Master Services Agreement

INNERMOST MASTER SERVICES AGREEMENT

This Innermost Master Services Agreement (this “Agreement”) is entered into by and between Innermost, Inc., (“Innermost”) and the Customer identified on an Order (“Customer”), and is effective as of the last date of signature on an Order (“Effective Date”).

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, AND THAT ALL REFERENCES TO “CUSTOMER,” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE.

1. SERVICES.

   1. Access. Commencing on the Effective Date of this Agreement, Innermost may make available to Customer certain Innermost software-as-a-service solutions hosted by Innermost (the “Service”) for use by Customer within the use limitations set forth in this Agreement and in the Service itself, and as set forth in one or more orders accepted by Innermost (each an “Order”).
   2. Restrictions and Conditions. Customer shall not, directly, indirectly: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Innermost technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with the Innermost products and services; (f) circumvent or disable any security features or functionality associated with Service; or (g) use the Service in any manner prohibited by law. All rights not expressly granted to Customer are reserved by Innermost, its suppliers and licensors.
   3. Implementation Services. Additional services may be purchased from Innermost, such as onboarding, configuration, consulting, or training services (“Implementation Services”), under an applicable Order and accompanying Statement of Work referencing this Agreement. For clarity, Innermost has no obligation to support Customer’s own technology, internal infrastructure, provide free training, or provide consulting on Customer created content or third-party technologies and services unless mutually agreed to in writing via an approved Order or Statement of Work.
   4. Support Services. If Customer needs support with its use of the Service (“Support Services”), Customer may contact Innermost by email at support@innermost.com. Innermost’s standard support is available Monday through Friday, between the hours of 8:00 am and 5:00 pm Central Time, excluding Innermost recognized holidays.

2. PROPRIETARY RIGHTS

   1. Innermost.
      1. As between Innermost and Customer, all right, title and interest in the Service, Implementation Services, Support Services and any other services or materials furnished or made available hereunder or otherwise in connection with or accessible through the Service, and all modifications and enhancements thereof, including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Innermost or Innermost’s licensors and providers, as applicable.
      2. If Customer provides any ideas, suggestions, feedback, or proposals (collectively, “Feedback”), Customer hereby assigns to Innermost on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in such Feedback, and Innermost is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
      3. Customer agrees that Innermost may collect usage information based upon Customer’s use of the Service, which is converted to an aggregated, anonymized form (“Aggregated Anonymous Usage Data”). Innermost may use, retain and make available Aggregated Anonymous Usage Data for Innermost’s business purposes (including, without limitation, for purposes of developing, improving, testing, operating, promoting and marketing Innermost’s products and services).
   2. Customer. As between Innermost and Customer, all right, title and interest in electronic data and information supplied by or on behalf of Customer to the Service (“Customer Data”), belong to and are retained solely by Customer. Customer hereby grants to Innermost a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Innermost to provide the Service, Implementation Services, or Support Services (as applicable) to Customer, to prevent or address service or technical problems, provide Service improvements, or otherwise in accordance with Customer’s instructions. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership and rights to use of all Customer Data.

3. SECURITY. Innermost will use commercially reasonable efforts to maintain the security and integrity of the Customer Data by implementing and maintaining reasonable, industry standard security measures, including standard systems and procedures designed to test and monitor Innermost’s systems and detect, prevent and respond to attacks, intrusions or other systems failures and a practice of regularly assessing the sufficiency of Innermost’s security systems, policies and procedures, in each case as appropriate to the nature of the Customer Data. If either Innermost, on the one hand, or Customer or any Authorized User, on the other hand, become aware that any confidential Customer Data is accessed or disclosed without authorization, such party will notify the other party of such unauthorized access or disclosure without undue delay and cooperate with the other party in the exercise of commercially reasonable efforts to remediate such unauthorized access or disclosure to the extent that such remediation is within such party’s control. Use of the Service is subject to the Innermost Privacy Policy https://app.innermost.com/privacy, which governs the collection, use, and protection of Personal Data submitted through the Service. By accessing the Service, Customer consents to Innermost’s collection and use of Personal Data as described in the Innermost Privacy Policy which is hereby incorporated by reference.

4. CONFIDENTIALITY. Each party (the “receiving party”) understands and agrees that in connection with this Agreement it may be provided or may otherwise discover or have access to non-public or proprietary information of the other party (the “disclosing party”), including but not limited to, business plans, strategies, projects, models and analyses, financial information, technical specifications, and systems information. Any such information that is disclosed to, revealed to or learned by the receiving party in writing or orally, shall be deemed “Confidential Information” hereunder. For the avoidance of doubt, (a) the Services, Implementation Services, and Support Services, and pricing are Innermost’s confidential information, and (b) Customer Data is the Customer’s Confidential Information. The receiving party agrees that: (i) all of disclosing party’s Confidential Information shall remain the exclusive property of the disclosing party; (ii) it shall maintain, and shall use reasonable care to cause its employees, contractors and agents to maintain, the confidentiality and secrecy of the disclosing party’s Confidential Information; (iii) only disclose Confidential Information to its (A) employees and employees of any legal entity that it controls, controls it, or with which it is under common control and (B) agents, contractors and legal and business advisors who have a need to know; (iv) it shall use the disclosing party’s Confidential Information only in connection with the Services, Implementation Services, or Support Services and as otherwise permitted under this Agreement; (v) it shall not, and shall use reasonable care to ensure that its employees, contractors and agents do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the disclosing party’s Confidential Information; and (vi) it shall return or destroy all copies of the disclosing party’s Confidential Information upon request of the disclosing party, subject to the applicable provisions of this Agreement, and except to the extent required to comply with applicable law, regulations, or administrative order or the receiving party’s standard computer back-up procedures. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party; (ii) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under the Agreement; (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. If the receiving party is required to disclose any Confidential Information of the disclosing party pursuant to a valid court order, a valid governmental decision or otherwise by law or regulation, the receiving party shall provide a written notice to the disclosing party prior to such disclosure to allow the disclosing party to contest or limit such disclosure, as appropriate.

5. CUSTOMER OBLIGATIONS.

   1. Fees. Customer will pay Innermost the amounts specified in each applicable Order, in accordance with the payment terms as set forth in the Order. All invoices are due upon receipt unless indicated otherwise in the applicable Order. Payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term. Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Customer shall be solely responsible for the payment of any Sales Taxes. In the event Innermost is required to pay Sales Taxes on Customer’s behalf, Customer shall promptly reimburse Innermost for all amounts paid. Fees not paid when due shall be subject to the lesser of (i) a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or (ii) the highest monthly rate permitted by applicable law. Innermost further reserves (without excluding or limiting any other rights and remedies) the right to suspend access to the Service, Implementation Services, or Support Services in the event of an unpaid and undisputed invoice. Amounts payable to Innermost shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Innermost.
   2. Compliance with Laws. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights, or that would subject Innermost to any third party obligations.
   3. Authorized Users; Account Security. The Service is provided to Customer by Innermost solely for use by Customer’s employees who are authorized and permitted to use the Services (“Authorized Users”). Customer will not, and will require all Authorized Users not to, grant access to the Service to any third party. Customer will, and will require all Authorized Users to, implement and employ reasonable procedures and security measures to protect the confidentiality of Customer’s and Authorized Users’ username, password and any other account credentials. Customer will not, and will require all Authorized Users not to, share their account credentials. Customer is solely responsible for ensuring each Authorized User’s compliance with the terms and conditions of the Agreement and will be liable for any violations of the Agreement by Authorized Users. Customer is responsible for all usage or activity of Customer’s and any Authorized User’s account. Customer and each Authorized User will promptly notify Innermost of any known or suspected unauthorized use of, or breach of security with respect to, Customer’s or any Authorized User’s account or the Service, as well as any violation of the Agreement that would reasonably be expected to result in any such breach of security.

6. INDEMNIFICATION.

   1. Innermost Indemnification. Innermost shall indemnify, defend and hold Customer harmless from any claim, action, suit or proceeding made or brought by a third party against Customer that the Service infringes or misappropriates any U.S. patents issued as of the Effective Date or any copyright or trade secret of any third party during the Term of this Agreement (a “Claim”) and any resulting damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) finally awarded in connection with such Claim. Innermost shall have no indemnification or defend obligations, and Customer shall, to the extent permitted by applicable law, indemnify Innermost pursuant to this Agreement, for claims of infringement to the extent arising from (i) any information or data created in accordance with Customer specifications or not created or provided by Innermost (including any Customer Data); (ii) any modification, alteration or enhancement of the Service or information or data provided via the Service in accordance with Customer specifications or by any party other than Innermost; (iii) any combination of the Service or information or data provided via the Service with any other information, data, products, processes, materials or services not provided by Innermost; (iv) Customer’s continuation of allegedly infringing activity after being notified thereof or after being provided modifications, alterations or enhancements that in each case would have avoided the alleged infringement; or (v) Customer’s use of the Service not strictly in accordance with the Agreement. If the Service becomes or, in Innermost’ opinion, may become the subject of any injunction preventing use as contemplated herein, Innermost may, at its option (i) obtain for Customer the right to continue using the Service; or (ii) replace or modify the infringing portions of the Service so that it becomes non-infringing without substantially compromising its principal functions. If options (i) and (ii) of the foregoing sentence are not reasonably available to Innermost, then Innermost may terminate the Agreement with respect to the infringing aspects of the Service upon written notice to Customer and refund to Customer any fees for the Service that were pre-paid for the then-current term, pro-rated for the remainder thereof in respect of such infringing aspects of the Service. This Section 6.a. states the entire liability of Innermost, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property or proprietary rights by the Service or any part thereof or the use or operation thereof.
   2. Customer Indemnification. Customer shall indemnify, defend and hold Innermost, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with (i) a claim which, if true, would constitute a breach of Customer’s obligations under this Agreement; (ii) Customer’s use of the Service; (iii) Customer’s use of the Service in a manner that violates third party rights or applicable law; and/or (iv) a claim that the Customer Data infringes or misappropriates any intellectual property or other proprietary rights of a third-party.
   3. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 6 shall not relieve the indemnifying party of its obligations under this Section 6, however the indemnifying party shall not liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by such delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Further, any indemnification obligation under this Section 6 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.

7. TERM AND TERMINATION.

   1. Term. This Agreement will begin on the Effective Date, and shall continue for the duration set forth in the applicable Order, or until terminated by either party as specified below (the “Initial Term”). The subscription term and any renewal terms for the Service shall be as set forth in an Order. Each subscription term in an applicable Order is a binding financial commitment by Customer, however, Customer may request that Innermost stop the Service and the collection of new Customer Data, and Innermost will accommodate this request, provided that Customer pays for the originally scheduled subscription term.
   2. Termination for Cause. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days of providing written notice thereof.
   3. Effect of Termination. Upon expiration or termination for any reason, Customer shall discontinue all use of the Service, and return any and all software and documentation provided to Customer by Innermost. Within sixty (60) days after termination or expiration of Customer’s subscription to the Services, upon request, Innermost will reasonably assist Customer in retrieving its Customer Data from the Service. After such sixty (60) day period, Innermost will have no obligation to maintain the Customer Data, and may expunge the same, without liability to Customer.

8. WARRANTY AND DISCLAIMER.

   1. Mutual Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
   2. Customer Warranties. Customer represents, warrants and covenants that: (a) it has all requisite legal and corporate power to disclose Customer Data to Innermost as contemplated hereby, and grant Innermost the license to such Customer Data as set forth in this Agreement; (b) it has taken all corporate action necessary for the authorization, execution and delivery of this Agreement; and (c) it has obtained and shall maintain all rights, approvals, licenses, certifications, accreditations and consents necessary to perform its obligations under this Agreement.
   3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE AND ANY INNERMOST TRAINING, IMPLEMENTATION, INSTRUCTION AND SUPPORT OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY INNERMOST, ITS SUPPLIERS AND ITS LICENSORS.

9. Limitation on Liability.

   1. IN NO EVENT WILL INNERMOST BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE, IMPLEMENTATION SERVICES, OR SUPPORT SERVICES. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF INNERMOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
   2. INNERMOST’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED, UP TO THE AMOUNTS PAID BY THE CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES.

10. PILOT PERIOD SPECIAL TERMS. This Section 10 (Pilot Period Special Terms) will only apply if Customer is accessing the Service as part of an evaluation or trial (a “Pilot Customer”). Notwithstanding anything to the contrary in this Agreement, if Customer is a Pilot Customer: (i) upon written notice, either party may terminate this Agreement or any applicable Order for convenience at any time during the pilot period, and (ii) PILOT CUSTOMERS ARE PROVIDED THE SERVICE “AS IS” WITHOUT ANY WARRANTY.

11. GENERAL.

    1. This Agreement shall be governed by Illinois law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary. Any legal suit, action, or proceeding arising out of, or related to, this Agreement shall be instituted exclusively in the applicable state or federal courts in Cook County, Illinois. Customer hereby waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
    2. Customer hereby grants Innermost a non-exclusive, royalty-free license to use Customer's name and Customer’s logo artwork in Innermost’s advertising, press, promotion, and similar public disclosures. If Customer does not wish to allow Innermost the foregoing grant, Customer may object to this right in writing. This provision will survive the termination and/or completion of this Agreement.
    3. This Agreement is binding on the parties to this Agreement, and nothing in this Agreement confers upon any other person or entity any right, benefit or remedy of any nature whatsoever. This Agreement is assignable by Customer only with the Innermost’s prior written consent, which will not be unreasonably withheld.
    4. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service, Implementation Services, or Support Services.
    5. Except with respect to the payment of all fees owed under this Agreement, neither party will be liable for nonperformance or delays of its obligations under this Agreement caused by acts of God, wars, riots, strikes, fires, floods, earthquakes, government restrictions, terrorist acts or other causes beyond its reasonable control. If such delay is caused by circumstances beyond the reasonable control of the party so delaying, the party shall be entitled to a reasonable extension of time for the performance of such obligations.
    6. The failure of Innermost to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. No waiver of any provision of the Agreement will be effective unless in writing and signed by the waiving Party.
    7. The Agreement and the applicable Order is the entire agreement between Customer and Innermost with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Innermost with respect thereto. No modification or amendment of any provision of the Agreement will be effective unless agreed upon by both parties in writing.
    8. All disclaimers, limitations on liability, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this “General” section shall survive termination of this Agreement.
    9. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service or applicable Support Services will immediately terminate, except for those provisions noted above which will continue in full force and effect.
    10. The Agreement may be executed in counterparts (which may be signed and exchanged electronically), each of which will be deemed an original, but which together will constitute one and the same instrument.