MORNING CONSULT®
TERMS AND CONDITIONS
If a valid Morning Consult® Main Services Agreement or other agreement exists between you and Morning Consult, signed by both parties, those terms and conditions take precedence over these Terms unless otherwise agreed by you and Morning Consult under the terms of a specific order form executed by you and Morning Consult. These Morning Consult® Terms and Conditions (“Terms”) may be updated from time to time as set forth herein. We encourage you to refer to these Terms regularly to ensure compliance. These Terms, along with any order form(s) entered into between you and Morning Consult under the terms hereof (each, an “Order Form”) and all schedules and exhibits thereto, constitute the binding agreement (the “Agreement”) between you (“Customer” or “you”) and The Morning Consult LLC (“Morning Consult” or “us” or “we”) with respect to the matters set forth herein and in each such Order Form. These Terms take effect when you click an “I Accept” button or checkbox presented with these Terms, or when you use any of the Services, or upon execution of an Order Form by you and us, whichever occurs first (the “Effective Date”). In the event of any conflict between an Order Form and these Terms, these Terms shall take precedence unless the Order Form makes specific reference to these Terms and the provision(s) it intends to alter, replace, or supersede. For the avoidance of doubt, each Order Form incorporates these Terms by reference and constitutes an individual, separate understanding between you and us.
1. DEFINITIONS.
“Access Link” means any of the hyperlinks available on the Product through which an Authorized User may access the Web Content.
“Affiliate” means, with respect to any party hereto, any person or entity that is directly or indirectly Controlling, Controlled by, or under common Control with such party, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning set forth in the introductory paragraph.
“Authorized User(s)” has the meaning set forth in Section 2(c)(i).
“Claim” has the meaning set forth in Section 7(a).
“Confidential Information” has the meaning set forth in Section 5(c).
“Content” means the reporting and written analysis delivered to Customer in association with one or more purchased MC Licensed Data set(s) as set forth in an Order Form which the Customer Parties may be permitted to access and use in compliance with the terms and conditions of this Agreement.
“CSV” has the meaning set forth in Section 2(d)(v).
“Customer” has the meaning set forth in the introductory paragraph.
“Customer Data” means any information, material, or data, including survey questions, furnished or made available to Morning Consult by Customer to enable, or in connection with, the provision of Professional Services by Morning Consult. Customer will be solely responsible for the accuracy, quality, integrity, and legality of the Customer Data and for the means by which the Customer acquired the Customer Data.
“Customer Indemnitees” has the meaning set forth in Section 7(a).
“Customer Parties” or “Customer Party” means together, or individually, Customer and/or any Authorized User.
“Documentation” means any written or electronic materials relating to the Products, including but not limited to terms of use, manuals, handbooks, product descriptions, specifications, and technical requirements that Morning Consult makes generally available to its customers, if any, as revised from time to time.
“Economic Intelligence Data” means the MC Licensed Data delivered to Customer in connection with Economic Intelligence as set forth in an Order Form, which the Customer Parties may be permitted to access and use in compliance with the terms and conditions of this Agreement.
“Effective Date” has the meaning set forth in the introductory paragraph.
“Feedback” has the meaning set forth in Section 5(d).
“Hosted Website” means a website developed and hosted by Morning Consult at Customer’s request, pursuant to the terms of an Order Form, the content of which may include Customer Data, Work Product, and/or Licensed Data. Access to Hosted Websites shall be licensed to Customer at a morningconsultintelligence.com web address for the term set forth in the applicable Order Form. Notwithstanding anything contained herein to the contrary, Hosted Websites shall not constitute Work Product hereunder, and the parties’ respective ownership rights pertaining to all data contained in any Hosted Website developed hereunder shall be governed by the terms of this Agreement.
“Intelligence API” means the portion of the Products which Customer may use to access MC Licensed Data via an application programming interface in compliance with the terms and conditions of this Agreement.
“Legal Order” has the meaning set forth in Section 11(j).
“Licensed Data” means, without limitation, the text, graphics, statistics, data, Access Links, information, reports, material, content, and intellectual property owned by Morning Consult or licensed by Morning Consult from its third party data providers which the Customer Parties may be permitted to access and use in compliance with the terms and conditions of this Agreement. Licensed Data shall not include any Source Content, Source Site, or Web Content.
“Losses” has the meaning set forth in Section 7(a).
“MC Indemnitees” has the meaning set forth in Section 7(b).
“MC Licensed Data” means Licensed Data that is owned by and proprietary to Morning Consult.
“MC Marks” has the meaning set forth in Section 2(d)(ii).
“Morning Consult” has the meaning set forth in the introductory paragraph.
“Morning Consult Pro” means the portion of the Products, and the associated Content and Licensed Data, available at the pro.morningconsult.com website.
“Order Form” has the meaning set forth in the introductory paragraph.
“Permitted Use” has the meaning set forth in Section 2(d)(i).
“PII” means personally identifiable information.
“Political Intelligence Data” means the MC Licensed Data delivered to Customer in connection with Political Intelligence as set forth in an Order Form, which the Customer Parties may be permitted to access and use in compliance with the terms and conditions of this Agreement.
“Pre-Existing Materials” has the meaning set forth in Section 5(b).
“Products” has the meaning set forth in Section 2(a).
“Professional Services” has the meaning set forth in Section 2(b).
“Proprietary Materials” means the Content, Products, Releases, Documentation, Licensed Data, and any and all enhancements, modifications, additions, or new releases of or to the same.
“Release” means any bug fix, enhancement, maintenance release, error correction, upgrade, update, change, addition, improvement, modification, derivation, extension, new version, successor, or replacement product of or to any component of the Products created by or for Morning Consult and made available by Morning Consult to its customers generally, regardless of how any bug fix, enhancement, maintenance release, error correction, upgrade, update, change, addition, improvement, modification, derivation, extension, new version, successor, or replacement product is marketed or denominated.
“SaaS” has the meaning set forth in Section 2(a).
“Services” has the meaning set forth in Section 2(b).
“Source Content” is an article or material available at a Source Site via an Access Link.
“Source Site” is a third party website on which Source Content is published.
“Term” has the meaning set forth in Section 9(a).
“Usage Data” has the meaning set forth in Section 5(f).
“User ID” has the meaning set forth in Section 2(c)(i).
“Web Content” means any content, including without limitation online news articles, press releases, and social media content available on the open web relating to Source Content and/or a Source Site which (i) may be accessible via a Product through an Access Link, (ii) is not subject to a license between Morning Consult and the owner of the Source Site, and (iii) is not licensed to Customer by Morning Consult.
“Work Product” has the meaning set forth in Section 5(b).
2. SERVICES.
(a) Morning Consult SaaS Products. During the Term, and subject to the terms and conditions of this Agreement, Morning Consult hereby grants Customer a nonexclusive, nontransferable, non-sublicensable, revocable, limited right and license to (i) access remotely via the Internet and use Morning Consult’s proprietary Morning Consult Intelligence software-as-a-service (“SaaS”) platform and/or any other SaaS platforms set forth in an Order Form, including any and all underlying software (together, the “Products”) and (ii) use the Documentation. Morning Consult will make Releases available to customers generally at no additional cost to the extent any such Releases are developed and deployed, at Morning Consult’s sole discretion. The Products are provided in the form of an online service subscription. Customer acknowledges that it is obtaining only a limited right to use the Products and that irrespective of any use of the words “purchase”, “sale”, or similar terms, no ownership rights are transferred to Customer under this Agreement. Customer further acknowledges and agrees that it has no right to obtain a copy of the underlying software of the Products.
(b) Other Services. At Customer’s request, Morning Consult will provide those professional services (the “Professional Services” and together with the Products, the “Services”) described in an Order Form.
(c) Authorized Users.
(i) General. Only Authorized Users may access the Products through a unique username and password, or such other login method Morning Consult may designate from time to time, including without limitation any token or key (the “User ID”). For purposes of this Agreement, an “Authorized User” is a current employee of Customer or its Affiliate(s) who has been given a User ID that has not been revoked. Customer hereby represents that the registration information provided to Morning Consult with respect to each Authorized User shall be accurate and truthful, and Customer shall promptly update the registration information as required to maintain such accuracy. Customer shall ensure that (a) only Authorized Users access the Products and (b) each Authorized User does not (x) share such Authorized User’s User ID, (y) permit any other person to access the Products through such Authorized User’s User ID, or (z) breach the terms of this Agreement.
(ii) Privacy. Morning Consult processes PII of Authorized Users in the course of providing Services under this Agreement pursuant to Morning Consult’s Privacy Policy available here: https://morningconsult.com/privacy-policy/.
(d) Permitted Use & Restrictions.
(i) Permitted Use. Customer may use the Proprietary Materials only for its own internal business purposes in the ordinary course of its business (the “Permitted Use”). Customer is responsible for the use of the Proprietary Materials by the Authorized Users and Customer will immediately notify Morning Consult of any unauthorized use of the Proprietary Materials.
(ii) Accessibility for Professional Services. Authorized Users will be granted limited access to a portion of the Products for the sole purpose of viewing and downloading Customer’s final deliverables resulting from the Professional Services. For the avoidance of doubt, (a) Customer’s final deliverables resulting from the Professional Services and accessed via the Products as described in this Section 2(d)(ii) constitute Work Product, and (b) Authorized Users shall not have access to any additional portion of the Products unless Customer has purchased a subscription to one or more Products, as specifically set forth in an Order Form, that includes such additional access.
(iii) Accessibility for Licensed Data. Authorized Users are permitted to download files containing reports, charts, and graphs, and to export files, in each case, containing the Licensed Data for the Permitted Use only. Customer may utilize Licensed Data for the Permitted Use provided that Morning Consult and each of its third party licensors retain all of their respective copyright, intellectual property and proprietary rights therein. In furtherance of such use, Morning Consult grants Customer a nonexclusive, nontransferable, non-sublicensable, revocable, limited right and license to use Morning Consult’s name, logo, trademarks, trade names, services marks, or other brand marks (the “MC Marks”), as the same may automatically appear on downloaded or exported content, for the sole purpose of attributing Morning Consult as the source of the MC Licensed Data. Customer Parties are prohibited from altering or removing MC Marks from MC Licensed Data or from any files downloaded or exported by an Authorized User that contain MC Marks. Any violation of the prior clause shall constitute a material breach under this Agreement.
(iv) Distribution of Licensed Data (Non-Economic Intelligence Data and Non-Political Intelligence Data). Authorized Users may, in the course of providing services for Customer and for the Permitted Use, provide portions of the MC Licensed Data and Content to employees, clients, or agents of Customer in memoranda, reports, and presentations (provided that MC Licensed Data may not be directly distributed to or shared with competitors of Morning Consult). Each such memorandum, report, and presentation must include a citation crediting Morning Consult as the owner and source of the data or a copyright notice in the following format:
“© [year] Morning Consult.”
Any distribution of Licensed Data that is not MC Licensed Data may only be done in accordance with the terms and conditions of our third party data providers and applicable law. For the avoidance of doubt, the distribution of Economic Intelligence Data and Political Intelligence Data is expressly excluded from this Section 2(d)(iv), and is governed exclusively by Section 2(d)(v) or Section 2(d)(vi), as set forth below.
(v) Distribution of Economic Intelligence Data. Authorized Users may, in the course of providing services for Customer and for the Permitted Use, provide portions of the Economic Intelligence Data and Content to any person in memoranda, reports, and presentations. Each such memorandum, report, and presentation shared with any person who is not an employee of Customer or its Affiliates must include a citation crediting Morning Consult as the owner and source of the data or a copyright notice in the following format:
“© [year] Morning Consult.”
For the avoidance of doubt, Customer Parties and each employee of Customer and its Affiliates are expressly prohibited from sharing, sending, distributing, forwarding, or otherwise transmitting in whole to any third party any Content, e-mails, or comma-separated values (“CSV”) files provided to any such Customer Party or employee in connection with Morning Consult’s delivery of Economic Intelligence Data hereunder.
(vi) Distribution of Political Intelligence Data. Authorized Users may, in the course of providing services for Customer and for the Permitted Use, provide portions of the Political Intelligence Data and Content to any person in memoranda, reports, and presentations. Each such memorandum, report, and presentation must include a citation crediting Morning Consult as the owner and source of the data or a copyright notice in the following format:
“© [year] Morning Consult.”
(vii) Distribution of Morning Consult Pro Content and MC Licensed Data. Authorized Users may, in the course of providing services for Customer and for the Permitted Use, provide portions of the MC Licensed Data and Content accessed via Morning Consult Pro to any person in memoranda, reports, and presentations. Each such memorandum, report, and presentation shared must include a citation crediting Morning Consult as the owner and source of the data or a copyright notice in the following format:
“© [year] Morning Consult.”
For the avoidance of doubt, Customer Parties and each employee of Customer and its Affiliates are expressly prohibited from sharing, sending, distributing, forwarding, or otherwise transmitting any Content accessed via Morning Consult Pro in whole to any third party.
(viii) Restrictions. A Customer Party will not, and will not attempt to, introduce software or automated agents or scripts to the Products so as to produce multiple accounts, generate automated searches, requests or queries, or to strip, scrape, use spiders, or mine data from the Products, nor will a Customer Party utilize the Proprietary Materials for public consumption or provide use of the Proprietary Materials on a service bureau, rental, or managed services basis, or permit direct or indirect access to or use of any Proprietary Materials in a way that circumvents the Permitted Use. A Customer Party will not, and will not attempt to, remove, alter, or obscure any copyright or other proprietary notice or legend contained on or included in any Proprietary Materials, or use the Proprietary Materials in any manner other than as contemplated by this Agreement, or interfere with or disrupt the integrity of any Proprietary Materials. A Customer Party will not, and will not attempt to, use the Proprietary Materials in a manner that is infringing, libelous, obscene, threatening, or otherwise unlawful or tortious, or in violation of third party rights. A Customer Party will not, and will not attempt to, (a) reverse engineer, reverse assemble, disassemble, decompile, unlock, copy, or otherwise attempt to decipher any (A) code used in connection with the Products or (B) underlying ideas or algorithms of the Products, (b) access the Products or use the MC Licensed Data in order to (A) build or enhance a competitive product or service, (B) build or enhance a product or service using similar ideas, features, functions, or graphics of the Products, Economic Intelligence Data, or Political Intelligence Data, or (C) copy any ideas, features, functions, or graphics of the Products, Economic Intelligence Data, or Political Intelligence Data, (c) modify or create derivatives of the Proprietary Materials in whole or in part for any reason (provided, however, that subject to the terms and conditions of the Agreement, including the Permitted Use, such modification or creation of derivatives pertaining to MC Licensed Data is permitted), (d) use the Products to store or transmit material in violation of third party privacy rights, (e) use the Products to store or transmit malicious code or material that is obscene, threatening, or otherwise unlawful or tortious, (f) interfere with or disrupt the integrity or performance of the Products or data contained therein, (g) attempt to gain unauthorized access to the Products or their related systems or networks, (h) use the Products to provide, or incorporate the Products into, any product or services provided by or to a third party, or (i) use the Products or MC Licensed Data to impersonate any person or entity, or falsely state or otherwise misrepresent such Customer Party’s affiliation with a person or entity.
(e) Intelligence API Specific Use & Rate Limitations.
(i) Use. Customer may use the Intelligence API for the sole purpose of making calls and requests to access the MC Licensed Data related to any active Morning Consult Intelligence syndicated data subscription purchased by Customer. Customer may not use the Intelligence API for any other purpose without Morning Consult’s prior written consent.
(ii) Rate Limitations. Customer’s use of the Intelligence API is subject to rate limits as set forth in the Documentation. These rate limits are subject to change from time to time at Morning Consult’s reasonable discretion.
(f) Audit. Morning Consult may audit the Customer Parties’ use of the Services twice annually during normal business hours upon at least 48-hours of prior notice to Customer, and Customer shall provide Morning Consult with reasonable access to personnel, information, and documents applicable to Customer’s engagement with Morning Consult.
3. PAYMENT FOR SERVICES; TAXES.
(a) Service Fees. Customer will pay Morning Consult the fees set forth in the applicable Order Form for the Services. Except as otherwise provided in an Order Form, all fees payable in connection with the Services shall be due from Customer upfront and in accordance with the invoicing procedures set forth in Section 3(d). All fees referred to in this Agreement are in United States dollars and do not include any duties, taxes, or regulatory costs or charges. Fees for the Services will remain fixed during the Term unless you (i) change Services or (ii) subscribe to additional Services or features. Where a price change applies to you, Morning Consult will charge or invoice you under the new price structure. Notwithstanding the above, Morning Consult may increase fees for Services for any renewal terms.
(b) Other Fees. Customer will reimburse Morning Consult for expenses reasonably incurred in the performance of the Services, including, without limitation, travel, lodging, and supplies, including expenses incurred as a result of Customer requesting changes to previously scheduled travel dates, subject to any limitations expressly stated in an Order Form.
(c) Taxes and Regulatory Costs. If Customer is subject to sales and transaction taxes in connection with the Services under applicable law, Customer will be responsible for all sales and transaction taxes imposed on any Services, which will be invoiced directly by Morning Consult (to the extent Morning Consult has a legal obligation to pay or collect taxes for which Customer is responsible) with sufficient detail to clearly identify such tax. If Customer believes it is exempt from such sales and transaction taxes, Customer shall immediately communicate the same in writing to Morning Consult (prior to executing an Order Form hereunder) and provide Morning Consult with satisfactory evidence of its exempt status promptly upon request. Morning Consult will be responsible for taxes based on its own income, payroll, gross receipts, real estate, and personal property in provision of any Services and all other taxes incurred by reason of this Agreement will be the obligation of Customer. Customer will additionally be responsible for all relevant regulatory costs and fees incurred in connection with performance of any Services, including without limitation any regulatory approvals and export/import licenses necessary for the sale or importation of such Services, which may be invoiced directly by Morning Consult in addition to the fees.
(d) Due Date; Late Payments. Unless otherwise specified in the Order Form, any amount payable under this Agreement, except for amounts disputed in good faith, will be due within thirty (30) days after the invoice date. Any amount that is not disputed in good faith and which is not paid by the due date for such payment will accrue interest at a monthly rate that is the lower of (i) one- and one-half percent (1.5%) or (ii) the maximum allowed by law. In addition to the foregoing, Customer will pay Morning Consult all costs of collection, including but not limited to, attorneys’ fees, expenses, and court costs. If payment is not disputed in good faith and not made in full by the due date, Morning Consult will at its option and without limiting any other rights it may have under this Agreement or under law, be entitled to suspend provision of the Services following fifteen (15) days written notice of nonpayment, unless payment in full is received during such fifteen (15) day period, without such suspension being considered a termination of the Agreement.
4. CUSTOMER OBLIGATIONS. Customer will reasonably cooperate with Morning Consult to support its performance of the Services, including without limitation, (a) the provision of timely access to data, information, and personnel necessary for Morning Consult to complete the Services and (b) timely completion of any Customer responsibilities specified in the Order Form. Morning Consult is entitled to rely on all decisions and approvals of Customer, its employees, and agents, whether oral, written, or otherwise, in connection with its performance of the Services.
5. TITLE; CONFIDENTIALITY.
(a) Title to Proprietary Materials. The Proprietary Materials contain confidential information of, and are proprietary to, Morning Consult and its licensors. Morning Consult and its licensors own all right, title, and interest in and to the Proprietary Materials, including any reports produced by Morning Consult at Customer’s request containing data derived therefrom (excluding any Work Product to the extent contained therein), and any and all worldwide intellectual property rights embodied therein, including, without limitation, all applicable rights to patents, copyrights, trademarks, in each case whether registered or not, and trade secrets. Customer acknowledges that the MC Licensed Data and all other applicable Proprietary Materials are protected as a collective work or compilation under U.S. copyright and other laws and treaties, and that the MC Licensed Data and all other applicable Proprietary Materials have been developed, compiled, prepared, revised, selected, and arranged by Morning Consult through application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of Morning Consult. Except as expressly set forth in and authorized by this Agreement, no Customer Party has the right to license, sublicense, market, offer to sell, resell, rent, lease, transfer, assign, loan, distribute, share, or otherwise make any Proprietary Materials, or any portion thereof, available to a third party. Customer will not assert any right, title, or interest in the Proprietary Materials provided to Customer under this Agreement, except for the nonexclusive, nontransferable, non-sublicensable, revocable, limited right of use granted to Customer hereunder.
(b) Title to Work Product. All materials created, developed, or prepared by Morning Consult, its employees or agents during the course of providing the Professional Services for Customer, including for the avoidance of doubt any survey questions developed, and responses thereto collected, by Morning Consult at Customer’s specific request (the “Work Product”) shall be owned exclusively by Customer as a “work made for hire” as that term is defined in Section 101 of the Copyright Act. To the extent that title to such Work Product may not vest in Customer by operation of law or such Work Product may not be considered a “work made for hire” under applicable law, Morning Consult hereby assigns to Customer all right, title, and interest to such Work Product. Notwithstanding the foregoing, Morning Consult expressly reserves all rights in and to, without limitation, any inventions, tools, utilities, techniques, methods (including, without limitation, decision-making and analytical methodologies), strategies, research and research design, standards, know-how, and developments (including, for the avoidance of doubt, any and all intellectual property embodied in or pertaining to, and any improvements on, any of the foregoing) made or developed by Morning Consult prior to or independent of the Professional Services hereunder and utilized to create, and/or incorporated into, the Work Product (the “Pre-Existing Materials”). Morning Consult grants to Customer a perpetual, nonexclusive, nontransferable, non-sublicensable, worldwide license to use any Pre-Existing Materials to the extent incorporated in or otherwise necessary for use of the Work Product for its own business purposes. For the avoidance of doubt, the parties expressly agree that Work Product shall not include any Product or any software owned or licensed by Morning Consult.
(c) Confidentiality. Each party agrees to retain in confidence and not (except in furtherance of this Agreement) use or disclose any business, proprietary, or technical information of the other party which (1) may be disclosed to, or become known by, such party in connection with such party’s performance of this Agreement, (2) is designated in writing as “Confidential” or (3) such party knew, or reasonably should have known, was the confidential information of the other party (together, the “Confidential Information”), without the prior written consent of the other party and then only to the extent specified in such consent. For the avoidance of doubt, and without limiting the foregoing, the Proprietary Materials constitute Confidential Information of Morning Consult, the Customer Data constitutes Confidential Information of Customer, and the terms of the Order Form (and all schedules and exhibits thereto) constitute Confidential Information of Morning Consult and Customer. Each party will provide access to the Confidential Information of the other party only to its own advisors, attorneys, and/or accountants, and to those employees, agents, or representatives who have a need to access such information, or who otherwise access such information in the ordinary course of providing services to such party, and in each case, who are subject to confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as the confidentiality obligations of the parties hereto. Each party will use reasonable efforts to assure compliance with the terms of such agreements and obligations. Without limiting the foregoing, in protecting the Confidential Information of the other party hereto, each party shall use at least the same degree of care it uses to prevent the disclosure or unauthorized transfer of its own confidential information of like importance, but in no event less than reasonable care. However, neither party will have any confidentiality obligation with respect to disclosure of specific portions of Confidential Information to persons not parties to this Agreement if the receiving party can demonstrate with competent evidence that such portion: (i) is or becomes available to the public through no breach of this Agreement, (ii) was previously known by the receiving party without any obligation to hold it in confidence, (iii) is received from a third party free to disclose such information without restriction, (iv) is independently developed by the receiving party without the use of the Confidential Information of the disclosing party, (v) is approved for release by written authorization of the disclosing party, but only to the extent of such an authorization, or (vi) is disclosed in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof, but only to the extent of and for the purposes of such order, and only if the receiving party first provides the disclosing party with reasonable prior written notice of such order (to the extent permitted by applicable law) and makes a reasonable effort to obtain, or to assist the disclosing party in obtaining, an appropriate protective order preventing or limiting the disclosure. The parties’ obligations under this Section 5(c) will survive termination of this Agreement and will be binding upon each party’s heirs, successors, and assigns, and each party’s obligations with respect to all Confidential Information of the other party shall terminate only as set forth in the prior sentence.
(d) Suggestions and Feedback. Any suggestions, enhancement requests, recommendations, or other feedback relating to the MC Licensed Data or the operation of the Products that the Customer, or any employee (or employee of Customer’s Affiliates), Authorized User, client, or agent thereof, provides to Morning Consult, and any Release, software, applications, releases, inventions, information, content, or other technology developed in connection therewith (together, the “Feedback”) will be owned exclusively by Morning Consult and Customer hereby assigns to Morning Consult on its behalf, and shall cause its employees (and employees of its Affiliates), Authorized Users, clients, and agents to assign to Morning Consult, for no additional consideration, all right, title, and interest in and to the Feedback. If for any reason Customer, its employees (or employees of Customer’s Affiliates), Authorized Users, clients, or agents cannot assign such rights to Morning Consult, then Customer hereby grants, and shall cause its employees (and employees of its Affiliates), Authorized Users, clients, and agents to grant, Morning Consult a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, distribute, or incorporate Feedback in any manner that Morning Consult chooses. Morning Consult has no obligation to (i) provide any credit or attribution to Customer, its employees (and employees of its Affiliates), Authorized Users, clients, and agents or (ii) pay Customer, its employees (and employees of its Affiliates), Authorized Users, clients, and agents any amount for any Feedback.
(e) Ownership of Customer Data & Reservation of Rights. Customer exclusively owns all right, title, and interest in and to the Customer Data, excluding User IDs, which are only owned by the Customer for as long as the Customer uses the Products and which become Morning Consult’s property immediately upon any termination of Customer’s license to the applicable Product or this Agreement. As between the parties, and subject to the license grants under this Agreement, each Customer Party’s rights with respect to the Products and Licensed Data, and all content and software contained therein will be only that of a licensee. Morning Consult and each of the Customer Parties respectively reserve all rights not expressly granted in this Agreement, and no licenses are granted by Morning Consult to any Customer Party under this Agreement, whether by implication, estoppel, or otherwise, except as expressly set forth in this Agreement. No Customer Party is permitted to use or reproduce or allow (for any reason) anyone to use or reproduce any copyrighted materials, trademarks, or trade names appearing in or accessible using the Product and Licensed Data except as provided herein. Customer will be responsible for backing up and retaining its Customer Data.
(f) Usage Data. Morning Consult owns and has the unlimited and perpetual right to collect and use usage statistics, analytics, reporting, or results (“Usage Data”) specific to the Customer Parties’ use of and access to the Products and Proprietary Materials to develop, improve, support, or operate the Products and Services. Morning Consult may also share, sell, or license any Usage Data with a third party to the extent the Usage Data is de-identified and aggregated with data from other users of the Services such that the data cannot be attributed to Customer or any specific Customer Party. Morning Consult will not have any obligation to pay Customer any amount for such data.
(g) Security. Morning Consult has implemented appropriate data security measures for any Customer Data that may be maintained on its servers. The term “appropriate data security measures” means commercially reasonable technical, physical, and procedural controls designed to (i) protect Customer Data against unauthorized disclosure to third parties and unauthorized access by its employees and contractors, and (ii) prevent the introduction of viruses and other malicious code. Customer has implemented appropriate data security measures to prevent any unauthorized access to the Products and/or Licensed Data.
(h) Unauthorized Disclosure. Customer shall provide written notification to Morning Consult as soon as practicable, but no later than one (1) business day, if Customer becomes aware that an act or omission of a Customer Party or a client or agent of Customer caused (i) the loss, misuse, or unauthorized or unlawful disclosure, corruption, sale, or rental of any Licensed Data or (ii) any event that compromises the security, confidentiality, or integrity of any Licensed Data. Customer shall reasonably cooperate with any remediation that Morning Consult, in its reasonable discretion, determines is necessary at Customer’s sole cost and expense.
6. REPRESENTATIONS AND WARRANTIES.
(a) By Customer. Customer represents and warrants to Morning Consult that (i) it has full authority to execute and perform this Agreement, and to bind the Customer Parties, and that the individual accepting this Agreement on behalf of Customer has been duly authorized and empowered to enter into this Agreement, (ii) this Agreement has been duly executed and delivered by Customer and constitutes the legal, enforceable, and binding obligation of Customer, (iii) Customer’s execution and performance of this Agreement will not violate any law or breach any other agreement to which it is bound, (iv) no approval, action, or authorization by any governmental authority or agency is required for Customer’s execution and performance hereof, (v) the Customer Data, Customer’s means of providing the same, and Morning Consult’s use of the same in providing the Services do not and will not infringe upon, violate, or misappropriate any copyright, trademark, trade secret, or any patent or other proprietary rights of any third party or any law or governmental rule or regulation, nor violate any terms of service, terms of use, or other guidelines and/or agreements pursuant to which Customer obtained any right or license to use and/or distribute such Customer Data, (vi) the Customer Data does not include any PII, (vii) it, as well as its Authorized Users, will not use the Licensed Data or Web Content in any manner that violates applicable intellectual property law, and will procure all necessary permissions that may be required to use Web Content for Customer’s and its Authorized Users’ intended purposes and shall comply with the terms of use posted on any Source Site where any Web Content appears, (viii) it, as well as its Authorized Users, will only use the Products and Licensed Data, and disclose data or information relating thereto, in strict compliance with all applicable law, and (ix) it is not owned or controlled by, nor acting for or on behalf of, any person or entity (X) located in Cuba, Sudan, Iran, Libya, North Korea, Somalia, Syria, Ukraine, Zimbabwe, or any other country or region that is subject to U.S. economic sanctions, (Y) identified on the Specially Designated Nationals List and Consolidated Sanctions List administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or (Z) with whom U.S. persons are otherwise prohibited from transacting. To the extent set forth within the applicable Product, Customer covenants that it will comply, and cause its Authorized Users to comply, with all terms and conditions of third party data providers with respect to the use of Licensed Data sourced by all such third parties and made available to the Customer Parties in connection with the Products.
(b) Warranty Disclaimer. MORNING CONSULT MAKES NO EXPRESS OR IMPLIED WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW OR STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY MORNING CONSULT, OR ANY OTHER PERSON ON MORNING CONSULT’S BEHALF. THE SERVICES ARE PROVIDED “AS IS” AND EACH CUSTOMER PARTY’S USE OF THE SERVICES IS AT ITS SOLE RISK. MORNING CONSULT AND ITS LICENSORS AND THIRD PARTY DATA PROVIDERS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, (I) THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (II) THAT THE SERVICES WILL OPERATE ERROR FREE, WITHOUT INTERRUPTION, OR IN COMBINATION WITH OTHER SERVICES, (III) THAT ALL SERVICES DEFECTS OR NONCONFORMITIES ARE CORRECTABLE, OR (IV) AS TO THE USE OF ANY OF THE SERVICES OR CONTENT CONTAINED THEREIN IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. MORNING CONSULT AND ITS THIRD PARTY DATA PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL LIABILITY WITH REGARD TO ANY CUSTOMER PARTY’S ACCESS TO AND USE OF THE WEB CONTENT AND ANY LICENSED DATA AND CONTENT. MORNING CONSULT HAS NOT ENTERED INTO ANY LICENSING OR LINKING AGREEMENT WITH THE OWNERS OF THE SOURCE SITES THAT PROVIDE THE WEB CONTENT. EACH CUSTOMER PARTY’S USE OF THE WEB CONTENT (INCLUDING DISTRIBUTION AND REDISTRIBUTION THEREOF) IS SOLELY AT ITS OWN RISK. MORNING CONSULT DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE LICENSED DATA OF ANY THIRD PARTY DATA PROVIDER. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND CUSTOMER MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
(c) No Advice. CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT MORNING CONSULT IS NOT PROVIDING FINANCIAL, TAX AND ACCOUNTING, ECONOMIC, POLITICAL, LEGAL, OR ANY OTHER PROFESSIONAL ADVICE BY ALLOWING CUSTOMER TO ACCESS AND USE THE SERVICES, LICENSED DATA, AND CONTENT. ANY DECISIONS A CUSTOMER PARTY MAKES IN RELIANCE ON THE SERVICES AND ANY INTERPRETATION BY A CUSTOMER PARTY OF ANY LICENSED DATA OR CONTENT ARE SUCH CUSTOMER PARTY’S ALONE FOR WHICH SUCH CUSTOMER PARTY SHALL HAVE FULL RESPONSIBILITY. MORNING CONSULT IS NOT RESPONSIBLE FOR ANY DAMAGES RESULTING FROM ANY DECISIONS OR INTERPRETATIONS BY A CUSTOMER PARTY, OR BY ANYONE ACCESSING THE SERVICES THROUGH A CUSTOMER PARTY, MADE IN RELIANCE ON THE SERVICES, LICENSED DATA, OR CONTENT, INCLUDING FINANCIAL, TAX AND ACCOUNTING, ECONOMIC, POLITICAL, LEGAL, COMPLIANCE, ADVERTISING, MARKETING, AND/OR RISK MANAGEMENT DECISIONS AND INTERPRETATIONS. THE ECONOMIC INTELLIGENCE DATA PROVIDED TO CUSTOMER UNDER THIS AGREEMENT IS NOT INTENDED TO CONSTITUTE ANY TYPE OF RECOMMENDATION AS TO THE VALUE OF ANY SECURITIES OR AS TO THE ADVISABILITY OF INVESTING IN, PURCHASING, OR SELLING SECURITIES, AND THE CUSTOMER PARTIES ARE SOLELY RESPONSIBLE FOR ANY DECISIONS THEY MAY MAKE REGARDING INVESTMENTS IN SECURITIES.
7. INDEMNIFICATION.
(a) By Morning Consult. Morning Consult will defend, indemnify, and hold Customer and its employees, agents, officers, directors, successors, and assigns (the “Customer Indemnitees”) harmless from and against any and all losses, damages, liabilities, costs, and expenses, including without limitation reasonable attorneys’ fees and expenses (together, the “Losses”), arising from any claim, suit or action (each, a “Claim”) brought against any such Customer Indemnitee by a third party to the extent such Claim arises from an allegation that any Product, when used as expressly permitted by this Agreement, infringes the valid United States copyright or patent of such third party. However, Morning Consult will not be obligated to defend, indemnify, or hold any Customer Indemnitee harmless from any Claim unless Customer (x) notifies Morning Consult in writing of any actual or threatened Claim within ten (10) days after it learns of such a Claim, (y) grants Morning Consult sole control of the defense and settlement thereof, and (z) provides Morning Consult all reasonable assistance in connection therewith. If any of the Products is finally held to so infringe, or in Morning Consult’s sole reasonable judgment is likely to be so held, Morning Consult will, at its option and expense: (i) procure for Customer the right to continue using the applicable Product, (ii) modify or replace the applicable Product to make it non-infringing as long as such Product, as modified or replaced, has the same functionality in all material respects, or (iii) terminate the applicable Order Form (as applicable to the infringing Product only) and provide Customer a pro rata refund of any pre-paid fees applicable to such Product for the period after termination. Notwithstanding the above, Morning Consult will have no obligations under this Section 7(a) or otherwise with respect to any infringement claim arising out of: (A) use of other than a current, unaltered Release of the Products unless the infringing portion is also in the then current Release, (B) any use of the Products in combination with products, equipment, software, or data not made available hereunder by Morning Consult if the infringement was caused by such use or combination, (C) any use, modification, or derivation of the Products not specifically authorized in writing by Morning Consult or expressly permitted under this Agreement, or (D) a Customer Party’s negligence or willful misconduct (including the negligence or willful misconduct of any person acting on behalf of a Customer Party). THE FOREGOING STATES MORNING CONSULT’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ALL THIRD PARTY CLAIMS.
(b) By Customer. Customer will defend, indemnify, and hold Morning Consult, its licensors, and each such party’s parent, Affiliates, employees, agents, representatives, officers, directors, successors, and assigns (the “MC Indemnitees”) harmless from and against any and all Losses arising from any Claim brought against any such MC Indemnitee by a third party to the extent such Claim arises from or relates to (i) a Customer Party’s negligence or willful misconduct (including the negligence or willful misconduct of any person acting on behalf of a Customer Party), or breach of any of Customer’s representations, warranties, covenants, or obligations under this Agreement, (ii) a Customer Party’s use of the Services, Licensed Data, and/or Web Content (including use of the same by any person acting on behalf of a Customer Party), or (iii) an allegation that (x) Customer does not have the right to provide the Customer Data to Morning Consult as contemplated by this Agreement or to use the Customer Data in connection with the Services, (y) a Customer Party (or any person acting on behalf of a Customer Party) uses the Services in violation of any applicable law, rule, or regulation, or (z) Morning Consult is liable or responsible for any use of the Customer Data provided that such use by Morning Consult is in accordance with the terms of this Agreement. Customer shall assume, at its sole cost and expense, the defense of such Claims through legal counsel reasonably acceptable to Morning Consult, except that Morning Consult may at its option and expense select and be represented by separate counsel. Morning Consult shall reasonably cooperate with Customer, at Customer’s request and sole expense, in defending any such Claim; provided, however, that Customer will not, without the prior written consent of Morning Consult, consent to the entry of any judgment or enter into any settlement that (A) provides for any admission of liability on the part of any of the MC Indemnitees, or relief other than the payment of monetary damages for which the Customer will be solely liable, (B) adversely affects the rights of Morning Consult under this Agreement, or (C) does not fully release the MC Indemnitees from all liability in respect thereof. In no event shall the MC Indemnitees be liable for any Claims that are disposed of, compromised, or settled in violation of this Section. If Customer fails to assume the defense of any actual or threatened Claim covered by this Section within the earlier of (y) any deadline established in a written demand by a court or (z) thirty (30) calendar days of Customer’s receipt of notice of such Claim, Morning Consult may follow such course of action as it reasonably deems necessary to protect its interests, and shall be indemnified by Customer for all costs reasonably incurred in such action, including without limitation, attorneys’ fees and expenses.
8. LIMITATION OF LIABILITY. SUBJECT TO THE TERMS OF THIS SECTION, WE DISCLAIM ANY LIABILITY FOR DAMAGES CAUSED BY THE SERVICES UNLESS DUE SOLELY TO MORNING CONSULT’S INTENTIONAL WRONGDOING. IN NO EVENT, WHETHER AN ACTION IS IN CONTRACT, TORT, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, AND REGARDLESS OF THE THEORY OF LIABILITY, SHALL ANY MC INDEMNITEE BE LIABLE FOR LOSS OF USE, VALUE, PROFIT, REVENUE, OR GOODWILL, OR OTHER INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING IN CONNECTION WITH THIRD PARTY MATERIALS MADE AVAILABLE THROUGH THE SERVICES, REGARDLESS OF WHETHER (A) SUCH LOSSES OR DAMAGES WERE FORESEEABLE AND EVEN IF ANY PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR (B) ANY REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE TOTAL LIABILITY OF THE MC INDEMNITEES ARISING OUT OF ANY CLAIM OR CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF THE FEES PAID BY CUSTOMER TO MORNING CONSULT PURSUANT TO THIS AGREEMENT, FOR THE SPECIFIC SERVICES GIVING RISE TO THE LIABILITY, DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE INCIDENT OUT OF WHICH SUCH CLAIM OR CLAIMS AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY MC INDEMNITEE. ALL CLAIMS THAT CUSTOMER MAY HAVE AGAINST MORNING CONSULT UNDER THIS AGREEMENT WILL BE AGGREGATED TO SATISFY THE LIMIT SET FORTH HEREUNDER AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
9. TERM AND TERMINATION.
(a) Term. This Agreement is effective on the Effective Date and will continue for the term specified in the applicable Order Form, including any renewal terms entered into thereunder, unless terminated earlier pursuant to the terms of this Agreement (collectively, the “Term”).
(b) Termination By Customer. Customer may terminate this Agreement upon thirty (30) days’ prior written notice if Morning Consult breaches a material term of this Agreement and fails to cure the same within such 30-day period.
(c) Termination By Morning Consult. Morning Consult may, without limiting any other right or remedy available to it under this Agreement, at law, or in equity, immediately suspend any Customer Party’s access to and use of the Products (including, for the avoidance of doubt, delivery of Economic Intelligence Data via CSV as may be contemplated in an Order Form), and/or immediately terminate this Agreement if Morning Consult reasonably determines, in its sole discretion, that any Customer Party has breached any provision of this Agreement. You will continue to be charged for all fees during any period of suspension under this Agreement. Notwithstanding anything contained herein to the contrary, Morning Consult may, for any reason, immediately suspend or terminate any Customer Party’s access to and use of any Service that has been granted on a free or trial basis.
(d) Automatic Termination. This Agreement will terminate with immediate effect if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
(e) Effect of Termination.
(i) The Services will terminate immediately upon any termination of the Agreement, and each Customer Party will immediately cease all use of such Services.
(ii) Morning Consult will have no obligation to refund any amounts paid by Customer under this Agreement upon termination. Upon any termination or expiration of this Agreement, the Customer will pay Morning Consult all amounts relating to any outstanding invoices, including any reimbursable expenses incurred prior to such termination or expiration. In addition, if this Agreement is terminated for any reason other than under Section 9(b), and without limiting any other right or remedy available to Morning Consult under this Agreement, at law, or in equity, Customer will pay Morning Consult one hundred percent (100%) of the remaining balance of the total fees for Services that would have been payable by Customer for the balance of the applicable Term (as if this Agreement had not been terminated) and any additional amounts to which Morning Consult is entitled pursuant to applicable law.
(iii) Upon termination or expiration of this Agreement and all outstanding Order Forms, each party shall promptly destroy all copies of such other party’s Confidential Information in such party’s possession or control, and in circumstances where Customer elects to destroy such copies of Morning Consult’s Confidential Information, Customer shall promptly confirm destruction of the same in writing to Morning Consult. Notwithstanding the above, Morning Consult may (x) set an earlier time after which it is no longer obligated to retain certain Customer Data, and (y) retain all Work Product in the Products for up to twenty-four (24) months after the expiration or termination of this Agreement and the last outstanding Order Form unless Customer requests earlier deletion in writing to Morning Consult. Notwithstanding the foregoing, Morning Consult may retain a copy of Customer Confidential Information (A) in such manner and for such period of time as is required by applicable law, rule or regulation (including the valid order of a court or regulatory authority, or when necessary for the establishment, exercise or defense of legal claims) and (B) in its backup and disaster recovery systems until they are destroyed in the ordinary course of business; provided that, in each case, any Customer Confidential Information so retained shall, notwithstanding any termination or expiration of this Agreement, be kept confidential in accordance with the terms of this Agreement until it is destroyed.
(f) Suspension of Services. Morning Consult may immediately suspend the Customer Parties’ access to the Products at any time if Morning Consult has reasonable, good-faith concerns about a security threat that could affect the Products or the data of any other user of the Products. Morning Consult may immediately terminate the Services if a Customer Party (i) commits any criminal act or other act involving moral turpitude or felonious activities, (ii) commits any act or becomes involved in any situation or occurrence which brings Customer into public disrepute, contempt, scandal, or ridicule, or which Morning Consult reasonably determines reflects unfavorably upon Morning Consult or (iii) makes or authorizes statements in derogation of Morning Consult or its Services and such statements become public during the Term.
10. PRODUCT SUPPORT; SERVICE LEVEL AGREEMENT. Morning Consult will provide feature and availability support for the Products in accordance with the procedures set forth in Exhibit B hereto, and the Products are subject to the uptime service level agreement set forth in Exhibit A hereto. Any other support for Services, if any, and applicable pricing, will be specified in the Order Form.
11. GENERAL.
(a) Notices. Any notice required or permitted hereunder will be in writing and will be deemed to have been duly given (i) upon hand delivery, (ii) on the third day following delivery to the U.S. Postal Service as certified mail, return receipt requested and postage prepaid, (iii) on the first day following delivery to a recognized overnight courier service, fee prepaid and return receipt or other confirmation of delivery requested, or (iv) on the date of dispatch of an e-mail sent to the e-mail address of such party (or on the following business day if sent after the recipient’s normal business hours). Any such notice will be delivered or sent to a party at its physical address or e-mail address (in the case of Customer, as set forth in the “Customer Information” section of the applicable Order Form (and in the absence of an Order Form, to Customer’s last known place of business or e-mail address), and in the case of Morning Consult, to 1025 F Street NW, Suite 800, Washington, DC 20004 (Attn: Legal)) or to such other physical address, e-mail address, or facsimile number as may be designated by a party hereto in a notice given to the other from time to time in accordance with the terms of this paragraph. Notwithstanding the above, in order for any notice to Morning Consult to be effective hereunder, such notice must also be sent to notice@morningconsult.com.
(b) Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to its conflicts of law principles. The parties agree that any litigation pertaining to this Agreement shall be heard exclusively in courts located in the State of Delaware, and the parties hereby waive any objections based upon the jurisdiction, forum, or venue of such courts.
(c) Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be handled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Washington, DC. Either party may apply to the arbitrator(s) for purposes of seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). Notwithstanding the foregoing, any controversy or claim arising out of or relating to Customer’s obligation to pay any amounts or costs due under this Agreement shall be excluded from this Section 11(c). THE PARTIES HEREBY KNOWINGLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION UNDER THIS AGREEMENT. Further, to the fullest extent permitted by law, Customer agrees that no class or collective actions can be asserted in arbitration or otherwise. All claims, whether in arbitration or otherwise, must be brought solely in the Customer’s individual capacity, and not as a plaintiff or class member in any purported class or collective proceeding.
(d) Injunctive Relief. Recognizing and acknowledging that any breach by a Customer Party of the provisions of this Agreement may cause Morning Consult irreparable damage for which monetary damages may be inadequate, Customer agrees that, in addition to monetary damages and any other remedies available to Morning Consult at law or in equity, Morning Consult will have the right to petition for injunctive or such other equitable relief as may be necessary to prevent or remedy such a breach or threatened breach without (i) having to prove actual damages or (ii) the requirement of a bond or notice, and Customer agrees not to object or defend against any such action on any basis, including on the basis that monetary damages would provide an adequate remedy.
(e) Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, except that Morning Consult may assign this Agreement without such consent to its successor in interest by way of merger, acquisition, or sale of all or substantially all of its assets. The terms of this Agreement shall be binding upon assignees, and attempted assignment or transfer in violation of this Agreement will be null, void, and invalid.
(f) Severability. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
(g) Force Majeure. Neither party will be liable for any costs, expenses, or damages due to nonperformance under this Agreement arising out of any cause not within the reasonable control of such party and without its fault or negligence, including but not limited to acts of God, riots or civil commotions, supplier problems, war, terrorism, or other acts of any nation or governmental agency or authority. Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement that directly results from any delay or failure of the other party to perform its obligations as set forth in this Agreement.
(h) Waiver. No waiver of a breach of any term of this Agreement will be effective unless in writing and duly executed by the waiving party. No such waiver will constitute a waiver of any subsequent breach of the same or any other term of this Agreement. No failure on the part of a party to exercise, and no delay in exercising, any of its rights hereunder will operate as a waiver thereof, nor will any single or partial exercise by a party of any right preclude any other or future exercise thereof or the exercise of any other right. No course of dealing between the parties will be deemed effective to modify, amend, or discharge any part of this Agreement or the rights or obligations of any party hereunder.
(i) Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the transactions contemplated hereby, and supersedes any prior agreements, proposals, or representations, written or oral, or other understandings among the parties with respect to the subject matter hereof. There are no representations, warranties, covenants, or obligations of any party not expressly contained herein. The terms and conditions contained in any purchase orders, correspondence, or other documents forming part of any Customer order for Services, even if signed or otherwise acknowledged by an employee or agent of Morning Consult, will be deemed to be null and void and of no force and effect.
(j) Litigation Support. In the event Customer purchases Professional Services with the intent or for the purpose of using such Services in connection with ongoing or threatened litigation, Customer shall promptly disclose such intent or purpose in writing to Morning Consult prior to entering into the applicable Order Form. In the event Morning Consult provides Professional Services that are used by Customer in connection with ongoing or threatened litigation, or any MC Indemnitee is served with or becomes subject to any legal process in connection therewith, including but not limited to a subpoena, order, deposition, interrogatory, or investigative demand (each, a “Legal Order“) in any legal, administrative, or governmental proceeding to which Morning Consult is not a party, Customer shall compensate or reimburse each such MC Indemnitee (or Morning Consult on such MC Indemnitee’s behalf if Morning Consult incurs such costs directly) for any and all reasonable and documented actual out-of-pocket-costs, including without limitation, document production and copying costs, attorneys’ fees and expenses, filing fees, and travel expenses incurred in connection with responding to and/or complying with such Legal Order, except to the extent such Legal Order arises out of or is caused by Morning Consult’s gross negligence, willful misconduct, or breach of this Agreement.
(k) Construction. The headings in this Agreement are for convenience only. They do not constitute a portion of this Agreement and will not be used in any construction thereof. Any interpretation of this Agreement will not presume that its terms should be more strictly construed against one party by reason of any rule of construction or authorship. Further, any Order Form entered into between the parties may be executed in one or more counterparts, each of which will be deemed an original, and delivery of an executed counterpart signature page by facsimile or e-mail is as effective as executing and delivering an Order Form in the presence of the other party to this Agreement. Any signatures on an Order Form that are electronic or that are delivered electronically will be deemed effective for all purposes and will be deemed originals.
(l) Publicity. Morning Consult shall be permitted to use the name and logo of Customer in its customer lists and promotional materials with Customer’s consent only. Neither party may make any public announcement or disclosure of any Claim, defense, or settlement hereunder without the other party’s prior written approval. No Customer Party shall use the MC Marks for the making of a case study, testimonial, press release, or other public announcement regarding this Agreement or any activities performed for or on behalf of any Customer Party without Morning Consult’s prior written approval in each instance. The MC Marks may be used and displayed only in the form approved by Morning Consult in writing.
(m) U.S. Government Customers. The Services and Documentation are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Customer or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer and Customer’s Authorized Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
(n) Survival. Except as otherwise set forth herein, the provisions of this Agreement that by their nature would survive its termination will survive indefinitely.
(o) Debarment, Suspension and Other Related Matters. Customer certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any U.S. federal, state, or local governmental department or agency.
(p) Compliance with Laws. The parties agree to comply with all applicable national, state, and local laws, orders, and regulations during the Term.
(q) Third Party Beneficiary. No third party beneficiary relationships are intended or created by this Agreement.
(r) Independent Contractors. Customer’s relationship to Morning Consult will be that of an independent contractor. Neither Customer and its employees nor Morning Consult and its employees are agents or legal representatives of the other party for any purpose and have no authority to act for, bind, or commit the other party. This Agreement does not establish a franchise, joint venture, partnership, or agency relationship.
(s) Non-Solicitation. During the Term and for a period of one (1) year afterwards, no Customer Party will knowingly entice, persuade, or otherwise solicit any Morning Consult employee, contractor/consultant, or other representative directly engaged with the Services contemplated under this Agreement to leave Morning Consult’s services for any reason, which restriction excludes general solicitations not directed at Morning Consult’s employees, contractors/consultants, and other representatives.
(t) Amendment. We may modify these Terms at any time by posting a revised version on this website or by sending a message to the e-mail address associated with your account. The modified terms will become effective upon posting or, if we do notify you by e-mail, as stated in the e-mail message, whichever is earlier (provided, however, that such modified terms shall not apply to any Order Form previously entered into between you and Morning Consult that is in effect at the time such modified terms become effective, but for the avoidance of doubt, will apply to any new Order Form(s) entered into between you and Morning Consult after such modified terms become effective). If these Terms apply to you because you have previously (i) clicked an “I Accept” button or checkbox presented with these Terms or (ii) commenced use of any of the Services (in each case, not pursuant to an Order Form), your continued use of the Services after the effective date of any modifications to these Terms shall constitute your agreement to be bound by the Terms as modified. It is your responsibility to check this website regularly for modifications to these Terms. If you choose not to accept any modifications to these Terms, your only recourse is to stop using the Services. We last modified the Terms on the date listed below:
Updated as of November 30, 2023.
EXHIBIT A
Service Level Agreement
Morning Consult will make the Products available with an uptime commitment of at least 99.5% 24 hours a day, 7 days a week (measured quarterly), except for: (i) planned downtime (of which Morning Consult shall use best efforts to give Customer at least 8 hours written notice and which Morning Consult shall schedule, to the extent practicable, between 8:00 p.m. Friday and 5:00 a.m. Monday Eastern time), and (ii) any unavailability caused by circumstances beyond Morning Consult’s reasonable control, including, without limitation, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, acts or omissions of users, failure or malfunction of non-Morning Consult equipment, applications or systems, failure of non-Morning Consult systems to meet applicable Product technical requirements, or denial of service attack (collectively, the “Uptime Commitment”). Customer’s sole remedy for any breach by Morning Consult of the obligations contained herein is termination of the Agreement pursuant to Section 9(b).
EXHIBIT B
Product Support
Upon Customer’s written request, Morning Consult will designate, and provide Customer with appropriate contact information for, a primary contact person (“POC”) for Customer to engage in connection with the provision of support services related to Product features and availability (“Support”). The POC shall at all times be the single point of contact for all new requests for Support by Customer personnel. Customer personnel may contact the POC at any time for Support in connection with any Product feature and availability issues Customer may experience. The POC, or its representative if the POC is unavailable, will use best efforts to acknowledge and respond promptly, to the extent practicable, to Support inquiries during Morning Consult’s normal business hours of 9:00 a.m. through 6:00 p.m. Eastern time, Monday through Friday, excluding Morning Consult holidays.