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Subscription Services Agreement

v.November, 2024

This Subscription Services Agreement governs the delivery and availability of the Subscription Services, as defined below in section A, and is entered into by and between MarketMuse, Inc. d/b/a MarketMuse (“Provider”) and the entity you represent, or, if you do not designate an entity in connection with a Subscription Services purchase or renewal, you individually (“You” or “Customer”).  This Subscription Services Agreement and any related invoices, service orders and exhibits shall be referred to collectively as “the Agreement”. The Agreement is entered into and effective from when you complete the purchase on the MarketMuse website.  Provider and Customer are each referred to herein as a “Party” and are collectively referred to herein as the “Parties.”

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY MM SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

A. Definitions

  1. “Affiliates” means any entity directly or indirectly controlling or controlled by, or in common control with a Party, where “control” is defined in this context as the ownership of at least fifty percent (50%) or more of the voting stock or other interest entitled to vote on general decisions reserved to stockholders, partners, or other owners of such entity;
  2. “Authorized Users” means Customer’s employees, contractors, and representatives who are authorized to access the Subscription Services on Customer’s behalf.
  3. “Confidential Information” means all information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information does not include information that: (a) was in the public domain prior or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party through no fault of Receiving Party; (b) was rightfully in Receiving Party’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party; (c) was developed by employees or agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party; (d) was communicated by Disclosing Party to an unaffiliated third party free of any obligation of confidence; or (e) is approved by Disclosing Party for release by Receiving Party.
  4. “Data” means information, content and other data that may be exchanged electronically between Customer and Provider or otherwise provided on behalf of Customer.
  5. “IP” means all inventions (whether or not protected under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, know-how, ideas and all other protected subject matter.
  6. “Service Order” means an executed order form, invoice or any other document for ordering MarketMuse and/or Subscription Services. 
  7. “Subscription Services” means the proprietary hosted software and platform used and accessed by Customer and employed by Provider to deliver services and the associated Provider technology (as applicable), and any modified versions and copies of, and upgrades, updates and additions to, such software, platform and services provided to Customer by Provider.

B. Subscription Services

  1. Subscription Services. Subject to the terms and conditions of this Agreement, Provider hereby grants Customer and its Authorized Users a limited, revocable, non-exclusive, non-transferable, non-assignable right to use and access the Subscription Services, solely for Customer’s own internal business purposes. Provider shall have the right to modify the Subscription Services in its sole discretion upon written notice to Customer, provided that such modifications will not result in a material reduction in the level of functionality, performance, availability, or security of the Subscription Services provided to the Customer.
  2. Authorized Users. The Service Order identifies the number of Authorized Users who may be granted access under this Agreement. Upon payment of the fees specified in the Service Order, Customer may, during the term specified in a Service Order, increase the quantity of Authorized Users. Customer may switch out authorized users under this agreement from time to time, but not more than once a quarter.
  3. Restrictions. All rights not expressly granted to Customer are reserved by Provider and all Subscription Services shall remain the property of Provider, and Customer shall have no right, title or interest therein except for the rights expressly provided in this Agreement. Unless specifically authorized by Provider or otherwise permitted under this Agreement, Customer may not access the Subscription Services for any benchmarking or competitive purpose. Customer shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any of the Subscription Services or Provider hardware in any way; (b) modify or make derivative works based upon the Subscription Services; (c) decompile, disassemble, reverse engineer or access the Subscription Services; or (d) use software or automation to access Provider data, without prior written consent. If a breach is detected, Provider shall have the right to suspend access to the Subscription Services upon written notice to Customer, provided that upon resolution of the breach, access to the Subscription Services shall be promptly restored.
  4. Usage Limitation. Provider may limit usage on an individual user basis. Customer acknowledges that while Provider’s primary intent with such usage restrictions is to maintain the technical security of its site and to limit scraping, extraordinary but legitimate usage may also be prevented by such usage restrictions. If Customer’s extraordinary but legitimate usage is limited by such restrictions, Provider will attempt to find a mutually acceptable solution for the usage restrictions.
  5. Support services. In connection with Subscription Services, Provider shall provide to Customer technical support as set forth on the applicable Service Order.

C. Term and Termination

  1. Agreement Term. Unless otherwise specified in a Service Order or invoice, the initial term for this Agreement is one (1) month. Following the initial term, this Agreement will automatically renew on a month-to-month basis until cancelled or terminated in accordance with the below.  Both the initial term and the subsequent monthly renewal term(s) are referred to collectively as the “Term.”
  2. Cancellation. Either Party may cancel any upcoming renewal term by providing notice to the other Party. The cancellation will be effective from the last day of the current term.  
  3. Termination for Breach. Either Party may terminate this Agreement immediately by sending written notice in the event that the other Party has failed to comply with any material term, condition or obligation of this Agreement and fails to cure such non-compliance during the fourteen (14) day period.
  4. Effects of Termination. Promptly upon termination or expiration of this Agreement for any reason,
    (a) Customer shall pay any undisputed amounts due to Provider under this Agreement for the Subscription Service provided up to and until the date of termination provided that termination was not due to a breach on the part of Provider; and (b) the Customer’s rights granted under the Agreement, as applicable, will immediately terminate and the Parties shall cease all activities hereunder; and (c) all Service Orders will automatically terminate. Except for Customer’s termination rights under Section C(3), Customer remains liable for payment of all amounts owed for the current Subscription Services and will not be entitled to a credit or refund upon termination of the Agreement.
  5. Survival. The following provisions will survive any expiration or termination of the Agreement: Ownership, Confidentiality, Representations & Warranties, Indemnification, Governing Law, Assignment, Publicity, Relationship of Parties, and any other term that by its nature survives expiration or termination will survive termination or expiration of this Agreement in accordance with their terms.

D. Fees and Charges

  1. Fees. Customer shall pay all undisputed fees, expenses or other charges in accordance with the applicable Service Order. Unless otherwise agreed in writing by the Parties, all fees and charges are due and payable as specified in Billing Terms from Customer’s receipt of the invoice. All payments will be made in U.S. dollars.
  2. Taxes. Fees listed on the applicable Service Order are exclusive of taxes. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law.

E. Ownership

  1. Subscription Services. Customer acknowledges and agrees, and Provider represents and warrants that (a) all Subscription Services are protected by IP rights, as applicable, of Provider and its licensors, and (b) that Provider owns all right, title, and interest in and to the Subscription Services, together with any and all ideas, processes, techniques, designs, architecture, and “know-how” embodying the Subscription Services.
  2. Provider Data. The Data provided by Provider to Customer in conjunction with the use of the Subscription Services are and shall remain the property of Provider and its suppliers/brand owners, including all applicable rights to: (a) copyrights, including all rights incident to copyright ownership, such as all rights of publication, registration and rights to create derivative works; (b) patents; (c) trademarks; and (d) trade secrets (including all know-how, ideas, logic, formulas and confidential information embodied in or reflected in the Subscription Services).
  3. Customer Data. The Data and IP provided by Customer or on behalf of Customer to Provider in conjunction with the use of the Subscription Services are and shall remain the property of Customer and its suppliers/brand owners, including all applicable rights to: (a) copyrights, including, without limitation, all rights incident to copyright ownership, such as all rights of publication, registration and rights to create derivative works; (b) patents; (c) trademarks; and (d) trade secrets (including all know-how, ideas, logic, formulas and confidential information embodied in or reflected in the Subscription Services).

F. Confidentiality

  1. Protection of Confidential information. Receiving Party shall maintain the confidentiality of the Confidential Information of the Disclosing Party. Receiving Party shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Disclosing Party’s Confidential Information. The Receiving Party assumes full responsibility for the acts and omissions of its employees, officers, agents, subcontractors, and independent contractors with respect to such Confidential Information.
  2. Disclosure of Confidential Information. Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, attorneys, officers, agents, subcontractors and independent contractors who have: (a) a need to know such Confidential Information in order to perform their duties; and (b) a legal duty to protect the Confidential Information.
  3. Breach. Receiving Party shall promptly notify Disclosing Party of any breach of this provision that it becomes aware, and in any event, shall be responsible for any breach of this provision by any of its employees, attorneys, officers, agents, subcontractors, and independent contractors.
     

G. Representations and Warranties

  1. Legal Authority. Each Party represents and warrants to the other Party that: (a) such Party is a corporation duly organized, validly existing and in good standing under the laws of the state of its incorporation; and (b) such Party has the full and unrestricted power and authority to execute and deliver this Agreement and to carry out the transactions contemplated hereby. Each Party warrants that at all times it shall comply with all applicable federal, state, local, and other laws and regulations (and as such laws and regulations may have been amended or may be amended from time to time in the future) in performing its other obligations pursuant to this Agreement. Without limiting the generality of the above, neither Party shall discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, disability, sexual orientation, creed, alienage, citizenship status, marital status, or any other category protected under any federal, state or local law or regulation.
  2. Subscription Services Warranty. Provider represents and warrants to Customer that: (i) the Subscription Services will operate in substantial conformity with the specifications and documentation for the Subscription Services; and (ii) Provider has used industry-standard techniques to prevent the Subscription Services from injecting malicious software viruses into Customer’s networks and systems. Customer’s sole and exclusive remedy and the entire liability of Provider for its breach of these warranties will be for Provider, at its own expense to: (a) use commercially reasonable efforts to provide a work-around or correct such error; or (b) terminate Customer’s access and use the applicable non-conforming Subscription Service and refund the prepaid fee prorated for the unused period.

H. Indemnification

  1. Provider Indemnity. Subject to Section H(3), Provider will defend Customer from and against all third-party claims, lawsuits, and demands arising out of an allegation that Subscription Services infringe or misappropriates any intellectual property right of such third party, and will indemnify Customer for all reasonable attorney’s fees incurred, damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set out below subsection H(3). In no event will Provider or any of its Affiliates have obligations or liability under this section arising from: (a) use of the Subscription Services in a modified form or in combination with materials or technology not furnished by Provider, and (b) any content, information, or data provided by Customer, Customer’s end users, or other third parties.  For any claim covered by this section, Provider will, at its election, either (i) procure the rights to use the portion of the Subscription Services alleged to be infringing, (ii) replace the alleged infringing portion of the Subscription Services with a non-infringing alternative, or (iii) terminate the allegedly infringing portion of the Subscription Services or this Agreement and provide Customer with a pro-rata refund of any pre-paid, unused Fees.
  2. Customer Indemnity. Customer shall indemnify, defend and hold Provider and its employees, officers and agents harmless from and against all liability, claims and costs, including reasonable attorneys’ fees connected therewith, on account of any third-party claims arising out of a) Customer’s breach of section B (Subscription Services) and b) any claim of patent, copyright, or trademark infringement resulting from Customer Data
  3. General. The indemnification obligations in this Section H will only apply where, and shall be conditional upon: (a) the Party seeking indemnification promptly notify the other Party of the claim and cooperate with the Party in defending the claim; (b)the indemnifying Party will have full control and authority over the defense, except that: (i) any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and (ii) the other Party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

I.   Limitation of Liability 

  1. Liability. Each Party shall only be liable for direct damages. As such, each Party shall not be liable to the other Party for any indirect, special, incidental, or punitive damages, including, but not limited to, loss of data, loss of business or any other loss arising out of or resulting from a Party’s performance under this Agreement, even if it has been advised of the possibility of such damages. EXCEPT WHERE EXCLUDED BY APPLICABLE LAW, A PARTY’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. HOWEVER, IN NO EVENT SHALL A PARTY BE ABLE TO CLAIM A LIMITATION ON ITS LIABILITY IN THE EVENT OF (I) ANY THIRD-PARTY IP INFRINGEMENT CLAIM, UNLESS SUCH CLAIM IS BASED ON A PARTY’S WRONGFUL OR ILLEGITIMATE USE OF THE SUBSCRIPTION SERVICES; OR (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

J.   Miscellaneous

 Entire Agreement. This Agreement, together with the Service Order and any other  document mentioned in the Service Order, together constitute the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written and oral agreements with respect to the subject matter. Any other standard or boilerplate terms and conditions included in any document provided by the Customer or an agent or partner to Customer (e.g., click-wrap agreements and purchase orders) are not to be considered agreed upon and will not be binding.

Modifications to this Agreement. From time to time, Provider may modify this Agreement by providing notice to Customer (including by posting such updates on the Services website or in the Platform). Unless otherwise specified by Provider, changes become effective for Customer upon renewal of Customer’s current Subscription Term or entry into a new Service Order for the delivery of Subscription Services. Provider will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Continued use of the Subscription Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If the Customer objects to such changes, prior to the start of the next Subscription Term, Customer may notify Provider of its desire to not renew the Agreement and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the not yet started portion of the Subscription Term.

Governing Law; Venue; Severability. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of New York without reference to conflicts of law principles. The federal and state courts located in New York shall have exclusive jurisdiction to hear and adjudicate any claims, disputes, actions or suits that may arise under or out of this Agreement.

Assignment. Neither Party shall assign this Agreement or any rights or obligations hereunder, without the express written consent of the other Party. However, Provider retains the right at any time to assign this Agreement to any Affiliate by providing notice to the Customer. Both Parties shall furthermore retain the right to assign this Agreement in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of such Party and shall provide written notice to the other Party. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

Subcontracting. In the event of any subcontracting, Provider shall remain liable for the acts or omissions of its subcontractors as if they were employees. Provider may not rely on a breach by a subcontractor to avoid its own liabilities under this Agreement.

Publicity. Customer consents to Provider’s use of Customer’s name, logo, or trademarks or its affiliates’ name(s), logo(s), or trademarks in marketing, advertising, or promotional forms, including but not limited to, customer lists, sales presentations, websites, press releases, or other marketing, advertising or promotional media.

Relationship of Parties. Provider and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Provider and Customer. Neither Provider nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent except as otherwise expressly provided herein. Each Party intends that this Agreement shall not benefit, or create any right or cause of action in or on behalf of, any person or entity other than Customer and Provider.

Severability and Waiver. If any covenant, condition, term, or provision contained in this Agreement is held or finally determined to be invalid, illegal, or unenforceable in any respect, in whole or in part, such covenant, condition, term, or provision shall be severed from this Agreement, and the remaining covenants, conditions, terms and provisions contained herein shall continue in force and effect, and shall in no way be affected, prejudiced or disturbed thereby. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party. No amendment or waiver to this Agreement, including any Statement of Work hereto, shall be effective unless in writing and signed by the parties

Insurance. During the term of this Agreement and for two (2) years thereafter, each Party shall at all times keep in effect appropriate insurance policies, with financially sound and reputable insurers, covering any claims for damages which the other party may be entitled to under this Agreement or as required by statutory law.

Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Provider and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any user to access or use the Service in any capacity in a U.S.-embargoed country or region or for use in violation of any applicable export law or regulation (e.g., nuclear, chemical, or biological weapons proliferation, or missile-development purposes).

 Anti-Corruption and Ethical Conduct. Each Party represents that it has not received, been offered, or offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of its employees, affiliates or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. The Parties and their employees are obliged to desist from any practice which may lead to penal liability due to crimes in violation of competition, fraud, guaranteeing advantages, acceptance of bribery or other corruption crimes. The Parties shall: (i) comply with all applicable laws, statutes, and regulations relating to anti-bribery and anti-corruption; (ii) have in place throughout the term of the Agreement policies and procedures to ensure compliance with anti-corruption regulation; (iii) promptly report to the other Party if it receives any request or demand for any undue financial or other advantage of any kind received by Customer or any of its Affiliates; (v) ensure that all third parties associated with it who are delivering services or goods in connection with this Agreement comply with this Section J(10).