Software and Data License Terms
Software and Data License Terms
SOFTWARE AND DATA LICENSE 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 SOFTWARE AND DATA LICENSE AGREEMENT WITH US, THEN PLEASE READ THESE SOFTWARE AND DATA LICENSE TERMS (THE “TERMS”, AND TOGETHER WITH YOUR ASSOCIATED ORDER FORM, THIS “AGREEMENT”) CAREFULLY BECAUSE THEY GOVERN YOUR USE OF THE MOMENT IP.
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 “Customer” 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 Customer may each be referred to individually as a “Party” and collectively as the “Parties.”
DEFINITIONS.
“Affiliate or Affiliated Entity” means, with respect to a given Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person.
“Applicable Law” means, with respect to any Person, any federal, national, state, or local law (statutory, common, administrative or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling, or other similar requirement enacted, adopted, promulgated, or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.
“API” means an application programming interface and any accompanying software code or documentation.
"Clients” means individuals or entities to whom Customer provides certain services pursuant to a Client Contract.
“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, the Data Products as well as 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, and research projects, and
Business or operational information such as lists of data providers, Moment personnel information, information or other data from or relating to Moment Customers, product pricing data and intellectual property.
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.
“Control” means actual management control, or the direct or indirect ownership of sufficient voting securities or ownership interest to exercise ultimate decision making authority.
"Customer Apps” means Customer’s web, mobile applications or other means to facilitate digital interface, including any API developed by Customer which facilitates Customer’s provision of services to Clients and, for clarity, excluding the Moment IP.
“Data Products” means the data services described in the Order Form which may include reference data, market/intraday and/or end-of-day pricing data which may be historical and/or evaluated pricing data relating to (i) US Treasury securities, (ii) public debt securities issued by foreign governments, (iii) securities issued by enterprises sponsored by the US Government or other federally related entities, (iv) securities issued by a State or Territory of the US or by one of its political subdivisions, agencies or instrumentalities, (v) certificates of deposit that are traded publicly, and (vi) debt securities that are issued by corporate entities and that are traded publicly. Data Products are provided subject to availability and compliance with Third-Party Data Terms and the laws and regulation of the United States and its administrative and political dependencies.
“Governmental Authority” means any transnational, domestic or foreign national, federal, state or local governmental authority, department, court, agency, or official, including any political subdivision thereof.
“Intellectual Property Rights” means any and all intellectual property or other similar proprietary rights throughout the world, including any and all (i) patents, invention disclosures, invention registrations, trademarks, service marks, trade names, trade dress, logos, domain names, social media accounts, copyrights and copyrightable works, mask works, trade secrets, know-how, software (including source code, object code and associated documentation), algorithms, techniques, ideas, proprietary and/or confidential information, and rights in data and databases; (ii) copies and tangible embodiments of, and other written materials related to, any of the foregoing, in whatever form or medium; and (iii) registrations and applications for registration of, and all goodwill associated with, any of the foregoing.
“Moment API” means the API provided by Moment as further described at https://docs.withmoment.com/reference/authentication
“Moment IP” means, collectively, the Data Products, Moment API, and any and all Intellectual Property Rights in the foregoing.
“Party” depending on the context will mean, either Moment or Customer, and, for the avoidance of doubt, will not refer to either Party when used as part of the term “third-party”. The term “Parties” refers to both Moment and Customer.
“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 these Terms and sets forth the applicable Data Products to be provided by Moment.
“Person” means an individual, corporation, partnership, limited liability company, association, trust, or other entity or organization, including a Governmental Authority.
LICENSE GRANT.
License Grant by Moment.
Subject to the terms and conditions of this Agreement, including, without limitation, any usage limits and restrictions set forth in the Order Form, Moment hereby grants to Customer during the Term a limited, revocable, non-exclusive, non-transferable (except as provided in Section 20.d), non-sublicensable (except as provided in Section 2.a.ii) right and license, solely in connection with Customer’s internal business purposes consistent with the DATA USE CASE specified in the Order Form, to access, reproduce, download and display the Data Products to Clients through the Customer Apps (subject to the restrictions set forth in 2.a.ii, below).
To the extent necessary for Customer to execute on the DATA USE CASE specified in the Order Form, and subject to the restrictions set forth in Section 2.a.iv, the limited right under the license granted under Section 2.a.i. for Customer to display the Data Products to Clients through the Customer Apps must be in a view-only non-downloadable format, except the data designated with a “Y” in Annex B which may be downloaded by Clients on an ad hoc non-systematic basis.
Subject to the terms and conditions of this Agreement, Moment hereby grants Customer a limited, revocable, non-exclusive, non-transferable license to use the Moment API solely to access and use the Data Products on and through the Customer App.
The limited license granted in Section 2.a.ii is expressly conditioned upon Customer: (i) before such display, causing each individual or entity to whom Customer displays the Data Products to enter into an agreement with Customer, the terms and conditions of which are at least as protective of the Moment IP as this Agreement, and which will include all the restrictions provided herein (such agreement, a “Client Contract”); and (ii) hereby agreeing to be responsible for all acts or omissions of Clients in connection with their use of the Data Products and their compliance with the Client Contract.
License Grant by Customer. Subject to the terms and conditions of this Agreement, Customer hereby grants to Moment a limited, non-exclusive, non-transferable, non-sublicensable right and license to access, use and reproduce Customer’s name and logo.
Creation of Derived Data. Subject to any usage limits and restrictions set forth in the Order Form, Customer may (i) create and (ii) use Derived Data in connection with Customer’s internal business purposes only in a manner consistent with the DATA USE CASE specified in the Order, and (iii) distribute to Clients bond analytics such as yields, spreads and durations on a bond-by-bond or portfolio basis by using the Data Product as one of multiple sources or analytical inputs in conjunction with additional third-party data and professional experience, provided that the data has been transformed, incorporated or used, in each case in a process such that Derived Data cannot be easily identified or reverse engineered as originating or directly derived from the Data Products (“Derived Data”).
CUSTOMER OBLIGATIONS. Customer shall:
Use the Data Products solely in the manner consistent with the DATA USE CASE represented in the Order Form;
Not modify the Data Products in any way, including without limitation during transmission to Clients through the Customer Apps;
Use the Data Products strictly as set forth herein and not share the Moment IP with any third parties except as expressly permitted herein;
Comply with all Applicable Laws in connection with its use of the Moment IP or any components thereof; and
Reproduce any copyright or other proprietary notice (or any source identifier) that Moment provides with the Moment IP or to Customer from time to time, and shall not remove, alter or obscure any of the foregoing proprietary notices or source identifiers.
RESTRICTION ON USE.
Customer shall not (and shall not authorize or knowingly permit any third-party to) make any use or disclosure of the Data Products except as expressly permitted under this Agreement.
Without limiting the foregoing, Customer shall not (and shall not authorize or knowingly permit any third-party to):
Except as provided in Annex A - USE OF ARTIFICIAL INTELLIGENCE, modify, reproduce, transfer, publish, disclose, distribute, sell, resell, license, sublicense, or rent the Moment IP, in whole or in part;
Remove or modify any proprietary markings or restrictive legends placed on the Data Products;
Use the Moment IP in violation of any Applicable Law;
Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, methods, algorithms, designs, processes, formulae, compositions, systems or techniques, inventions, machines, computer systems and programs as well as technology architecture relevant to the Data Products, the Moment API, or any other software used to access the Data Products; or
Use the Moment IP other than as expressly permitted in this Agreement.
Moment reserves the right to reject requests or temporarily throttle the Moment API if Moment receives an unusual number of requests, as determined by Moment in its sole discretion, and Customer acknowledges and agrees that such action by Moment does not constitute a breach of any obligation of Moment under this Agreement.
THIRD-PARTY TERMS. The Data Products include data sourced from third parties (“Third-Party Data”).
Access to and use of the Third-Party Data is subject to the terms of this Agreement, as well as any additional terms and conditions required by the providers of the Third-Party Data (the “Third-Party Data Terms”).
Customer acknowledges and agrees that:
Third-Party Data providers may require Moment to present Customer and/or Clients with, and cause Customer and/or Clients to agree to, Third-Party Data Terms in order for Customer and/or Clients to access such Third-Party Data via the Data Products (See, Annex B - Third-Party Data Terms);
If Customer and/or Client does not agree to such Third-Party Terms, then Moment may not allow Customer and/or Client to access the Data Products; and
As between Customer and a Third-Party Data provider, the Third-Party Data provider reserves and shall solely own the Third-Party Data .
In the event of a conflict between the Third-Party Data Terms and any other provision of this Agreement, the Third-Party Data Terms will prevail solely with respect to the applicable Third-Party Data.
If a provider of Third-Party Data requires Moment to agree to changes to the Third-Party Data Terms, or additional Third-Party Data Terms, in order for Moment to continue providing Third-Party Data, Moment will notify Customer of the changes and their effective date by any reasonable means.
If Customer does not wish to agree to the updated or new Third-Party Data Terms, Customer must promptly provide Moment with written notice.
Once Customer provides such written notice, Moment will exercise commercial efforts to cease the provision of such Third-Party Data to Customer. Moment will have complete discretion as to the time, manner and process undertaken to cease providing the Third-Party Data, including ceasing to provide components of the Data Products unrelated to the Third-Party Data or, in its sole discretion, terminating this Agreement.
If Customer does not provide the written notice required in subparagraph 5.c.i. above by the effective date of the changes to Third-Party Data Terms, or continues to use the applicable Third-Party Data on or after such effective date, then Customer shall be deemed to have accepted and agreed to the updated Third-Party Data Terms.
ACKNOWLEDGEMENT AND BRANDING.
Customer agrees to acknowledge Moment's contribution on its website or any platform where the Data Products are used or presented in a form and manner mutually acceptable to Customer and Moment and to link such acknowledgement to the following disclosure in a manner obvious to the person using or being presented the Data Products:
THE INFORMATION BEING PROVIDED (“INFORMATION”) IS BEING SUPPLIED BY MOMENT TECHNOLOGY INC. (“MOMENT”) SOURCED FROM THIRD PARTY DATA SOURCES. MOMENT IS NOT A FINANCIAL ORGANIZATION REGISTERED FOR THE PURPOSE OF PURCHASING OR SELLING FINANCIAL INSTRUMENTS. THE INFORMATION IS FOR INFORMATIONAL PURPOSES ONLY. THE INFORMATION IS NOT AN OFFER OR SOLICITATION TO BUY OR SELL ANY FINANCIAL INSTRUMENT, AND SHOULD NOT BE RELIED UPON EXCLUSIVELY TO MAKE FINANCIAL DECISIONS. THE INFORMATION SHOULD NOT BE CONSTRUED AS A RECOMMENDATION OR DETERMINATION OF SUITABILITY. MOMENT MAKES NO REPRESENTATIONS, GUARANTEES OR WARRANTIES REGARDING THE ACCURACY, COMPLETENESS OR FAIRNESS OF THE INFORMATION. ALL INFORMATION IS AS OF A PARTICULAR DATE AND MAY HAVE NOT BEEN UPDATED. THE PROVISION OF THIS INFORMATION DOES NOT IMPLY ANY OBLIGATION BY MOMENT TO UPDATE OR MAINTAIN THE INFORMATION CURRENT.
Customer agrees that Moment is granted the right to use Customer's logo on its website and in its marketing materials to signify the business relationship between the two parties. Each usage by Moment of Customer’s logo will be subject to Customer’s written approval.
FINANCIAL TERMS.
Customer shall pay Moment the Fees set forth in the Order Form using the payment method specified by Moment. Unless otherwise agreed by the Parties, the Fees shall be locked for the Initial Term.
Moment will notify Customer of any changes to the Fees that will apply to a Renewal Term, at least sixty (60) calendar days before such Renewal Term begins. If Moment does not notify Customer of any such changes, the Fees for such Renewal Term will be 105% of the Fees that were in effect for the last year of the immediately preceding Term.
Customer shall pay the Fees in accordance with the invoice schedule set forth on the Order Form.
All payments are due as specified in the Order Form. Customer is solely responsible for any applicable sales, use or other taxes or charges related to the payment of the Fees and for the use and receipt of the Data Product or Moment API. 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 Customer that are more than seven (7) calendar days delinquent.
For clarity, the parties agree that unpaid payments due from Customer 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, Customer shall maintain books and records in connection with any use of the Data Products or its components.
RIGHT TO AUDIT.
During the Term 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 the books and records of Customer that relate to the terms, conditions and obligations of this Agreement upon thirty (30) calendar days advance written notice to Customer.
Moment and its agents shall have the right to conduct additional audits during a particular calendar year and subsequent calendar years if an initial 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 Customer has breached the terms and conditions of this Agreement in any material aspect, then Customer 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 Customer’s normal business hours, in accordance with Customer’s policies and procedures, and in a manner designed to limit disruption to Customer’s operations.
TERM. This Agreement is effective as of the Effective Date and shall continue in full force and effect for the Initial Term set forth in the Order Form, unless earlier terminated as set forth herein.
After the Initial Term, this Agreement shall automatically renew each time for consecutive terms equal to the time period of the Initial Term (each, a “Renewal Term”), unless terminated by a Party on written notice to the other Party at least thirty (30) calendar 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) calendar days after the impacted Party gives the other Party written notice of such breach.
EFFECT OF TERMINATION. Upon termination of this Agreement:
All rights or licenses granted by Moment to Customer hereunder shall immediately terminate and Customer shall: (i) immediately cease all access to and use of the Moment IP, and no longer offer any such access to or use of the foregoing to Clients; (ii) remove all Moment IP and all copies and portions thereof in all forms and types of media from the Customer Apps; and (iii) purge all archived Moment IP from the Customer Apps or from any other portion of Customer’s systems and/or archives within fifteen (15) calendar days.
Customer shall immediately pay any Fees plus accruals (as set forth in Section 7) due and owing, and
The Receiving Party shall either return to the Disclosing Party (or, at the Disclosing Party’s instruction, destroy and provide the Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any Confidential Information of the Disclosing Party.
SURVIVAL. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 7 (“Financial Terms”), Section 12 (“Effect of Termination”), this Section 13 (“Survival”), Section 14 (“Ownership”), Section 15 (“Representations and Warranties”), Section 16 (“Disclaimer”), Section 17 (“Limitation of Liability”), Section 18 (“Indemnification”), Section 19 (“Confidentiality”), and Section 20 (“General Provisions”).
OWNERSHIP.
Moment reserves and, as between the Parties shall solely own all right, title and interest, including all Intellectual Property Rights, in and to the Moment IP, including without limitation any copy, translation, modification, enhancement, upgrade, adaptation, or derivation thereof.
Customer has no rights with respect to the Moment IP other than those limited rights expressly granted hereunder. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
At Moment’s expense and reasonable request, during and after the Term, Customer shall assist and cooperate in all respects (and shall cause its employees and subcontractors to assist and cooperate with Moment in all respects) to protect its Intellectual Property Rights in the Moment IP, and will execute documents (and will cause its employees and subcontractors to execute documents), and will take such further acts reasonably requested by Moment to enable Moment to acquire, perfect, maintain and enforce Moment’s Intellectual Property Rights in and to the Moment IP. Customer hereby appoints the officers of Moment as Customer’s attorney-in-fact to execute documents on behalf of Customer and its employees and subcontractors for this limited purpose, with such power coupled with an interest.
Customer agrees to notify Moment promptly in writing of any:
unauthorized access to or use of the Data Products about which Customer becomes aware, or
claim that the Data Products or any component parts infringes on any copyright, trademark or other contractual or statutory or common law right.
REPRESENTATIONS AND WARRANTIES.
Mutual 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; and
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
it has all necessary rights and authorizations to grant the rights and licenses contemplated by this Agreement.
Moment Representations and Warranties.
Moment represents and warrants to Customer that:
The Data Products conform in all material respects to any descriptions set forth in the Order Form.
That it will use reasonable efforts to provide access to Moment IP on a timely basis.
That it will use commercially reasonable efforts to ensure that the Data Products shall be free from any viruses, worms, Trojan horses, or other harmful or malicious code or components; and
As Customer’s sole and exclusive remedy and Moment’s sole and exclusive obligation in connection with any breach of this Section 15(b), Moment will promptly re-perform any non-conforming services.
It is not acting as an investment advisor, as defined in 15 U.S.C. §80b–2(a)(11) or as broker or dealer under 15 U.S.C. §78c(a)(4) or (5).
Customer represents and warrants to Moment that:
Its use of the Moment IP as contemplated hereunder will not violate the Intellectual Property Rights or any other right of a third-party;
It is not involved in any legal proceeding relating to the Customer Apps; and
It is not aware of any facts or circumstances that might lead to a legal proceeding relating to the Customer Apps.
For purposes of its use of the Moment IP, Moment is not acting as an investment advisor, as defined in 15 U.S.C. §80b–2(a)(11) or a broker or dealer under 15 U.S.C. §78c(a)(4) or (5).
DISCLAIMER.
ALTHOUGH MOMENT OBTAINS THE THIRD PARTY DATA FROM SOURCES THAT IT CONSIDERS TO BE RELIABLE, CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT MOMENT DOES NOT PERFORM ANY AUDIT OR VERIFY ANY THIRD PARTY DATA.
THE MOMENT IP IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 15.a. AND SECTION 15.b., MOMENT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE MOMENT IP, ITS ABILITY TO MAKE AVAILABLE OR DELIVER THE MOMENT IP OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, 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 WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
THE DATA PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED FOR ANY OTHER PURPOSE, INCLUDING PURCHASE, SALE OR RETENTION OF ANY CURRENCY, SECURITY, COMMODITY OR OTHER FINANCIAL PRODUCT AND THEIR PROVISION DOES NOT CONSTITUTE INVESTMENT ADVICE OR AN OFFER OR A SOLICITATION OF AN OFFER TO BUY OR SELL ANY CURRENCY, SECURITY, COMMODITY OR OTHER FINANCIAL PRODUCT.
ANY OPINIONS OR ASSERTION CONTAINED IN THE DATA PRODUCTS DO NOT REPRESENT THE OPINIONS OR BELIEFS OF MOMENT OR ITS AFFILIATES OR OF ANY OF THEIR RESPECTIVE EMPLOYEES, PRINCIPALS OR INVESTORS. THE DETERMINATION OF THE SUITABILITY OF THE DATA PRODUCTS FOR ANY USE, AND ALL DECISIONS MADE AS A RESULT OF USE OF THE DATA PRODUCTS, IS THE RESPONSIBILITY OF THE USER OF THE INFORMATION AND THE USER OF THE INFORMATION ASSUMES ALL RISK OF DAMAGE OR LOSS RESULTING FROM THE USE OF THE DATA PRODUCTS.
GIVEN THE GENERAL ABSENCE OF FIXED INCOME DATA AND THE UNCERTAINTY SOMETIMES ASSOCIATED WITH SUCH DATA, THE DATA PRODUCTS MAY INVOLVE DISCRETIONARY ASSUMPTIONS MADE BY MOMENT. SUCH ASSUMPTIONS AS WELL AS THEIR CORRESPONDING OUTCOMES MAY BE INCORRECT, LACK COMPLETE AND/OR FULL INFORMATION OR MAY BE UNDULY RELIANT ON LIMITED INFORMATION SELECTED AT MOMENT’S DISCRETION.
LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO BREACH OF CONFIDENTIALITY, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CUSTOMER OR CLIENT’S VIOLATION OF MOMENT’S INTELLECTUAL PROPERTY RIGHTS, OR CUSTOMER’S BREACH OF SECTIONS 2, 3 OR 4: (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON MAKING A CLAIM, “THIRD-PARTY CLAIMS”) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, AND (II) EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE FEES PAID TO MOMENT HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM.
INDEMNIFICATION.
Customer shall defend, indemnify, and hold harmless Moment, its Affiliates, and its and their respective officers, directors, and employees (each, “Indemnified Party”, collectively, the “Indemnified Parties”) from and against any and all damages, costs, expenses and Third-Party Claims including reasonable attorneys’ fees, judgements arbitral adjudications and settlements (collectively, “Losses”) incurred by any Indemnified Party in connection with any claim, suit, or proceeding by a third-party (each a “Claim”) to the extent such Claim is based upon or arising from (i) Customer’s or a Client’s use of the Moment IP to the extent such use was not in accordance with this Agreement; and (ii) Customer’s or a Client’s negligence, willful misconduct or violation of law or government or industry regulation (whether issued by a government, a self-regulatory organization, recognized securities or commodities exchange or similar authoritative entity).
Each Indemnified Party shall promptly notify the Customer in writing of any Claim for which the Customer may have obligations under this Section; provided, however, that any failure of such Indemnified Party to provide prompt written notice pursuant to this Section shall excuse Customer only to the extent that it is materially prejudiced thereby.
Each Indemnified Party shall reasonably cooperate with Customer, at Customer’s expense, with regard to the defense of any Claim.
In agreement with the Indemnified Parties, Customer may settle or otherwise dispose of any Claim. In no event, however, may Customer agree to any settlement of any Claim for which it has agreed to provide indemnification under this Agreement if such settlement would impose any liability, obligation, or admission upon any Indemnified Party, without such Indemnified Party’s prior, written consent, which shall not be unreasonably withheld.
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, Affiliated Entity’s employees or professional advisors of the Receiving Party or of an Affiliate.
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 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.
GENERAL PROVISIONS.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and nothing herein expressed or implied will give or be construed to give any person, other than the Parties, any legal or equitable rights hereunder.
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.
Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer except to an entity under common control, in whole or in part, without Moment’s prior written approval.
Entire Agreement. This Agreement constitutes the entire agreement among the Parties and with respect to the subject matter hereof, and supersedes all other prior agreements or undertakings with respect thereto, both written and oral.
Construction.
Headings are for ease of reference only and will not form a part of this Agreement.
This Agreement has been entered into by the Parties after consultation with their respective counsel and the Parties agree that it will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party.
In the event there are any unresolvable inconsistencies between the terms of the Order Form and the Software and Data License Terms, the terms of the Order Form shall prevail.
Amendments. The Software and Data License Terms may be updated, amended and/or supplemented periodically by Moment by publication on its website (www.withmoment.com/terms-of-service/software-and-data-license-terms). All such updates, amendments and/supplements shall apply to the Agreement and be binding upon the Parties.
Severability. If any provision of this Agreement conflicts with governing law or if any provision is held to be null, void, or otherwise ineffective or invalid by a court of competent jurisdiction:
Such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with Applicable Law, and
The remaining terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect.
Force Majeure. Moment shall have no responsibility or liability for any delays or interruptions in or failures of its performance under this Agreement beyond its reasonable control, including, acts of God, pandemics, acts of governmental authority, fire, acts of war, terrorism, flood, strikes, severe or adverse weather conditions, power failures or communications line or network failures.
Further Assurances. Each Party covenants and agrees on behalf of itself, its successors, and its assigns, without further consideration, to prepare, execute, acknowledge, file, record, publish, and deliver such other instruments, documents, and statements, and to take such other action as may be required by Applicable Law or reasonably necessary to effectively carry out the purposes of this Agreement.
Counterparts. The Order Form may be executed in counterparts (which may be exchanged electronically), each of which will be deemed an original, but all of which together will constitute the same Order Form.
ANNEX A - USE OF ARTIFICIAL INTELLIGENCE
For the purposes of this Agreement,
“AI” means any program or system that is intended to mimic human cognitive functions and abilities and that is intended to generate data, mine data, identify patterns in data, or produce insights or correlations, or make predictions, recommendations, or decisions.
“Customer AI” means the AI utilized by Customer to
identify information necessary for Customer to provide adhoc information to its retail investors, and
clean up issuer names to make them more human-readable and to reformat data to extract semantic meaning from unstructured, non-uniformed and inconsistent data.
“Output” means any data or other material that is produced by the Customer AI in furtherance of the use rights as set out in this Agreement.
Moment acknowledges and permits Customer, solely during theTerm, to use the Data Products as an input to Customer AI exclusively for the purposes set forth in 2.a. and 2.b., above in connection with Customer’s internal business purposes only in a manner consistent with the DATA USE CASE specified in the Order Form.
As a condition of and in connection with the aforementioned use of the Data Products in conjunction with Customer AI:
Customer shall set up a secure environment designed in accordance with good industry practice within Customer’s own information technology systems or third-party hosted platforms (provided that (a) such third-party does not have access to Customer AI or the Data Products in the environment, and that no other access to the environment is given to any other third-party and (b) Customer shall be liable for any use, misuse, or security breaches involving the Data Products on such third-party platform) (the “Internal Environment”). Any Customer AI shall be hosted and retained within the Internal Environment only, and such Customer AI shall be accessible only by Customer’s employees and subcontractors.
Customer represents and warrants that each Customer AI and Output: (a) does not and will not provide material or data bearing any resemblance to the Data Products (including any trademarks or symbology), (b) cannot be reverse engineered, disassembled or decompiled such that a third-party may access the Data Products, (c) cannot be used in a manner which could be a substitute for the Data Products, (d) cannot be used in a manner which competes with and/or is otherwise comparable to the Data Products or in the creation of price assessments and/or price indices; and (e) will not be used, portrayed, or promoted in a way that implies Moment’s, its affiliates’, and/or Third-Party Data providers’ review, monitoring, sponsorship, endorsement, promotion or sale of such Customer AI or Output, and Customer shall include a disclaimer to that effect. Customer shall not use the Customer AI or Output to provide services to any third-party if such services would replace the need for such third-party to have a license to the Data Products.
Customer represents and warrants that its use of the Data Products in conjunction with Customer AI does not and will not, in any manner (a) tarnish, blur or dilute the trademarks or associated goodwill of Moment; or (b) appeal to prurient interests or, in Moment’s reasonable opinion, otherwise be offensive or unethical (e.g., for fake news, deep faking/impersonations, plagiarism, micro targeting, bias/discriminatory outcomes, weapon manufacture or guidance systems, etc.).
Customer shall not use the Data Products or Customer AI to learn how Moment formats, links or organizes Data Products to then independently collect, validate, homogenize and format independently sourced information or other third-party data as substitute for the Data Products.
Customer represents and warrants that the Customer AI does not or following the expiry or termination of the Order Form will not have the ability to produce copies of or regurgitate the Data Products or any parts thereof, without having access to such Data Products or any parts thereof.
In addition to Customer’s indemnification obligation set out in the Agreement, Customer shall indemnify and defend Moment and their Third-Party Data providers from and against any and all costs, claims, damages or liabilities (including reasonable attorneys’ fees) arising out of any claim or litigation against Moment or Third-Party Data providers arising out of any access to, use or distribution of any or all of the following: (a) the Data Products, (b) Customer AI, (c) Outputs.
Customer shall cooperate with all reasonable requests by Moment to add to or delete portions of the Data Products from the Customer AI or Output (including, but not limited to, adding further disclaimers) in order to comply with applicable laws, rules, regulations, or Moment’s policies.
Upon termination of this Order Form, Customer must immediately stop using any Data Products and shall (i) purge, destroy, delete and/or expunge the Data Products, Output and any portion or copies thereof from all electronic systems and databases, (ii) ensure that Clients purge, destroy, delete and/or expunge the Output and any portion or copies thereof from all electronic systems and databases, in each case except as required for regulatory or compliance purposes which shall be held subject to the confidentiality terms of the Agreement. Upon request by Moment, Company shall promptly certify in writing that it and the Clients has/have complied with this requirement.
ANNEX B - THIRD PARTY DATA TERMS
Additional Contract Terms in Connection with the Use of the CUSIP Database
“Subscriber agrees and acknowledges that the CUSIP Database and the information contained therein is and shall remain valuable intellectual property owned by, or licensed to, CUSIP Global Services (“CGS”) and the American Bankers Association (“ABA”), and that no proprietary rights are being transferred to Subscriber in such materials or in any of the information contained therein. Any use by Subscriber outside of the clearing and settlement of transactions requires a license from CGS, along with an associated fee based on usage. Subscriber agrees that misappropriation or misuse of such materials will cause serious damage to CGS and ABA, and that in such event money damages may not constitute sufficient compensation to CGS and ABA; consequently, Subscriber agrees that in the event of any misappropriation or misuse, CGS and ABA shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which CGS and ABA may be entitled.”
“Subscriber agrees that Subscriber shall not publish or distribute in any medium the CUSIP Database or any information contained therein or summaries or subsets thereof to any person or entity except in connection with the normal clearing and settlement of security transactions. Subscriber further agrees that the use of CUSIPnumbers and descriptions is not intended to create or maintain, and does not serve the purpose of the creation or maintenance of, a master file or database of CUSIP descriptions or numbers for itself or any third-party recipient of such service and is not intended to create and does not serve in any way as a substitute for the CUSIP MASTER , DATABASE, INTERNET, ELECTRONIC Services and/or any other future services developed by CGS.”
“NEITHER CGS, ABA NOR ANY OF THEIR AFFILIATES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN THE CUSIP DATABASE. ALL SUCH MATERIALS ARE PROVIDED TO SUBSCRIBER ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE NOR WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH MATERIALS. NEITHER CGS, ABA NOR THEIR AFFILIATES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ERRORS OR OMISSIONS NOR SHALL THEY BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF CGS, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEE PAID BY SUBSCRIBER FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CGS AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL.”
“Subscriber agrees that the foregoing terms and conditions shall survive any termination of its right of access to the materials identified above.”
“In the event Subscriber has a CGS License Agreement that permits broader rights than those granted above, then the terms of that Subscriber’s CGS License Agreement shall govern such Subscriber’s use of the CUSIP Database and/or any information contained therein for so long as such agreement remains in effect.”
Additional Contract Terms in Connection with the Use of Third Party Provider II Database
The following fields, if included in the Data Products are provided by the Third Party Provider II identified in the order form, or any of the Third Party Provider II's subsidiaries.
Important information regarding the use of Third Party Provider II data:
Third Party Provider II, their affiliates nor any of their suppliers shall have any liability for the accuracy or completeness of the information or software furnished through the Data Products, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages;
Third Party Provider II products, data, services and software are not investment advice and a reference to a particular investment or security, a credit rating or any observation concerning a security or investment provided in connection with the products, data, services and software is not a recommendation to buy, sell or hold such investment or security or make any other investment decisions;
Third Party Provider II, their affiliates or their suppliers have exclusive proprietary rights in the Third Party Provider products, data, services and software and any information and software received in connection therewith;
Customer shall not use or permit anyone to use the Third Party Provider II products, data, services and software for any unlawful or unauthorized purpose;
The Third Party Provider II products, data, services and software are being provided for Customer’s internal use only and Customer is not authorized or permitted to distribute or otherwise furnish such information or software to any third-party without prior written approval of Third Party Provider II;
Access to Third Party Provider II's products, data, services and software is subject to termination in the event that any agreement between Moment and Third Party Provider II terminates for any reason.
To the extent any Derived Data created by Customer includes as input Third Party Provider II data, Customer is required to promptly purge and permanently delete the Derived Data from all electronic systems (save to the extent a Customer is required to retain any data or information pursuant to applicable law or regulation, provided that any data so retained shall not be used or distributed for any purpose and shall be maintained in a confidential manner), and to provide all reasonable cooperation to Third Party Provider II to verify compliance with this obligation, and
Customer is required to include these contractual provisions in its agreements with Clients.
Version Dated: October 16, 2024