with the other party (to the extent applicable) in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability, perform any act or to pay any money will require that indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed) and (b) the indemnified party may join in the defense with its own counsel at its own expense. The provisions of this Section 11 state each party’s entire liability and constitute the other party’s sole and exclusive financial remedy for any indemnification claims.  Notwithstanding the foregoing, nothing in this Agreement will prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

12.1 Consequential Damages Waiver. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT  WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR: (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, UNDER ANY THEORY OF LAW, INCLUDING TORT OR (B) LOSS OF OR DAMAGE TO: (i) DATA, (ii) BUSINESS, (iii) REVENUES, OR (iv) PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12.2 Liability Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,  EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS OF ANY KIND WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO MOMENTIVE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY (“GENERAL CAP”). NOTWITHSTANDING THE FOREGOING, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS RELATED TO A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 7 (“SECURITY AND PRIVACY”) AND SECTION 9 ("CONFIDENTIALITY") ABOVE SHALL NOT EXCEED TWO (2) TIMES THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY (“ENHANCED CAP”). 

12.3 Excluded Claims. SECTIONS 12.1 AND 12.2 SHALL NOT APPLY TO CLAIMS RELATED TO: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS, (B) FRAUD OR WILFUL MISCONDUCT, (C) DEATH OR PERSONAL INJURY, OR (D) CUSTOMER’S OBLIGATION TO PAY ANY UNDISPUTED FEES OR INVOICES.

13.1 Term of Agreement.  The term of this Agreement starts on the Effective Date and shall remain in effect until either party terminates upon 30 days’ written notice to the other party.

13.2 Termination for Cause.  A party may terminate this Agreement (including all related Order Forms):

(a) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or

(b) if the other party ceases its business operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, administration, liquidation, or assignment for the benefit of creditors.

13.3 Consequences of Termination of Agreement. If this Agreement terminates, any Order Forms in effect will remain in effect in accordance with their terms (including the terms of this Agreement that are incorporated by reference), but no new Order Forms may be entered into under this Agreement.

13.4 Consequences of Termination of Order Form.

(a) If an Order Form is terminated by Customer due to Momentive’s material breach, Momentive will provide Customer with a pro rata refund of any fees prepaid by Customer applicable to the period following the effective date of termination of that Order Form.

(b) If an Order Form is terminated by Momentive due to Customer’s material breach, Customer will remain liable to pay the full subscription fee outstanding on the effective date of termination of that Order Form. Momentive will invoice, and Customer will pay, any accrued but unbilled fees and any unpaid fees covering the remainder of the term of that Order Form had it not been terminated.

(c) If an Order Form is terminated for convenience by Customer, Customer will remain liable to pay the full subscription fee outstanding on the effective date of termination of that Order Form. Momentive will invoice, and Customer will pay, any unbilled fees and any unpaid fees covering the remainder of the term of that Order Form had it not been terminated.

13.5 Survival. The following Sections will survive any expiration or termination of this Agreement: 5 and 9 to 15.

14.1 Momentive Contracting Entity Table. In the table below, “Customer Location” refers to where Customer is located (as determined by Customer’s business address on the Order Form, if specified) and determines which table row applies to Customer:

(a) Contracting Entity. References to “Momentive” are references to the applicable Contracting Entity specified in Momentive Contracting Entity Table. The Services are provided by that contracting entity.

(b) Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the applicable governing law above, without giving effect to any of its conflicts of laws rules or principles.  The courts located in the applicable venue above will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation, or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts.

15.1 Amendments. This Agreement may only be amended if authorized representatives of each party agree in a signed writing.

15.2 Assignment. This Agreement may not be assigned or otherwise transferred by either party in whole or in part without the express prior written consent of the other party; provided, however, that the sale of substantially all of the assets of a party (or any of its subsidiaries) or its acquisition by or merger into another company, shall not be deemed an assignment of this Agreement by such party. This Agreement shall benefit and be binding upon the successors and assigns of the parties hereto.

15.3 Counterparts. This Agreement may be signed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will comprise a single instrument.

15.4 Entire Agreement.  This Agreement (including any documents incorporated herein by reference to a URL or otherwise, and any Order Form), constitutes the entire agreement between Customer and Momentive and it supersedes any other prior or contemporaneous agreements or terms and conditions, written or oral, concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal do not apply to the Services, do not override or form a part of this Agreement, and are void.

15.5 Force Majeure. Neither Momentive nor Customer will be liable for any delay, inadequate performance or failure to perform any obligations under this Agreement (except for a failure to pay fees) to the extent caused by a condition (including, but not limited to, natural disaster, act of war or terrorism, earthquake, pandemic or health crisis, riot, governmental order, action or inaction, denial of service attack or utility  or internet service provider failure, delay or disturbance) that was beyond the party’s reasonable control.

15.6 Independent Contractors. The relationship between Momentive and Customer is that of independent contractors, and not legal partners, employees, joint venturers, or agents of each other.

15.7 No Waiver. A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.

15.8 Notices.

(a) Providing Notice. All notices must be in writing and will be deemed given when: (i) personally delivered, (ii) verified by written receipt, if sent by postal mail with verification of receipt service or courier, (iii) received, if sent by postal mail without verification of receipt, or (iv) verified by automated receipt or electronic logs if sent by email.

(b) Notices to Momentive. Notices to Momentive must be sent to Momentive Inc., One Curiosity Way, San Mateo, CA 94403, USA, marked to the attention of the Legal Department, with a copy to legalnotices@momentive.ai. Email is insufficient for providing non-routine legal notices (including indemnification claims, breach notices, and termination notices) (“Non-Routine Legal Notices”) to Momentive. Customer may grant approvals, permission, extensions, and consents by email.

(c) Notices to Customer.  Notices to Customer may be sent to the email address associated with Customer’s designated primary administrator for the relevant Service (“Primary Admin”).  Billing- related notices (including notices of overdue payments) may be sent to the relevant billing contact designated by Customer. If Customer has provided contact details for legal notices on the cover page of this Agreement, any Non-Routine Legal Notices will be provided to such contact instead, with a copy to the email address associated with Customer’s Primary Admin.

(d) Keep Contact Details Current. Customer and its End Users must keep the contact details associated with their user accounts and billing contacts current and accurate and notify Momentive in writing of any changes to such details.

15.9 Precedence. If any conflict exists among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) this Agreement, and (3) the applicable SSTs. Any terms set forth under a “Special Terms” heading in any of the foregoing documents will take precedence over any other terms to the contrary in that document.

15.10 Severability. If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed, and the remainder of terms will remain in full effect.

15.11 Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement.  Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.

15.12 Language. This Agreement was prepared and written in English. Any non-English translations of this Agreement which may be made available are provided for convenience only and are not valid or legally binding.

16.1 U.S. Government Terms.

(a) Federal Government Agencies. If Customer is a United States Federal Government Agency, the Amendment Applicable to U.S. Government Users and Subscribers located here applies to Customer, except that references to the “Agreement” in that Amendment are to be read as references to this Agreement, and references to “Content” will refer to Customer Data.

(b) Other U.S. Governmental Entities. If Customer is a different type of governmental entity in the United States, the Amendment Applicable to Other Government Entities in the U.S. located here applies to Customer, except that references to the “TOU” and “Terms” in that Amendment are to be read as references to this Agreement.

17.1 CCPA. Where Momentive is processing “Personal Information” for Customer as defined under the California Consumer Privacy Act of 2018 (Cal. Civ. Code §§ 1798.100 - 1798.199) (“CCPA”) and in connection with California consumers, the parties hereby agree that Momentive is a “Service Provider” and Customer is the “Business”.  As your Service Provider, Momentive will:

(a) collect, retain, use, disclose and otherwise process Personal Information solely (1) to fulfill its obligations to Customer under this Agreement, on the Customer’s behalf, (2) for the Customer’s operational purposes, (3) for Momentive’s internal use as permitted by Data Protection Legislation, (4) to detect data security incidents or protect against fraudulent or illegal activity, (5) as otherwise permitted under Data Protection Legislation and (6) for other notified purposes and for no other operational purposes;

(b) cooperate as reasonably requested by Customer (at Customer's expense) to enable Customer to comply with obligations under the CCPA to respond to verifiable consumer requests to delete or access Personal Information processed by Momentive in providing the Services;

(c) not sell Personal Information or otherwise disclose Personal Information for a commercial purpose; and

(d) hereby certify that it understands the restrictions and obligations set forth in Cal. Civ. Code § 1798.140(w)(2) and will comply with them.