This Master Subscription and Services Agreement is effective as of the date of the first signed Provisioning Documents between Inniti Aps, Langebrogade 4, Copenhagen 1411, Business registration no. 38802380 (“Inniti”) and the respective customer, (“Customer”), each a “Party” and, collectively, the “Parties.” The Parties hereby agree as follows:
This Master Subscription and Services Agreement applies to Customer’s use of (i) the services offered by Inniti that are listed in one or more Service Orders. Subscription Services and Professional Services are collectively referred to as the “Inniti Services” and Service Orders and Statements of Work are collectively referred to as “Provisioning Documents.”
This Master Subscription and Services Agreement and all executed Provisioning Documents, including any incorporated attachments, addenda and exhibits, collectively constitute the “Agreement.”
“Affiliates”: Means an entity that directly or indirectly controls, is controlled by, or is under common control with another entity where control means the direct or indirect ownership of 50% or more of the voting power or equity in an entity or de facto control by an entity of another entity’s decision making.
“Confidential Information”: Means any information or data disclosed by either Party marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential considering the nature of the information and the circumstances of disclosure.
“Confidential Information” does not include any information which (a) is in the public domain through no fault of the receiving Party; (b) was known to the receiving Party, without restriction, prior to disclosure by the disclosing Party; or (c) is or was independently developed by the receiving Party without the use of or reference to the disclosing Party’s Confidential Information.
“Professional Services”: Means the consulting services provided by Inniti to Customer in support of Customer’s use of the Subscription Services.
“Customer Data”: Means the Data managed by Customer in the Subscription Services.
“Documentation”: Means the printed and digital instructions, online help files, technical documentation, and user manuals made available by Inniti for the Inniti Services, as updated from time to time.
“Subscription Services”: Means the hardware and software as a service offering, including related programs, functions and services provided by Inniti to Customer (including, Inniti Connectors, Inniti Edge Servers, and Inniti Platform as well as any, documentation and technical support made available by Inniti to Customer in connection with such services) set forth in the applicable Service Order, and any subsequent updates or upgrades of the foregoing.
“Service Order”: Means that certain Inniti service order forms are mutually signed by the parties that set forth the applicable Setup fees, Subscription Services and Fees startup terms.
3. Inniti Services
3.1. Provision of Subscription Services and License.
Subject to the terms of this Agreement and the applicable Service Order, Inniti will make the Subscription Services available to Customer, and hereby grants Customer a non-exclusive right to access and use the Subscription Services and Documentation during the term of the Service Order, including the right to write and execute software applications (“Customer Applications”) that interface with the Subscription Services.
Inniti will provide the Subscription Services in accordance with the Service Level Agreement at https://www.inniti.io/sla and the Security Standards at https://inniti.io/security-standards-for-inniti.
3.2. Customer Responsibilities. Customer will comply with the Inniti Acceptable Use Policy available at https://www.inniti.io/aup and Regulation 2016/679 (the “GDPR”).
Customer will be responsible for all use of the Subscription Services and Documentation under its account and the accuracy, quality, integrity, and legality of Customer Data and Customer Applications and back up any data and information used in conjunction with the Subscription Services separately and at regular intervals.
Customer will use at least the same degree of effort as with protecting the customer’s own services to prevent unauthorized access to or use of the Subscription Services via Customer Applications or Customer accounts and will notify Inniti promptly of any unauthorized access to the Subscription Services (and Customer hereby permits Inniti to deactivate such compromised accounts or users).
With Customer’s permission, Inniti may log into user accounts to debug the Subscription Services.
3.3. Changes. Inniti may modify the Subscription Services and reserves the right to discontinue individual features within the Subscription Services from time to time and will provide notice of such changes to customers.
To the extent such changes result in a material reduction of overall functionality without a comparable replacement, Inniti will refund a pro-rata portion of all prepaid fees associated with the discontinued Subscription Services for which no comparable replacement was provided.
3.4. Affiliates. Any Affiliate of Customer or Inniti may enter into a Provisioning Document and Customer’s or Inniti’s rights, duties, liabilities and obligations under this Agreement, as the case may be, will apply and inure to such Affiliate signatory (or contractor thereto, as permitted below). Additionally, Customer may not sublicense the rights granted in section 3.1, to its Affiliates unless specifically agreed in written consent with Inniti.
4. Fees and Payment
4.1. Fees and Payment. Customer will pay in full to Inniti the fees set forth in the applicable Provisioning Document. Additional usage fees for use of the Subscription Services above any applicable volume thresholds may be applied.
Except as expressly set forth herein or in any applicable Provisioning Document (a) fees are quoted and are due and payable in Euros, net of taxes and will be invoiced in full on the start date of the applicable service period; (b) fees paid are non-refundable, and (c) payment obligations are non-cancellable.
4.2. Net of Taxes; No Set-off. Fees do not include sales tax, VAT, GST or other applicable taxes. Customer is responsible for paying all taxes associated with its purchases hereunder (including withholding taxes possibly imposed on its payments hereunder).
4.3. Expenses. Customer will be responsible for all reasonable travel expenses, hotel accommodations, and other reasonable out-of-pocket expenses incurred by Inniti in connection with the Professional Services. Such expenses will be charged at cost in agreement with Customer upfront. These expenses will be included on the relevant invoice for the Professional Services.
4.4. Inflation. The yearly license fees set forth in the applicable Service Order will be increased on a calendar year basis after the first of the license agreement start date specified in the applicable Service Order by an amount equal to the standard European inflation rate for the last calendar year or minimum 2% to cover the average yearly inflation rate in Europe as well as other increases in costs.
5. Proprietary Rights and Confidentiality
5.1 Inniti ’s Ownership Rights. Inniti retains all rights, title, and interest in all its trademarks, service marks, logos, and other intellectual property rights in and to all Inniti Services, and any derivative works, modifications, or improvements of any of the foregoing even though paid for by the Customer.
5.2. Customer Data and Customer Applications. Customer data and Customer Applications are owned exclusively by Customer. Customer grants to Inniti a revocable, fully paid, non-exclusive, worldwide license to copy, distribute and use Customer data for the sole purpose of providing the Inniti Services to Customer.
5.3. Confidentiality. Each Party will use the Confidential Information of the other solely in accordance with the provisions of this Agreement and will not disclose, or permit Confidential Information to be disclosed, directly or indirectly to any third Party without the other’s prior written consent, except as otherwise permitted herein.
Either Party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors, and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations at least as stringent as those herein.
Each Party will exercise due care in protecting Confidential Information from unauthorized use and disclosure and will promptly notify the other in writing if it becomes aware of any violations of confidentiality obligations set forth herein.
5.4. Aggregated Information. Inniti may aggregate, collect and analyse information relating to the Inniti Services and may use such information to develop and improve the Inniti Services and other Inniti offerings, including disclosure of such information to third parties in an aggregated and anonymized format such that no Customer nor any individual or relevancy can be identified.
6. Representations, Warranties and Disclaimers
6.1. Inniti. Inniti warrants that it will, consistent with prevailing industry standards, maintain the Subscription Services in a manner that minimizes errors in the Subscription Services. Inniti further warrants that the Inniti Services will be performed in a professional and workmanlike manner according to generally accepted industry standards.
6.2. Warranty Exclusions. The foregoing warranties shall not apply to any errors or defects in Inniti Services resulting in whole or in part from: (a) Customer’s use of the Inniti Services in a manner not conforming with the terms herein, including but not limited to, any use of the Subscription Services in violation of the Acceptable Use Policy; (b) modification of the Inniti Services by or on behalf of Customer without Inniti ’s express, prior, written consent; or (c) Customer’s use of any third-party applications, portions of applications, products, or services.
6.3. Customer. Customer warrants that it (a) has the necessary rights to use and make available Customer Applications and Customer Data in connection with the Inniti Services, and (b) complies with the GDPR in connection with such use of Customer Applications and Customer Data.
6.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE EXTENT NOT PROHIBITED BY LAW, INNITI DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES THAT THE INNITI SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION OR WILL BE FREE OF VULNERABILITIES.
6.5. Warranty Remedies. Customer will notify Inniti of any Inniti Services non-conformance under Section 6.1 (Inniti Warranty) without undue delay and in no case later than within 30 days of the date on which the condition giving rise to the claim first arose.
Provided that Customer notifies Inniti within such time and provides reasonable evidence of the non-conformance, Inniti will correct the non-conformance at no additional charge.
If Inniti cannot re-perform or correct such non-conforming Inniti Services as warranted within a reasonable time, Customer will be entitled to a reduction in fees proportionate to the non-conformity or to terminate the affected Provisioning Document immediately in accordance with the Service Level Agreement at https://www.inniti.io/sla.
Except for damages claims subject to the liability section below, the foregoing remedy is Customer’s sole remedy in case of a breach of the limited warranty above.
7.1. Indemnification by Inniti. Inniti will indemnify and defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party to the extent alleging that the use of the Inniti Services as permitted hereunder infringes or misappropriates a valid patent, copyright, trademark or trade secret (“Claim”). Inniti ’s obligation to indemnify is subject to the limitations in section 8.
7.2. Indemnification by Customer. Customer will indemnify and defend Inniti against any claim made or brought against Inniti by a third party arising from Customer’s violation of the Inniti Acceptable Use Policy; or alleging that the Customer Data, the Customer Materials, or Customer Applications infringe or misappropriate a valid patent, copyright, trademark or trade secret and will pay all damages and costs finally awarded against Inniti or as set forth in any approved settlement as a result of such claim.
8. Limitation of Liability
8.1 Liability. The contractual and legal responsibilities of each Party to the Agreement shall be construed in accordance with the provisions of Danish law.
8.2. Limitation. Neither Party shall be liable to the other in contract, tort (including negligence), breach of statutory duty, or otherwise arising out of or in connection with this Agreement for (a) any loss of profit, production, data, goodwill, or business opportunities; or (b) any type of indirect, special, or consequential loss or damage including punitive damages, even if that loss or damage was reasonably foreseeable or that Party was aware of the possibility of that loss or damage arising.
8.3. Aggregate Liability. A Party's aggregate liability for loss or damages during the term of the Agreement will in no circumstance be greater than the amount corresponding to the fees paid by the Customer during the past twelve (12) months calculated from the day the claim was raised.
8.4. Product Liability. Any further liability of Inniti or its Affiliates for compensatory damages pursuant to the Danish Product Liability Act shall remain unaffected by the limitations of liability agreed herein.
8.5. No “Initial Defects.” Upon implementation of any Inniti solution, Inniti will together with Customer conduct a review of the established solution to validate that the agreed functionality and solutions are established and working.
If the review does not lead to further changes, Customer acknowledges and agrees that the Subscription Services are free of “initial defects” and Inniti ’s no-fault strict liability for such defects is excluded.
9.1. Term. The term of this Agreement begins on the Effective Date and will remain in effect until terminated in accordance with its terms.
9.2. Termination. Each Party has the right to terminate this Agreement upon written notice if (a) there is no Provisioning Document currently in effect; (b) the other Party commits any material breach of this Agreement and fails to remedy such breach (if capable of remedy) within 30 days after written notice of such breach; or (c) subject to applicable law, upon the other Party’s liquidation, the commencement of dissolution proceedings, insolvency, or assignment of substantially all its assets for the benefit of creditors, or if the other Party becomes the subject of bankruptcy or similar proceeding that is not dismissed within 60 days.
9.3. Suspension. Inniti may suspend the entire Customer’s account and product and access to the Subscription Services immediately on notice if (a) Inniti reasonably determines (i) Customer violated or is violating the Acceptable Use Policy; or (ii) Inniti ’s provision of any of the Inniti Services is prohibited by applicable law or has become impractical or unfeasible for any legal or regulatory reason, or (b) Customer fails to pay an undisputed invoice within 15 business days after Inniti has provided Customer with a written reminder notice (of which email is sufficient) of late payment.
Any suspension by Inniti of the Subscription Services as a result of this paragraph will not relieve Customer of its payment obligations hereunder. Inniti will promptly lift the suspension upon Customer’s payment or remedy of the triggering violation, as applicable.
9.4. Survival. Upon termination of this Agreement, all rights and obligations granted therein will immediately terminate except that any accrued rights and the following sections will survive: 3.2 (Customer Responsibilities), 4 (Fees and Payment), 5 (Proprietary Rights and Confidentiality), 6.3 (Warranty Disclaimer), 7 (Indemnification), 8 (Limitation of Liability), 9 (Termination), and 11 (General).
10. Data Security and Data Privacy
10.1. Data Security. Inniti shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security of the Subscription Services and Customer Content in accordance with the Inniti Security Standards.
10.2 Data Privacy. The Inniti Data Processing Addendum for Inniti at https://www.inniti.io/dpa shall apply in respect of the processing of personal data. Accordingly, Inniti may engage Inniti Affiliates and third-party sub-processors currently listed at https://inniti.io/list-of-data-sub-processors to process personal data on Inniti 's behalf in order to provide the Subscription Services.
11.1 . Compliance with Laws. Each Party agrees to abide by all laws, ordinances, and regulations (whether international, federal, state, local, or provincial) to the extent applicable to its performance under this Agreement.
11.2 Amendments. Any amendments to the MSA shall be made and agreed in writing between the Parties to be valid.
11.3. Assignment; Delegation. Neither Party may assign or otherwise transfer this Agreement, in whole or in part, without the other Party’s prior written consent, except that either Party may assign this Agreement without consent to a successor to all or substantially all of its assets or business.
In addition, Customer agrees that Inniti may perform its obligations through an Affiliate, provided that Inniti remains responsible for its obligations hereunder and liable for such Affiliate’s performance as if it were Inniti . Any attempted assignment, delegation, or transfer by either Party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their respective successors and assigns.
11.4. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the Kingdom of Denmark, exclusive of its rules governing choice of law and conflict of laws.
11.5. Entire Agreement. This Agreement, including linked terms incorporated by reference, comprises the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations, and agreements (oral and written).
No oral or written information or advice given by Inniti, its agents, or employees will create a representation, warranty or guarantee or in any way increase the scope of the warranties in this Agreement.
11.6. Order of Precedence. In the event of any discrepancy between the contractual documents, the order of precedence is the following, except that specific portions of a lower-ranking document may supersede specified portions of a higher-ranking document expressly noted: (i) Master Subscription and Services Agreement, (ii) Service Level Agreement, (iii) Security Standards, (iv) Provisioning Document, (v) Inniti Data Processing Addendum.
11.7. Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption, or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event").