Platfrom SaaS Subscription Terms
Platfrom SaaS Subscription Terms
ENHANCED PLATFORM SAAS SUBSCRIPTION TERMS
IMPORTANT: IF YOU HAVE EXECUTED AN ORDER FORM (AS DEFINED BELOW) TO PURCHASE ACCESS TO AND USE OF THE SERVICES (AS DEFINED BELOW), AND HAVE NOT OTHERWISE EXECUTED A SEPARATE WRITTEN SUBSCRIPTION AGREEMENT WITH US, THEN PLEASE READ THEISE ENHANCED PLATFORM SAAS SUBSCRIPTION TERMS (THE “TERMS”, AND TOGETHER WITH YOUR ASSOCIATED ORDER FORM, THIS “AGREEMENT”) CAREFULLY BECAUSE THEY GOVERN YOUR USE OF THE SERVICES.
This Agreement is effective as of the date on which you accept these Terms (the “Effective Date”). To make these Terms easier to read, the terms “Moment”, “us”, and “our” refer to Moment Technology Inc., and “Subscriber” or “you” refers to you and any organization that you are acting on behalf of as set forth in the applicable Order Form. Moment and Subscriber may each be referred to individually as a “Party” and collectively as the “Parties”.
OVERVIEW
Moment has developed a Platform (as defined below) designed to process data and message communications relating to the trading of certain Fixed Income Investments (as defined below), the creation by Subscriber of data-based lists of Fixed Income Investments and the management by Subscriber of portfolios held by Clients.
Subscriber desires to access and use the Platform, and Moment desires to permit such access and use, in accordance with the terms and conditions of this Agreement.
DEFINITIONS
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such entity. For the purposes of this definition, the term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Applicable Law” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, each to the extent applicable to such Party or any of its properties, assets, or business operations.
“API” means an application programming interface and any accompanying software code or documentation provided therewith.
“Authorized User” means Subscriber’s or a Client’s employees, contractors, or agents authorized by Subscriber or the Client to access and use the Platform pursuant to the terms and conditions of this Agreement.
“Clients” means any person, including individuals, broker-dealers, investment advisers, family offices, insurance companies, financial services firms, trading firms, custodians, or clearing firms that have entered into a written agreement with Subscriber for services that include or contemplate access to and use of any portion of the Platform.
“Client Agreement” means the agreement, between a Client and Subscriber for services that include or contemplate access to and use of any portion of the Platform, which Subscriber will ensure is consistent with the terms of this Agreement.
“Confidential Information” means:
The terms of this Agreement and any non-public, confidential or proprietary information relating to a Disclosing Party (as defined below), including any information that by its nature should be deemed confidential regardless of whether it is designated by the Disclosing Party as Confidential Information at the time of disclosure.
With respect to Moment: Market Data, all technical information including without limitation, source code, object code or underlying structure, methods, algorithms, designs, processes, formulae, compositions, systems, techniques, inventions, machines, computer systems and programs, technology architecture, research projects and Deliverables (as defined below), and
Business or operational information such as lists of Moment personnel information, information or other data from or relating to Moment customers, product pricing data and intellectual property as well as Fixed Income Holdings (as defined below).
Notwithstanding the foregoing, “Confidential Information” does not include information, technical data, or know-how that the Receiving Party can prove, through tangible evidence:
Is generally available to the public at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the Receiving Party;
Is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure;
Is lawfully in the possession of the Receiving Party at the time of disclosure by the Disclosing Party and not otherwise subject to restriction on disclosure;
Is approved for disclosure by prior written authorization of the Disclosing Party; or
Is developed independently and separately by the Receiving Party (or a third party from which the Receiving Party received such information, technical data, or know-how) without use of the Disclosing Party’s Confidential Information.
“Deliverables” means all documents, work product, and other materials that are delivered to Subscriber in the course of facilitating the availability of and performance of the Platform, including any deliverables identified in any statement of work provided.
“Documentation” means the manuals, specifications, and other materials describing the functionality, features, operating characteristics, and use of the Platform, as provided to Subscriber or made available to Subscriber by Moment, whether in a written or electronic form, which may be updated from time to time.
“Fixed Income Investments” are securities and other debt-based investment instruments for which Moment, in its sole discretion, has made a determination to enable transmission of attendant instruction-messages for purchase or sale.
“Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Platform.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property or similar rights (however designated) recognized in any country or jurisdiction in the world.
“Market Data” means price quotes, last sale, trade volume and other content created by Moment or licensed by Moment from third-party vendors and liquidity providers and displayed or made accessible to Subscriber, its Authorized Users, and/or Clients through the Platform.
“Moment API” means the API provided by Moment as further described at https://docs.withmoment.com/
“Moment IP” means, collectively, Moment API, Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and any and all Intellectual Property Rights in the foregoing.
“Order” means an instruction to purchase or sell a Fixed Income Investment.
“Order Form” means an order form or other ordering document agreed to in writing or electronically by you and Moment and accepted by you, in each case which references this Agreement and sets forth the applicable Services to be provided by Moment.
“Order Message” means a message entered by a Subscriber to communicate through the Platform an indication of interest to purchase or sell a Fixed Income Investment.
“Order Management Service” (“OMS”) Means the Data processing service offered by Moment to Communicate:
Market Data and Order Messages between liquidity providers (which for the avoidance of doubt may include venues such as ATSs) and Subscribers with the objective of Identifying best available opportunities for Subscribers to enter Orders with liquidity providers, and
Orders to liquidity providers and other necessary information to Subscribers' representatives to facilitate the execution and settlement of transactions between Subscribers and liquidity providers;
“Platform” means any code, database, API, method, technology architecture, design, protocol or technique developed by Moment and provided by Moment to Subscriber pursuant to this Agreement, along with any content, support, maintenance, consulting, or Documentation provided by Moment to Subscriber in connection therewith.
“Portfolio Processing Tool” (“PPT”) includes the following:
The Subscriber Data processing service offered by Moment to output a list of Fixed Income Investments that match the Subscriber’s requirements as identified in the Subscriber Data.
The periodical curation of the output generated in I.U.1., above in order to identify instances requiring the replacement, substitution or alteration of the such output.
“Services” Means the PPT and the OMS.
“Service Level Commitments” means the Platform service level commitments set forth in ANNEX 1 attached hereto.
“Subscriber Data” means any data, information or content that Subscriber, Authorized Users, or Clients submit to the Platform, including data, information or content provided for the purpose of facilitating the processing necessary to provide the Services.
“Subscriber Solution” means a technology solution that Subscriber provides to Clients in connection with providing custody, clearing and execution services to Clients.
ACCESS TO AND USE OF THE PLATFORM
Subject to the terms and conditions of this Agreement, Moment hereby grants Subscriber during the Term (as defined below) a limited, revocable, non-exclusive, non-transferable (except as provided in Section XVII(E) below), non-sublicensable right and license to:
Access and use the Platform for Subscriber’s own internal business purposes consistent with Moment’s intended use of the Platform, which includes but is not limited to the necessary exchange of Market Data, Order Messages and Orders to engage in the Services;
Integrate the Platform with the Subscriber Solution using the Moment IP; and
Permit access to the Platform by Clients solely through their use of the Subscriber Solution and not on a stand-alone basis.
Prior to allowing access to or use of the Platform by Clients as permitted in subsection II.A.3, above, Subscriber must enter into a Client Agreement with each Client.
Moment will use commercially reasonable efforts to make the Platform available in accordance with the Service Level Commitments attached hereto as ANNEX 1.
Access to and use of the Platform is subject at all times to the terms and conditions of this Agreement.
PLATFORM
For the purposes of this Agreement, the Platform may only be used in a manner consistent with Section II, above.
Subscriber shall be solely responsible for the following:
Accuracy of any Subscriber Data;
All aspects of the Subscriber Solution;
Communicating all pertinent risk parameters regarding the type of Fixed Income Investment as well as quantities, limits and transaction levels, such as prices and yields that will be the subject of information exchanges through the Platform.
Communicating the parameters regarding Client access to information, including pricing and transactional data, necessary to comply with Applicable Law.
Subscriber understands and acknowledges that for purposes of this Agreement, Moment:
Is not a registered Financial Institution such as a Bank, Investment Advisor, Broker or Dealer;
Does not accept any Orders for execution;
Does not provide financial advice or exercise any discretion with respect to Subscriber’s and Clients’ interest to purchase or sell Fixed Income Investments, including the negotiation of terms in connection with any transaction;
Is not and will not act as a Qualified Custodian, as defined in 17 CFR §275.206(4)-2.
Does not exercise any discretion with respect to the provision of any of the Services;
Is not a party to any transaction between Subscriber and any third-party liquidity provider;
Is not involved in the clearance and settlement of any transaction between Subscriber and any third-party liquidity provider, other than by facilitating the exchange of information between the Subscriber and its carrying or custody firm;
Is not responsible for any losses, whether realized or unrealized, resulting from errors, or incorrect execution of Orders;
Is not responsible in any direct or indirect way for financial performance or lack thereof in connection with the provision of the Services.
As deemed appropriate by Moment, access to the Platform or its use may be limited to comply with Applicable Law.
The Parties agree that they shall operate independently with no obligations to supervise the activities or personnel of the other Party.
Each Party shall be responsible for its own actions, conduct and business operations and actions and inactions and for compliance with any Applicable Laws to which it is subject.
The Parties agree that the Deliverables are not deemed a “work made for hire” under U.S. copyright laws but are instead owned solely by Moment and its Affiliates consistent with Section IV below.
The Parties agree that the Platform may only be used in the United States and all activity involving the Platform is deemed to be performed in the United States.
OWNERSHIP
As between the Parties, Moment (or its licensors or Affiliates), reserves, solely owns and shall continue to own the Platform, Documentation and Moment IP, and all right, title and interest, including all Intellectual Property Rights, in and to the foregoing, including without limitation any copy, translation, modification, enhancement, upgrade, adaptation, or derivation thereof.
Subscriber does not obtain any rights to any of the foregoing, except for the limited license rights expressly set forth in Section II.A.
Moment and its Affiliates are, and shall be, the exclusive owners of all rights, titles, and interests in and to the Deliverables, including all Intellectual Property Rights therein.
RELATIONSHIP WITH THIRD-PARTIES AND AUTHORIZED USERS
Subscriber acknowledges and agrees that:
the access to and use of the Platform by any contractor or agent who has been designated as an Authorized User shall be limited to such Authorized User’s provision of services to Subscriber or Client; and
Subscriber is responsible for the acts and omissions of Authorized Users and any other person who accesses and uses the Platform using any Authorized Users’ Credentials (as defined below), except to the extent caused by the gross negligence or willful misconduct of Moment or any of its Affiliates.
Certain aspects of the Market Data are licensed to Moment by third-party vendors and liquidity providers that may require that Subscriber have a direct contractual relationship in order to access or receive such Market Data. Under such circumstances, Moment will not provide such Market Data to Subscriber unless it has received written consent from the Market Data provider.
This Agreement is non-exclusive and nothing in this Agreement shall prevent Moment or any of its Affiliates from providing similar services to other subscribers.
Subscriber has the right to negotiate and enter into separate Client Agreements directly with Clients without any interference or involvement from Moment, provided that such Client Agreements must comply with Applicable Law and the terms of this Agreement.
During the Term, neither Party shall:
disparage the other Party or the other Party’s products and services, or
encourage any person that such Party knows to be an existing client of the other Party to terminate or breach its agreement with such other Party.
The foregoing shall not preclude or restrict either Party from:
doing business with any person that contacts such Party, or
responding truthfully or accurately to inquiries from regulators.
Subscriber will not, and will not authorize, permit, or encourage any third party (including, without limitation, its Authorized Users) to do any of the following, and will use best efforts to ensure that Client Agreements include terms prohibiting the following:
Allow anyone other than Authorized Users and Clients to access and use the Platform.
Allow an Authorized User or Client to share with any third party any Credentials (as defined below).
Reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or of Moment IP.
Modify, adapt, or translate the Platform or make any copies of the Platform or of Moment IP.
Resell, distribute, or sublicense the Platform.
Use the Platform in violation of any Applicable Law.
Use the Platform to build a competitive product or service, or for any purpose not specifically permitted in this Agreement, or
Introduce, post, or upload to the Platform any Harmful Code.
Each Authorized User’s access to and use of the Platform will require a sign-in name, password, and certain additional information, including a valid email address, to authenticate the Authorized User’s identity when accessing the Platform (collectively, “Credentials”).
Subscriber is solely responsible for the confidentiality and use of all Credentials, as well as for any use or misuse by any Authorized User of the Platform using such Credentials.
Subscriber is responsible for verifying that any Authorized Users and Clients are those intended by Subscriber to have access to the Platform, and for any misuse of the Platform by its Authorized Users and Clients, absent willful misconduct or gross negligence by Moment or its employees or agents;
Use of the Platform by an Authorized User or Client does not give rise to any direct or indirect or implied legal or contractual relationship between such party and Moment or any of its Affiliates;
Subscriber’s agreements and relationships with Authorized Users and Clients do not imply or create any direct legal or contractual obligations or formal relationship between Moment or its Affiliates and such Authorized Users or Clients;
Subscriber will promptly inform Moment in the event that Subscriber suspects, obtains knowledge of, or has reason to believe that Credentials may need to be deactivated or changed.
Moment reserves the right to delete or change Credentials at any time and for any reason upon notice to Subscriber.
Moment’s obligations regarding the Platform, arise only under this Agreement and remain solely to Subscriber and not to any Authorized User or any Client.
Third Party Services. Certain features and functionalities within the Platform may allow Subscriber, Client or the Authorized Users of either to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”). Moment does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Subscriber is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Subscriber to use the Third-Party Services in connection with the Platform.
LICENSE GRANT BY SUBSCRIBER Subject to the terms and conditions of this Agreement, Subscriber hereby grants to Moment a limited, non-exclusive, non-transferable, non-sublicensable right and license to access, use and reproduce Subscriber’s name and logo.
FEES AND PAYMENT
All payments are due as specified in this Section VII within seven (7) calendar days of receipt of invoice.
As consideration for the access to and use of the Platform as set forth herein, Subscriber will pay Moment a fee for the software access being provided as a service (“SaaS Fees”) detailed individually for each of the Services based on the selections made in the Enhanced Platform SaaS Subscription Order Form (“Order Form”).
As consideration for additional services detailed in the Order Form, Subscriber will pay Moment the additional fees set forth in the Order Form (“Additional Fees”).
Unless otherwise agreed in writing by the Parties, the Order Form shall be locked for the Term (as defined below), except that all SaaS Fees and Additional Fees therein will be subject to an automatic 1.7% inflation compensation increment on each six-month anniversary of the Effective Date during the Term.
SaaS Fees relating to the use of the PPT, may be a flat fee or volume-based fees per asset class available for PPT, or a combination thereof as noted in the Order Form. The volume-based fees shall be calculated as follows:
Initially, Subscriber will be assessed for each selected asset class available for PPT on a monthly basis the higher of $5,000 (“Minimum PPT Fee”) or the SaaS Fee for use of the PPT set forth in the Fee Schedule corresponding to, the total market value of Fixed Income Investments in each selected asset class available for PPT held in custody or brokerage accounts for the benefit of Clients' customers which are subject to investment decisions by Subscriber or Clients but that do not include (i) Fixed Income Investments recently transferred to such accounts that are held to maturity (for the avoidance of doubt, if the cash proceeds associated with the maturity of such Fixed Income Investments is subsequently invested in Fixed Income instruments, the value of the acquired Fixed Income Investments will be included in the market value of Fixed Income Investments for purposes of this definition) or (ii) Fixed Income Investment that are held in Separately Managed Accounts managed by 3rd-party fiduciaries. (“Fixed Income Holdings”) as of the Effective Date.
On each six month anniversary of the Effective Date during the Term, Subscriber will be assessed the SaaS Fee for use of the PPT that corresponds to the Fixed Income Holdings for each selected asset class available for PPT as of the date of the corresponding six-month anniversary, provided that such Fixed Income Holdings as of the date of the corresponding six month anniversary has increased by 2.5% or more.
On each six month anniversary of the Effective Date, Subscriber will continue to pay until the next six-month anniversary an unchanged SaaS Fee for use of the PPT if the Fixed Income Holdings in the selected asset class available for PPT as of the date of the corresponding six-month anniversary has remained unchanged or has gone up by less than 2.5%.
Upon each automatic renewal under Section X.A.1., below, Subscriber will pay on a monthly basis for the first six months of the Renewal Term the higher of:
103.4% of the Minimum PPT Fee for each selected asset class available for PPT,
the total SaaS Fee for use of the PPT Subscriber paid during the last 6 months of the previous Initial Term or Renewal Term (including all selected asset classes available for PPT), or
the total SaaS Fees for PPT use for each selected asset class available for PPT reflected in the Fee Schedule current on the first day of the Renewal Term corresponding to the Fixed Income Holdings for each selected asset class available for PPT as of the the first day of the Renewal Term.
On the six month anniversary of the first day of each Renewal Term, for each selected asset class available for PPT Subscriber will be assessed the higher of the Minimum PPT Fee or the SaaS Fee for PPT use, corresponding to the Fixed Income Holdings for each selected asset class available for PPT (calculated individually), as of the date of the six-month anniversary (as reflected in Moment’s then current fee schedule), provided that the market value of such Fixed Income Holdings (calculated in aggregate) as of the date of the corresponding six month anniversary has increased by 2.5% or more.
On each six month anniversary of the first day of each Renewal Term, Subscriber will pay an unchanged Minimum PPT Fee or SaaS Fee for PPT use for each selected asset class available for PPT, if the sum of the Fixed Income Holdings for the selected asset class available for PPT as of the date of the corresponding six-month anniversary has remained unchanged or has gone up by less than 2.5%.
Moment will notify Subscriber of any estimated changes to the Minimum PPT Fee and Fee Schedule that will apply for a Renewal Term at least sixty (60) days before such Renewal Term begins.
Customer is solely responsible for any applicable sales, use or other taxes (including transaction related fees imposed by law or regulation) or charges related to the payment of the Fees and for the use and receipt of Market Data or the Moment IP. Undisputed payments that are past due shall accrue interest at the lesser of one- and one-half percent (1.5%) per month or part of a month, or the maximum rate permitted by law. Moment shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from Subscriber that are more than seven (7) calendar days delinquent.
For clarity, Subscriber agrees:
to provide on a timely basis accurate Fixed Income Holdings information necessary to calculate the Fees and Payments under this Section VII and Annex 2, and
that unpaid payments that are more than seven (7) calendar days delinquent shall constitute a material breach of this Agreement.
BOOKS AND RECORDS. During the Term and for three (3) years thereafter, Subscriber shall maintain books and records in connection with the use of the Platform.
RIGHT TO AUDIT
During the Term (as defined below) and for one (1) year thereafter, Moment and its agents shall have the right, not more than once per calendar year, to audit, inspect and make copies of Subscriber’s books and records that relate to the terms, conditions and obligations of this Agreement, upon thirty (30) days advance written notice to Subscriber.
Moment and its agents shall have the right to conduct additional audits during a particular calendar year and subsequent calendar years if a particular audit indicates a lack of compliance with the terms of conditions of this Agreement.
The books and records reviewed during an audit shall be considered Confidential Information.
Moment will bear the cost and expense of any audit except that in the event any such audit reveals that Subscriber has breached the terms and conditions of this Agreement in any material aspect, then Subscriber shall promptly pay and reimburse Moment for all out-of-pocket costs and expenses reasonably and actually incurred by Moment and its agents in conducting the audit. Any such audit shall be conducted during Subscriber’s normal business hours, in accordance with Subscriber’s policies and procedures, and in a manner designed to limit disruption to Subscriber’s operations.
TERMINATION AND SUSPENSION
This Agreement is effective as of the Effective Date and shall continue in full force and effect for the period specified in the Order Form (“Initial Term”), unless earlier terminated as set forth herein.
After the Initial Term, this Agreement shall automatically renew each time for consecutive terms equal in length to the the Initial Term (each, a “Renewal Term”), unless terminated by a Party on written notice to the other Party at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable.
The Initial Term and all Renewal Terms shall be collectively referred to as the “Term”.
Termination for Material Breach. Either Party may, by written notice to the other Party, terminate this Agreement with immediate effect if such other Party is in material breach of any provision of this Agreement, and such breach is not cured within thirty (30) days after the impacted Party gives the other Party written notice of such breach.
Effect of Termination. Upon termination of this Agreement, Subscriber will immediately cease, and cause its Authorized Users and Clients to cease, all access to and use of the Platform.
Survival The following provisions will survive termination of this Agreement: Section I (“Definitions”), Section IV (“Ownership”), Section V (“Relationship With Third-Parties And Authorized Users”), Section VII (“Fees and Payment”), Section VIII (“Books and Records”), Section IX (“Right to Audit”), Section X (“Termination and Suspension”), Section XI (“Confidentiality”), Section XII (“Feedback”), Section XIII (“Subscriber Data”), Section XIV (“Representations and Warranties”), Section XV (“Limitation of Liability”), Section XVI (“Indemnities”), and Section XVII (“Miscellaneous”).
Suspension, Limitation or Termination. Moment is entitled, without liability to Subscriber, to immediately suspend, terminate or limit Subscriber’s access to any or all part of the Platform at any time in the event: (a) that Moment reasonably suspects that the Platform is being used in violation of any applicable law or regulation or in a manner inconsistent with this Agreement or the Documentation; (b) that Moment determines that the Platform is being used in an unauthorized or fraudulent manner; (c) that Moment determines that the use of the Platform adversely affects Moment’s equipment or service to other subscribers; (d) Moment is prohibited by an order of a court or other governmental agency from providing the Platform; or (e) any other event which Moment determines, in its sole discretion, may create a risk to the Platform or to any other users of the Platform. Without limitation, Moment will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Subscriber’s right to use the Platform in accordance with this Agreement.
CONFIDENTIALITY
Each party receiving Confidential Information in connection with this Agreement, the “Receiving Party”, will retain the Confidential Information disclosed by the other Party (the “Disclosing Party”) in the strictest confidence and will not disclose such Confidential Information to any person without the Disclosing Party’s express written consent, other than, on a need-to-know basis, to its employees or professional advisors of the Receiving Party or of an Affiliated Entity (“Representatives”).
Notwithstanding anything to the contrary herein, the obligation to maintain the confidentiality of Confidential Information will not apply to the extent that the Receiving Party is required to disclose such Confidential Information pursuant to Applicable Law or a legally enforceable order of, or a request for information from, a Governmental Authority, self regulatory organization or recognized securities or commodities exchange; provided that, to the extent reasonably permitted under the circumstances, the Receiving Party first provides notice to the Disclosing Party to enable the Disclosing Party to seek a protective order or an injunction. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use commercially reasonable efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
Notwithstanding anything to the contrary herein, with respect to either Party, the obligation to maintain the confidentiality of this Agreement will not apply to the extent that such Party discloses this Agreement to a potential buyer in connection with a financing round or the sale of substantially all of its assets; provided however, that prior to such disclosure, such potential buyer has entered into a non-disclosure agreement with such party on terms similar to those contained herein.
Each Party acknowledges that in the event of a breach or threatened breach of this Section, substantial injury could result to the Disclosing Party and money damages may not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party engages in, or threatens to engage in any act which violates any provision of this Section, the Disclosing Party shall be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of this Section. The Disclosing Party shall not be required to post a bond or other security in connection with the granting of any such relief.
FEEDBACK
During the Term, Subscriber, Authorized Users, or Clients may elect to provide Moment with feedback, comments or suggestions (collectively, “Feedback”) relating to the Platform.
Moment may elect not to act on any Feedback.
Subscriber hereby grants Moment a perpetual, irrevocable, royalty-free, fully paid-up license, with the unlimited right to sublicense, to use, reproduce, disclose, and otherwise exploit any and all Feedback in any matter or medium known or later developed, including, without limitation, to test, develop, maintain or improve the Platform, without compensation or attribution to Subscriber or any Authorized User or Client or third party.
SUBSCRIBER DATA
Subject to the terms and conditions of this Agreement, Subscriber hereby grants Moment an exclusive, limited, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to Affiliates and vendors providing services to Moment (such as hosting providers), to reproduce, execute, use, store, archive, modify perform, display, and distribute Subscriber Data solely in connection with the mutually agreed upon purpose which is limited to what is deemed necessary for Moment to make the Platform operational and available.
Upon expiration or termination of the Agreement and upon Subscriber’s request, Moment shall return or certify the destruction of all Subscriber Data and may only retain an archival copy of the Subscriber Data solely for purposes of complying with Applicable Law.
The obligation under Section XIII.B. shall not apply to Subscriber Data submitted to the Platform that relates to transactions attempted (including request for quotes) or completed by Subscriber or to Subscriber Data that Moment determines in its sole discretion should be preserved under Applicable Law.
Subscriber represents and warrants to Moment that it has obtained all Client or third party consents and authorizations required under Applicable Law or otherwise to provide Subscriber with the Subscriber Data and to make such Subscriber Data available to Moment for use as set forth herein.
Subscriber acknowledges and agrees that it is solely responsible for accuracy and quality of the Subscriber Data that it provides in connection with the Deliverables or that it makes available through the Platform.
Moment monitors the performance and use of the Platform by Subscriber, Authorized Users, and Clients, and Moment collects data in connection therewith, including, without limitation, date and time when Subscriber Data was provided to the Platform, when the Platform was accessed, the portions of the Platform used, the frequency and number of times of such access and use, and other usage data (the “Usage Data”). Moment may combine Usage Data and Subscriber Data with other data, including, without limitation data relating to other Moment customers, provided that the resultant data is anonymized to avoid the identification of individual Clients (“Aggregate Data”). Subscriber hereby agrees that Moment will be free to use, transfer and otherwise exploit the Aggregate Data for its business purposes and that the obligations under Section XIII.B. above shall not apply to any Subscriber Data embedded in Aggregate Data.
REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that:
it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement;
the execution, delivery, and performance of this Agreement, and the consummation of the transactions contemplated hereby, are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party, and
its performance under this Agreement shall comply with all Applicable Laws.
Disclaimers
THE PLATFORM AND ANY MATERIALS OR SERVICES PROVIDED BY MOMENT OR ITS LICENSORS HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND MOMENT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, SUBSCRIBER ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT MOMENT MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
ANY OBLIGATION OF MOMENT UNDER THIS AGREEMENT IS TO THE SUBSCRIBER ONLY AND NOT TO ANY CLIENT, ANY END-CUSTOMER OF ANY CLIENT, OR ANY OTHER THIRD PARTY. THIS AGREEMENT DOES NOT GIVE RISE TO ANY DIRECT, INDIRECT, OR IMPLIED LEGAL OR CONTRACTUAL RELATIONSHIP BETWEEN MOMENT AND ANY CLIENT, END-CUSTOMER OF ANY CLIENT, OR ANY OTHER THIRD PARTY.
ANY MARKET DATA OR ONLINE REPORTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF A PARTICULAR PURPOSE OR NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT THE INFORMATION CONTAINED IN ANY REPORTS PROVIDED BY MOMENT IS OBTAINED FROM SOURCES BELIEVED TO BE RELIABLE BUT IS NOT GUARANTEED AS TO ITS ACCURACY, COMPLETENESS, TIMELINESS OR SEQUENCING. SUCH INFORMATION COULD INCLUDE TECHNICAL OR OTHER INACCURACIES, ERRORS OR OMISSIONS. SUBSCRIBER ACKNOWLEDGES THAT MOMENT IS PROVIDING INFORMATION ABOUT INDICATIONS OF TRADING INTEREST IN CERTAIN FIXED INCOME INVESTMENTS PROVIDED BY LIQUIDITY PROVIDERS, BUT THESE INDICATIONS OF INTEREST MAY NOT BE IMMEDIATELY EXECUTABLE QUOTES OR ORDERS ON THE PART OF THE LIQUIDITY PROVIDERS, AND MOMENT MAKES NO REPRESENTATION CONCERNING WHETHER ANY LIQUIDITY PROVIDER ULTIMATELY WILL BE WILLING TO TRANSACT IN THOSE FIXED INCOME INVESTMENTS AT THE PRICES CONTAINED IN THE INDICATIONS OF INTEREST, OR AT ALL. IN NO EVENT SHALL MOMENT OR ANY OF MOMENT’S AFFILIATES BE LIABLE TO THE SUBSCRIBER OR TO ANY THIRD-PARTY FOR THE ACCURACY, TIMELINESS, COMPLETENESS OR SEQUENCING OF ANY INFORMATION MADE AVAILABLE TO THE SUBSCRIBER OR FOR ANY DECISION MADE OR TAKEN BY THE SUBSCRIBER, ITS AFFILIATES AND CLIENTS IN RELIANCE UPON SUCH INFORMATION.
MOMENT IS NOT A FIDUCIARY AND DOES NOT HAVE ANY FIDUCIARY OBLIGATION TO EITHER THE SUBSCRIBER OR ITS CLIENTS.
MOMENT MAY HAVE UNDISCLOSED CONFLICTS OF INTERESTS IN CONNECTION WITH THE EXECUTION OF THIS AGREEMENT.
NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF ANY KIND OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT CAUSED DIRECTLY OR INDIRECTLY BY FIRE, FLOOD, WAR, TERRORISM, EARTHQUAKE, ELEMENTS OF NATURE OR ACTS OF GOD OR THE PUBLIC ENEMY; RIOTS, CIVIL DISORDERS, REBELLIONS OR REVOLUTIONS; STRIKES, EPIDEMICS, PANDEMICS, LOCKOUTS, OR LABOR DIFFICULTIES; GOVERNMENT IMPOSED QUARANTINES OR DENIAL OF ACCESS OR OPERATION, ACTS OR OMISSIONS OF REGULATORY OR GOVERNMENTAL AUTHORITIES, SELF-REGULATORY ORGANIZATIONS OR SECURITIES EXCHANGES, CLEARING FIRMS, CUSTODIANS, MARKET DATA PROVIDERS, THE INTERNET OR COMMUNICATION LINK PROVIDERS, TECHNOLOGY FAILURE, CHANGES IN LAW, RULE OR REGULATION; OR ANY OTHER CAUSE BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT SIMILAR TO THE FOREGOING., EXCEPT THAT THE FOREGOING DOES NOT APPLY TO AN OBLIGATION TO PAY FEES.
MOMENT IS NOT RESPONSIBLE FOR OR REQUIRED TO UNDERSTAND APPLICABLE LAWS RELATING TO SUBSCRIBER OR ANY CLIENT OR THEIR RESPECTIVE BUSINESSES, AND MOMENT IS NOT RESPONSIBLE FOR ENSURING THAT THE PLATFORM COMPLIES WITH SUCH APPLICABLE LAWS EXCEPT INSOFAR AS APPLICABLE TO MOMENT OR ITS BUSINESS.
SUBSCRIBER OR CLIENTS ARE SOLELY RESPONSIBLE FOR ANY REPORTING REQUIRED BY APPLICABLE LAWS RELATING TO SUBSCRIBER’S OR ANY CLIENT’S BUSINESS, AND MOMENT SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION THEREWITH, EVEN IF SUCH REPORTING IS PRODUCED BY OR DERIVED FROM THE PLATFORM.
LIMITATION OF LIABILITY
EXCEPT IN CONNECTION WITH SUBSCRIBER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING HEREUNDER, USE OF THE PLATFORM EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE LOWER OF $25,000 OR THE PLATFORM FEE PAID BY SUBSCRIBER HEREUNDER DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
INDEMNITIES
Indemnification by Subscriber
Subscriber will indemnify, defend, and hold Moment and its Representatives harmless from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, regulatory fines or settlements) (collectively, “Losses”) incurred by Moment and its Representatives in connection with any third-party action, claim, or proceeding (each, a “Claim”) (including, without limitation, any Claim made by a Client), arising from:
the Subscriber Solution infringing or misappropriating or otherwise violating the intellectual property rights of any third-party;
use of the Platform by Subscriber, Client or their Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section II.A.;
the negligence, gross negligence or willful misconduct of Subscriber, any Authorized User or Clients.
Indemnification by Moment
Moment will indemnify, defend, and hold Subscriber and its Representatives harmless from and against any and all Losses incurred by any such parties in connection with any third-party Claim:
arising from Moment’s gross negligence or willful misconduct, or
alleging that Subscriber’s and its Authorized Users’ access to and use of the Platform in accordance with this Agreement infringes or misappropriates any third-party copyrights or trade secrets.
In the event that Moment reasonably determines that the Platform is likely to be the subject of a third-party Claim, Moment, in its sole discretion, may:
procure for Subscriber the right to continue to use the Platform as provided in this Agreement;
suitably modify the Platform or any component thereof, so that it is non-infringing, or
if none of the foregoing options are available to Moment on commercially reasonable terms, Moment may terminate this Agreement and refund all funds pre-paid by Subscriber for services not rendered.
Notwithstanding the foregoing, Moment is not obligated to indemnify, defend, or hold Subscriber or its Representatives harmless with respect to any third-party Claim to the extent the third-party Claim arises from or is based upon:
use of the Platform by Subscriber or any Authorized user other than in accordance with the Documentation or this Agreement;
any unauthorized modifications, alterations, or implementations of the Platform that have not been made by or authorized in writing by Moment;
use of the Platform in combination with unauthorized modules, apparatus, hardware, software, or services not supplied, specified or authorized in writing by Moment;
use of the Platform in a manner or for a purpose for it was not designed; or
any Subscriber Data.
This Section XVI.B.2. states Subscriber’s sole and exclusive remedy, and Moment’s sole and exclusive liability, regarding any third-party Claim.
The indemnification obligations set forth in XVI.B.1. and XVI.B.2. are subject to the indemnified Party:
promptly notifying the indemnifying Party of the Claim, provided that failure to provide such notice will not relieve the indemnifying Party of its indemnity obligations unless it is materially prejudiced by such failure;
providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and
providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.
MISCELLANEOUS
The relationship of the Parties is one of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
This Agreement sets forth the entire agreement of the Parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between the Parties with respect to the subject matter hereof.
This Agreement may not be modified or amended except in writing signed by both Parties.
Any notices or other communications required to be delivered under this Agreement shall be made in writing and delivered via registered mail or via email.
Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party, which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise.
Any assignment or other transfer in violation of this provision will be null and void.
Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the Party that is waiving the rights.
In the event that any provision of this Agreement conflicts with any Applicable Laws, such provision shall be deemed null and void and this Agreement shall be read as if such provision were no longer a part of this Agreement.
If any term, condition, or provision of this Agreement is held by a court or arbitral tribunal of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
U.S. Government End Users. The Platform and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial
computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Subscription Services, software and Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Subscriber will immediately discontinue its use of the Platform and Documentation.
Export Regulation. Subscriber affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Platform, software, the Subscriber Solution, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Subscriber will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.
Third-Party Beneficiary. This Agreement is solely for the benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under, or by reason of, this Agreement.
Governing Law. This Agreement will be governed by and construed in accordance with the law of the State of New York without regard to the conflicts of law rules of such state.
Dispute Resolution. All disputes under or relating to this Agreement shall be resolved by mandatory binding arbitration. The arbitration proceeding shall be administered by the American Arbitration Association (“AAA”) or such other administrator, as mutually agreed upon by the parties in writing. Arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules. If there is any inconsistency between the terms hereof and any such rules, the terms and procedures set forth herein shall control. A single arbitrator will resolve the dispute and shall be selected by mutual agreement of the parties. If the parties are unable to agree to an arbitrator, the AAA shall select and appoint the arbitrator. The arbitration shall be conducted in New York County, New York, and the parties irrevocably consent to such venue. All statutes of limitation applicable to any dispute shall apply to any arbitration proceeding. All discovery activities shall be expressly limited to matters directly relevant to the dispute being arbitrated and subject to limitation by the arbitrator to a level commensurate with the amount in controversy and complexity of the issues involved. Judgment upon any award rendered in arbitration may be entered in any court having jurisdiction.
Jurisdiction. Each party:
Hereby irrevocably consents to the jurisdiction of the United States District Court for the Southern District of New York or any New York court sitting in the Borough of Manhattan (and of the appropriate appellate courts therefrom) with respect to the entering of arbitration awards or with respect to any other matter found to be not arbitrable pursuant to 20.c. above, and
Irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any proceeding brought in any such court or that any such proceeding has been brought in an inconvenient forum.ANNEX 1
SERVICE LEVEL COMMITMENTS
Error Severity LevelResponse TimeResolution TimeLevel 1 Error: Platform is not working, or a significant function of the Platform is not properly workingMoment will respond to and commence efforts to fix Level 1 Errors within 1 hour of the Error being reported by SubscriberMoment will use commercially reasonable efforts, twenty-four (24) hours per day, seven (7) days per week to resolve the Error or provide Subscriber with an acceptable work-around within 24 hours of the Error being reported by SubscriberLevel 2 Error: Functionality of the Platform is impairedMoment will respond to and commence efforts to fix Level 2 Errors within 2 hours of the Error being reported by SubscriberMoment will use commercially reasonable efforts, during Operating Hours, to resolve the Error or provide Subscriber with an acceptable work-around within 72 hours days of the Error being reported by Subscriber
Moment will use commercially reasonable efforts to maintain the following service level commitments (the “Service Level Commitments”) for the Platform:
1. Availability
The Service Level set forth herein will not apply to performance issues (i) caused by factors outside of Moment’s reasonable control; (ii) that resulted from any actions or inactions of Subscriber or any Client or other third party; or (ii) that resulted from any hardware, software or other equipment supplied by Subscriber or any Client or other third party.
“Available” means the Platform is available for use by Subscriber during Operating Hours.
The Network will be available from 7AM ET to 6PM ET during US business days, subject to holiday exceptions as per the sifma.org US Holiday Recommendations (“Operating Hours”).
“Scheduled Maintenance” means maintenance performed outside of Operating Hours.
The Platform will be Available 99.9% in any calendar quarter during the Operating Hours throughout the Term (the "Service Level Warranty").
2. Correction of Errors
In the event of an error, as described below, Subscriber will notify Moment, providing sufficient information regarding the error, by contacting Moment at support@withmoment.com.
Moment will respond to and resolve errors in accordance with the table set forth below:
3. Exclusions
Moment will not be responsible for failure to meet the Service Level Commitment due to: (i) outages caused by the failure of a public telecommunications network, (ii) the negligent, grossly negligent or willful actions of Subscriber or any Client; (ii) any Subscriber Data; (iii) unauthorized use or misuse of the Platform; or (iv) unavailability due to any force majeure or other event beyond Moment’s reasonable control.
4. Remedy
In the event Moment fails to meet the Service Level Commitments 3 or more times in any consecutive 3-month period, Moment will provide Subscriber with a credit equal to 25% of the Platform Licensing Fee. This remedy is Subscriber’s sole and exclusive remedy, and Moment’s sole and exclusive obligation, for failure to meet the Service Level Commitments.
Version Dated: 10/22/2024