Master Service Agreement

 

Tip: If you need our MSA in word format, please send us an email here: sales@getenjoyhq.com

 

NomNom, Inc., dba EnjoyHQ

MASTER SUBSCRIPTION AGREEMENT

This EnjoyHQ Master Subscription Agreement (the “Agreement”) is made as of __________________ (the “Effective Date”) between NomNom, Inc., dba EnjoyHQ, a Delaware corporation (“EnjoyHQ”) and the entity named below (“you”). Between EnjoyHQ and you the Agreement consists of these terms, each order form identifying specifics of your subscription, including any exhibits, and each amendment of any of the foregoing.

WHEREAS, EnjoyHQ is the developer of a user research platform for data-driven teams (the “Service”) provided via www.getenjoyhq.com or any successor website(s) (the “Site”); and WHEREAS, you wish to obtain a subscription to the Service identified below, Subscription descriptions: Annual contract subscription service. Access to customer feedback   and user research platform. Type subscription: Mars Plan

NOW THEREFORE, the parties agree as follows:

1.   USE OF THE SERVICE

1.1   Use Rights. You may use the Site and Service in accordance with the terms provided on each order form that has been executed by you and EnjoyHQ. The Site, Service and any Content (as defined below) made available on or through the Service are provided only for (a) your own personal use, (b) your internal business use or (c) if you are a Managed Service Provider (as defined below), use in the support of your customers that use the Service for their own personal or internal business use, all in compliance with all applicable laws, rules and regulations.

1.2    Appropriate Use. (a)  You promise not to use the Service for any purpose that is unlawful or prohibited by this Agreement. You agree to abide by all applicable local, state, national and international laws and regulations. By way of example, and not as a limitation, you agree not to (or permit others to) : ( a) take any action or ( b) upload, download, post, submit or otherwise distribute or facilitate distribution of any “Submissions” such as, without limitation, postings to the EnjoyHQ Community, comments, text, communications, software, images, sounds, data or other materials or information) using any communications service or other service available on or through the Service, that: (i)  infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane; (iii)  constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (iv)  imposes an unreasonable or disproportionately (in the sole judgment of EnjoyHQ) large load on EnjoyHQ’s computing, storage or communications infrastructure, or attempts to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or otherwise; (v)  contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data or other information of EnjoyHQ or any third party; or (vi)  impersonates any person or entity, including, without limitation, any employee or representative of EnjoyHQ.

1.3  You may not submit to the Service (or use the Service to collect): (i) any patient, medical or other protected health information regulated by HIPAA or any similar laws, rules or regulations in any jurisdiction; or (ii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) through (ii), collectively, “Sensitive Data”).

1.4   Use Restrictions. (a)  You will not use any robot, spider, scraper or other automated means to access the Service for any purpose without EnjoyHQ’s express written permission. Additionally, you will not: (i) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (ii) bypass any measures EnjoyHQ may use to prevent or restrict access to the Service. (b)  You shall not (and you shall not permit others to), directly or indirectly, modify, translate, decompile, disassemble, or reverse engineer any part of the Service or any Content available through the Site (except to the limited extent applicable laws specifically prohibit such restriction); or copy, rent, lease, distribute, or otherwise transfer any or the rights that you receive hereunder. In addition, you shall not remove any proprietary notices or labels.   (c)   Except as expressly authorized by EnjoyHQ in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from Content.

1.5 Please report any violation of this Agreement by contacting EnjoyHQ at support@getenjoyhq.com

1.6 Customer Data. When you import Customer Data to the Service, you: (a)  Represent and warrant to EnjoyHQ that you own or otherwise have the right to post such Customer Data. (b) Acknowledge that you are solely responsible for the Customer Data you post on or through the Service. EnjoyHQ does not endorse and has no control over the Customer Data posted or otherwise provided by users. EnjoyHQ reserves the right to, immediately and without notice, delete or otherwise remove any Customer Data that, in EnjoyHQ’s sole discretion it violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person.

1.7   Managed Service Providers. (a)  “Managed Service Provider” means a service provider that manages or administers the EnjoyHQ account of a third party for the third party’s internal business or personal use only. (b) If you desire to make any other commercial use of the Site or the Service, including but not limited to customizing, selling or distributing the Service (whether as a stand-alone service or bundled with your services) for consideration of any kind or for no consideration, you must first obtain EnjoyHQ’s specific written approval in advance. The Service is intended for use described above only and may not be used in connection with any other commercial endeavours except those that are specifically endorsed or approved by EnjoyHQ in writing. Except for distributions for the use described above to your employees or independent contractors for your internal business use and in compliance with this Agreement, you may not distribute or otherwise commercially exploit or make available to any third party the Service, or any part thereof, in any way. (c) If you are a Managed Service Provider, you (i) shall not use, administer or manage the Service in violation of this Agreement, (ii) acknowledge and agree that the EnjoyHQ Service account is for the benefit of the EnjoyHQ customer only and upon any termination of your relationship with your customer, the customer will be free to use, manage and administer the Service on its own, (iii) agree not to charge for the Service and to ensure that your customers understand that any fees that you charge are solely for your services and not for the Service, (iv) shall not frame this Site, the Service or its content in any manner. Any unauthorized use of the Service is expressly prohibited. For purposes of this Agreement, “Content” includes, without limitation, any information or data (including, information or data generated or otherwise provided by EnjoyHQ or its partners through the Service or related services, or otherwise available through the Site that are not Customer Data (as defined below)), text, software, scripts, graphics, photos, documents and interactive features.

2.1   As a condition to using the Service, you may be required to register with EnjoyHQ by providing information to be specified during the registration process and entering an email address and selecting a password and account name (“EnjoyHQ User ID”). You shall provide EnjoyHQ with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your EnjoyHQ account. In addition, you agree to maintain and update your registration information to ensure that it is accurate and complete at all times.

2.2  EnjoyHQ reserves the right to refuse registration of, or cancel an EnjoyHQ User ID in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your EnjoyHQ password. You may never use another user’s account without such other user’s express permission. You will immediately notify EnjoyHQ in writing of any unauthorized use of your account, or other account related security breach of which you are aware.

3.1 You will pay EnjoyHQ the applicable fees described in each order form (the “Fees”). Except as otherwise provided herein all fees are noncancelable and nonrefundable. EnjoyHQ will bill through an invoice. Full payment for invoices issued in any given month must be received by EnjoyHQ within 30 days after your receipt of the invoice by email. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. You are responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on EnjoyHQ’s net income. If you are required to pay any such taxes, you shall pay such taxes with no reduction or offset in the amounts payable to EnjoyHQ hereunder. If an applicable tax authority requires EnjoyHQ to pay any taxes that should have been payable by you, EnjoyHQ will advise you in writing, and you will promptly reimburse EnjoyHQ for the amounts paid. If you believe that EnjoyHQ has billed you incorrectly, you must contact EnjoyHQ no later than 60 days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to EnjoyHQ’s customer support department. Without limiting its other remedies, EnjoyHQ may suspend Services for nonpayment of fees.

3.2   By using the Site, you consent to receiving electronic communications from EnjoyHQ. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to our Site and Service. These electronic communications are part of your relationship with EnjoyHQ and you receive them as part of your subscription to the Site and/or Service. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

4. THIRD PARTY SITES The Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. These other websites are not under EnjoyHQ’s control, and you acknowledge that EnjoyHQ is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by EnjoyHQ or any association with its operators. You further acknowledge and agree that EnjoyHQ shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.

5. OWNERSHIP RIGHTS

5.1 What You Own. You retain all rights to information you upload to the Service (“Customer Data”). EnjoyHQ disclaims all ownership and other rights as to Customer Data, except any limited rights granted by you to provide the Service.

5.2 What EnjoyHQ Owns. (a)The Service and Site are the proprietary intellectual property of EnjoyHQ and its licensors, protected by copyright and other intellectual property laws. Except for the rights granted herein, EnjoyHQ and its licensors retain all right, title and interest, including all intellectual property rights, in the Service and Site (and any derivative works of or improvements to any of the foregoing created by or for EnjoyHQ) and the documentation. Even if the terms “purchase” and “sale” are used, you do not receive ownership rights in the Service and Site and have only those use rights in this Agreement. EnjoyHQ retains all rights not explicitly granted herein. (b) EnjoyHQ hereby grants you a limited, revocable, non-sublicensable license to reproduce and display the Content (excluding any software code) solely for your personal and non-commercial use as expressly authorized by this Agreement; provided, that you retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any Content, materials or design elements on the Site for any other purpose is strictly prohibited without the express prior written permission of EnjoyHQ. (c)  EnjoyHQ has no obligation to monitor the Site, Service, or Content. Use of the Content for any purpose not expressly permitted in this Agreement is prohibited. Any rights not expressly granted herein are reserved.

6. CONFIDENTIALITY

6.1  Confidential Information. Subject to the limitations set forth in Section 6.2, all information disclosed by one party to the other party during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information”. The existence and terms of this Agreement are Confidential Information of both parties.

6.2  Exceptions. Information will not be considered Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) publicly available through no act or omission of the receiving party; (b) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (c) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information.

6.3  Nondisclosure. The parties agree to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and service providers performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall, to the extent permitted, promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 6.3 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.

7.   TERMINATION

7.1  Termination for Convenience. You may terminate your subscription to the Site and Service at any time and you will not be obligated to pay any additional fees for upcoming subscription renewal periods but any subscription fees you have paid in advance will not be refunded. If you wish to terminate this Agreement or your EnjoyHQ account (if you have one), you may simply cancel your account by logging into your account and clicking the delete account link in the accounts settings tab of your account screen.

7.2 Termination for Cause. You Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

7.3   Effect of Termination. Following termination of the Agreement you may use the Service for up to two weeks to export your Customer Data, after which your Customer Data will be permanently expunged. Within two weeks following the termination date, you shall, at EnjoyHQ’s option, return to EnjoyHQ or destroy (and certify to EnjoyHQ in writing as to such destruction) all copies of materials embodying or reflecting the Service, documentation and any other EnjoyHQ Confidential Information.

7.4  Survival. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

8.     NO WARRANTIES

8.1   Authority. Each of EnjoyHQ and you represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation and shall continuously remain in good standing during the term of this Agreement.

8.2   Protection of Customer Data. EnjoyHQ will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by EnjoyHQ personnel except (a) to provide the Service and to prevent or address service or technical problems, or (b) as you expressly permit in writing.

8.3 Warranty Exclusions. EnjoyHQ is not obligated to correct errors caused: by unauthorized modification to the Service, if you use the Service other than as described in the documentation, by non-EnjoyHQ software or services, or by combining the Service with any other hardware or service not authorized by EnjoyHQ in writing. 8.4  Disclaimer. Except as provided herein the Service, Site and all Content are provided “as is” and “as available”. The Service, Site and all Content are provided without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. EnjoyHQ and its agents, partners, suppliers and content providers do not warrant that: (a) any Content or Customer Data, including, without limitation, any results, data, or information obtained through the Service will be accurate, reliable, or complete; (b) any defects or errors will be corrected; (c) the Content or Customer Data are free of viruses or other harmful components; or (d) the results of using the Service will meet your requirements. Your use of the Service is solely at your own risk. 9.              LIMITATION OF LIABILITY 9.1   No Indirect Damages. In no event shall either party, its officers, directors, employees, agents, or suppliers be liable under contract, tort, strict liability, negligence or any other legal theory with respect to the Site, the Services or any Content or products accessible through the Site and Service (i) for any lost profits or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, substitute goods or services (however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), (iii) for any errors, omissions, or inaccuracies in any Content or for any loss or damage of any kind incurred as a result of your use of any Content or Customer Data posted, emailed, transmitted or otherwise made available at or through the Site and Service.

9.2    Direct Damages. In no event shall either party’s aggregate liability arising out of this Agreement, the Site or the Service exceed the fees paid or payable by you to EnjoyHQ during the twelve month period prior to the event giving rise to any claim, and $100 where you are using a trial of the Service.

10.   INDEMNIFICATION

10.1  Indemnification by EnjoyHQ.EnjoyHQ at its own expense will defend or settle any claims, actions and demands brought by anyone other than your Related Party (as defined below) against you and your Related Parties (collectively, the “Claims”) where the third party expressly asserts that the Service: (a) infringes such third party’s trademark or copyright arising under the laws of the United States, or (b) EnjoyHQ misappropriated such third party’s trade secrets in the development of the Service. “Related Parties” means affiliates, successors, assigns, members, shareholders, officers, directors and agents of EnjoyHQ or you, as applicable. If EnjoyHQ believes the Service, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 10.1 applies, then EnjoyHQ may, in its discretion and at its sole expense: (1) procure for you the right to continue using such Service or any applicable part thereof, (2) modify or replace the Service so as to make it non-infringing, or (3) terminate this Agreement and refund to you any unused prepaid fees for periods following the termination date. This section 10.1 states EnjoyHQ’s sole liability to, and your exclusive remedy for intellectual property infringement claims of any kind in connection with the Service.

10.2   Indemnification by You. You at your own expense will defend, indemnify and hold EnjoyHQ and its Related Parties harmless against any liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney’s fees and disbursements) arising out of Claims made or brought by anyone other than an EnjoyHQ Related Party alleging misappropriation, misuse or breach of applicable law related to Customer Data.

10.3  Indemnification Procedure. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a Claim, the party to be indemnified will notify the other party of the Claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The indemnifying party will assume the sole control of defense and settlement of the Claim with counsel reasonably satisfactory to the indemnified party at the indemnifying party’s risk and expense; provided, however, the indemnified party (a) may join in the defense and settlement of the Claim and employ counsel at its own expense, and (b) will reasonably cooperate with the indemnifying party in the defense and settlement of the Claim. The indemnifying party may not settle any Claim without the indemnified party’s written consent unless the settlement (x) includes a release of all covered claims pending against the indemnified party; (y) contains no admission of liability or wrongdoing by the indemnified party; and (z) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items. If both the indemnified party and the indemnifying party are named parties in any action relating to the Claim and the counsel chosen by the indemnifying party cannot represent both the indemnified party and indemnifying party due to any present or potential conflict in representing the interests of both of them, then the indemnifying party will retain separate counsel for the indemnified party.

10.4  Indemnification Exclusions. EnjoyHQ shall not have any indemnification obligation pursuant to this Agreement to the extent a claim is based on: (a) use of any version of the Service other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version thereof that has been made available to you; (b) use of the Service in violation of this Agreement; (c) modifications to the Service made by you; (d) where you continue to use the Service after being notified of allegedly infringing activity or being informed of modifications that would have avoided the alleged infringement; or (e) a third party service or Customer Data.

10.5  ENTIRE LIABILITY. THIS SECTION 10 STATES THE ENTIRE LIABILITY OF THE INDEMNIFYING PARTY, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM BY A THIRD PARTY DESCRIBED IN THIS SECTION.

11.  MISCELLANEOUS

11.1        Governing Law and Venue. This Agreement shall be governed by the laws of the State of California, United States of America without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement will be brought in the federal or state courts in Los Angeles County, California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.

11.2        Integration. This Agreement the entire agreement between you and EnjoyHQ with respect to the Service and use of this Site, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and EnjoyHQ with respect thereto. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable.

11.3        Assignment. This Agreement may not be assigned by either party without the other party’s prior written consent, whether by operation of law or otherwise, except that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party. Any other purported assignment shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.

11.4        No Agency. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

11.5        Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

11.6        Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed electronically or by written signature and delivered in multiple versions, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties have executed this Master Subscription Agreement as of the Effective Date.

 

NomNom, Inc. dba EnjoyHQ		You:  ___________________________
Signature			Signature
Print Name			Print Name
Title			Title

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