Governing Services Agreement
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LAST UPDATED: July 1, 2021
The SurveyMonkey Apply/FluidReview service (“SurveyMonkey Apply/FluidReview” or the “Service”) is provided subject to these Service-Specific Terms (“Terms”) and any Momentive order form or similar Momentive document under which Customer purchased the Service (“Order Form”).
Capitalized but otherwise undefined terms in these Terms have the meanings given to them in the Order Form.
1.1 Configuration Services.
If Customer has ordered a new SurveyMonkey Apply/FluidReview subscription, Momentive will also provide services to configure that subscription for Customer (“Configuration Services”). Unless a specific Statement of Work (“SOW”) for the Configuration Services is agreed between the parties in a separate document signed by the parties or on the Order Form, Configuration Services will be provided in accordance with Sections 2 to 4, including the Scope of Work defined therein (“Scope of Work”).
1.2 Changes to SOWs.
Customer may submit to Momentive written requests to change the scope of Project Services described in a SOW (each such request, a “Change Order Request”). Momentive may consider such Change Order Request, but Momentive has no obligation to do so. If Momentive elects to consider such a Change Order Request, then Momentive will promptly notify Customer if Momentive believes that the Change Order Request requires an adjustment to the fees or to other parts of the SOW for the performance of the Project Services. In such event, the parties will negotiate in good faith a mutually acceptable adjustment to the SOW. Momentive will continue to perform Project Services pursuant to the existing SOW and will have no obligation to perform any Change Order Request unless and until the parties have agreed in writing to adjust the SOW.
Unless otherwise specified in an applicable SOW, Customer will reimburse Momentive for all reasonable expenses incurred and invoiced by Momentive while performing the Configuration Services, including without limitation, transportation services, lodging, meal and out-of-pocket expenses related to the provision of the Configuration Services.
2.1 Customer Responsibilities.
Customer acknowledges that providing Momentive with timely access to Customer’s facilities, equipment, assistance, cooperation, data, information and materials from Customer’s agents and employees (“Cooperation”) is essential to the performance of the Configuration Services, and that Momentive will not be liable for any deficiency or delay in performing the Configuration Services if such deficiency or delay results from Customer’s failure to provide full Cooperation as required hereunder. Cooperation includes, without limitation:
(a) designating a project manager or technical lead to liaise with Momentive during the course of receiving the Configuration Services;
(b) allocating and engaging additional resources as may be required to assist Momentive in performing the Configuration Services; and
(c) making available to Momentive any data, information and any other materials required by Momentive to perform the Configuration Services, such as any data, information or materials specifically identified in these Terms (collectively, “Customer Materials”). Customer will be responsible for ensuring that all Customer Materials are accurate and complete.
2.2 Momentive Obligations.
If the Configuration Services require Momentive to provide those Configuration Services on Customer’s premises, Momentive’s employees and subcontractors will comply with all reasonable security practices and procedures generally prescribed by Customer and provided in writing to Momentive in advance. Momentive employees and subcontractors will not be required to sign any waivers, releases or any other documents to gain access to Customer’s premises in connection with the performance of the Configuration Services and all such documents will be invalid and have no effect.
2.3 Primary Contacts.
Each party will designate in each SOW one or more individuals who will be the primary point of contact between the parties for all matters relating to the Configuration Services to be performed thereunder. A party may designate a new primary point of contact by written notice to the other party.
2.4 Configuration Services Warranty.
Momentive warrants that the Configuration Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of 30 days from the completion of any Configuration Services. As Customer’s sole and exclusive remedy and Momentive’s entire liability for any breach of the foregoing warranty, Momentive will, at its sole option and expense, either promptly re-perform any Configuration Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Configuration Services.
3.1 Rights to Configuration Services Deliverables.
The parties acknowledge that any Configuration Services provided under these Terms primarily involve the configuration of Customer’s subscription to SurveyMonkey Apply/FluidReview and not the creation of any Deliverables. If any Deliverables are created or developed by Momentive in connection with providing the Configuration Services, each such Deliverable will be owned by Momentive and the Customer will not obtain any rights, title or interest in that Deliverable unless any SOW under which it was created or developed expressly designates that Deliverable as a “Customer-owned Deliverable” or to be owned by the Customer (“Customer-owned Deliverable”). The Customer will not obtain any rights, title or interest in any Momentive Background IP, whether or not it is incorporated into, or used in connection with creating or developing, a Deliverable or Customer-owned Deliverable. Momentive and its licensors retain ownership to the Deliverables created or developed by Momentive in connection with providing the Configuration Services and the Momentive Background IP (together, the “Momentive Materials”).
3.2 Ownership of Customer-owned Deliverables.
Subject to Momentive’s rights in the Momentive Materials, Momentive agrees that the Customer will own (and Momentive hereby assigns to the Customer) all rights, title, and interest in the Customer-owned Deliverables, including the Intellectual Property Rights subsisting in those Customer-owned Deliverables. The Customer hereby grants to Momentive and its contractors, a worldwide, non-exclusive, non-transferable, non-sublicensable, and revocable (upon breach) license to use the Customer-owned Deliverables only to the extent required for Momentive to provide the Services and Configuration Services to the Customer.
Customer has engaged Momentive to configure a SurveyMonkey Apply/FluidReview site (“Site”) for one or more programs as specified in the Agreement (each a “Program”).
4.2 Project and Launch Management.
Momentive will assign an implementation specialist to oversee the delivery of the Configuration Services. The goal of the implementation specialist is to facilitate a guided, controlled, coordinated, and informed engagement. The implementation specialist will:
(a) provide a single point of contact for Customer inquiries throughout the engagement;
(b) coordinate and manage activities owned by various internal Momentive groups throughout the engagement;
(c) schedule and facilitate a project initiation session;
(d) provide a regular project status update to Customer;
(e) identify and communicate any project risks along with mitigation strategies to Customer;
(f) provide primary Customer contacts with ad-hoc consulting/training related to SurveyMonkey Apply/FluidReview configuration options;
(g) schedule and facilitate a project closeout session and transition to the support organization.
4.3 Requirements Phase.
(a) Momentive will work with Customer to document the required Program workflows.
(b) Based on Customer-supplied materials and a requirements review session, Momentive will produce a Scope of Work. The Scope of Work will serve as the basis for the configuration and the functional and user-acceptance testing of SurveyMonkey Apply/FluidReview.
(c) The implementation specialist will produce an asset catalog which will list (to a reasonable degree of granularity and specificity) each element that requires input from Customer (“Assets”). Examples of Assets are on-screen text, email subject and body content, and forms. Customer is responsible for providing all listed Assets.
(d) The implementation specialist will do one review of the Scope of Work and the Assets with Customer and will make any adjustments reasonably requested by Customer. After any such adjustments, the Scope of Work will be considered final. Any future changes will require a Change Order Request.
(e) If during the development of the Scope of Work it is determined that the Site configuration, as requested, will exceed any of the SurveyMonkey Apply/FluidReview package limits as defined in the Agreement (or relevant order form under the Agreement), the project may be put on hold while the parties negotiate in good faith to resolve the issue. It is expected that such resolution would involve either adjusting the terms of the Agreement or reducing the scope of the implementation to conform to the Agreement.
4.4 Configuration and Setup.
After the Scope of Work is finalized and Customer has provided the Assets, the implementation specialist will configure the Site and perform functional testing.
4.5 User Acceptance Testing.
After the Site is configured and tested, Momentive will provide Site access for Customer to review the Site and conduct user acceptance testing.
(a) Customer may report any issues through the designated issue tracking system. Momentive will provide access and reasonable training to Customer’s staff who will be testing and reporting issues.
(b) Momentive and Customer will mutually review, investigate, and prioritize reported issues.
(c) Momentive will correct any deviations in the Site from what is documented in the final Scope of Work.
(d) Customer is responsible for making any adjustments to elements that were created from the Assets. For clarity, such elements are intentionally implemented in a way that allows Customer to maintain and update them at any point without ongoing support from Momentive. Adjustments covered may include, without limitation, typographical errors replicated from the original Asset, changes to formatting (bold, italics, font, color, etc.), new or adjusted email language, adding or removing questions from forms, changing pick-list values in a form question, or changing question labels. Momentive will provide reasonable guidance for any such adjustment which may include providing documentation or walking Customer through the solution using an online screen-sharing technology.
4.6 Assumptions, Acknowledgements and Exclusions.
Momentive’s obligations under these terms are subject to the following assumptions:
(a) No custom functionality is being delivered under the scope of the SOW. All delivery under the SOW will make use solely of the Service’s existing features.
(b) Task estimates in the SOW include time related to project management, software configuration, quality assurance, and documentation activities.
(c) Unless otherwise specified above as a specific item in scope, Customer is responsible for all training of reviewers, applicants, and other users of the Site.
(d) Customer acknowledges that any changes to the configuration by Customer after the completion of the Configuration Services delivered under the SOW may impact the functionality and/or performance of the Site and Customer assumes responsibility for any such changes.
4.7 Project Timeline.
(a) The start date of Configuration Services will be determined based upon the availability of resources at the time the Order Form is executed. The length of the Configuration Services will be based upon the project scope, but in no event will exceed 3 months. Prior to commencement, customer may put the Configuration Services on hold for a reasonable length of time, provided that once the Configuration Services have begun, the timeframe for completion of these services will not exceed 3 months.
(b) The project timeline assumes that the project scope outlined above is accurate, and does not reflect any delays in receiving information from Customer or pre-launch activities (such as Asset delivery or user acceptance testing).
(c) All purchased hours and rights expire 12 months from the effective date of the Order Form unless otherwise stated in the Order Form. Unused hours and rights have no residual value and Customer will not be entitled to any refund for them.
(d) Renewing customers may receive up to 5 hours of Configuration Services for EnterprisePlus sites and up to 3 hours of Configuration Services for Enterprise and Pro Sites to make modifications to the Customer’s Site prior to 90 days or within 60 days of the end of the initial term of a new SurveyMonkey Apply/FluidReview subscription (“Renewal Configuration Services”). All Renewal Configuration Services expire 60 days from the end of such initial term. These hours are non-transferable between years and are not eligible for use after expiration. Renewal Configuration Services have no monetary value and Customer will not be entitled to a refund if it receives less than the alloted hours of such Renewal Configuration Services.
4.8 Change Management.
The fees and scope set forth in the Agreement reflect both parties’ best knowledge at the time the Order Form was executed; however, both parties recognize that many factors may influence the project scope. Momentive will use commercially reasonable measures to deliver Configuration Services as described. If at any point Momentive anticipates a material change in the scope of the Configuration Services, Momentive will notify Customer as soon as reasonably possible. Upon receipt of such notice, the parties shall negotiate a Change Order Request in good faith.
Customer may incur overages by exceeding their purchase limits for the following:
1. Applicant – a person or entity who has started an application during a subscription year.
2. Program – the application process, administered by the Customer, to collect, review and manage applications, as specified in the Agreement.
If the number of Programs or Applicants exceeds the units purchased, the additional units will be charged at the per unit pricing for those additional units as specified on the Order Form for the underlying subscription (or, absent such specification, at the same per unit pricing as the underlying subscription pricing), prorated for the portion of that subscription term remaining at the time the subscription units are added. Any such additional subscription units will renew or terminate on the same date as the underlying subscription. Subscription units relating to a Service cannot be decreased during a subscription term for that Service.
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