These Master Subscription Agreement Terms and Conditions (these “Terms and Conditions”) are entered into by and between MonkOS, Inc., a Delaware corporation (“MonkOS”), and the counterparty identified as the customer in the applicable Order Form (“Customer”). These Terms and Conditions, together with all Order Forms (as defined below), constitute this “Agreement”. If you are accepting these Terms and Conditions or an Order Form on behalf of your employer or another entity (which will be deemed to the case if you sign up for a MonkOS Product (as defined below) using an email address from your employer or such entity), then the “Customer” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.
Subject to this Agreement, MonkOS will use commercially reasonable efforts to make the MonkOS Product available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the MonkOS Product (including a non-sublicensable license to install and use the Client-Side Software) for its internal business purposes to manage Customer Applications in accordance with the Documentation. Customer may permit Users to use the MonkOS Product on its behalf. Customer is responsible for provisioning and managing its User accounts, its Users’ actions through the MonkOS Product and their compliance with this Agreement.
Customer acknowledges that MonkOS’ provision of the MonkOS Product is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner. Customer will (a) prevent unauthorized access to or use of the MonkOS Product and notify MonkOS promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the MonkOS Product and (b) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the MonkOS Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and MonkOS will have no liability for such failure.
Certain “free” or “open source” based software (“FOSS Software”) may be shipped with the Client Software but is not considered part of the Client Software hereunder. Customer’s right to use the FOSS Software is governed by the applicable open source license, and not this Agreement.
Except as otherwise set forth in the applicable Order Form, Customer will pay MonkOS the subscription fees, additional usage fees and other fees set forth in MonkOS’ standard schedule of fees, as may be updated from time to time. If Customer is required to select a payment plan and provide information regarding Customer’s credit card or other payment instrument, then (a) Customer represents and warrants that such information is true and that Customer is authorized to use the payment instrument, and (b) Customer will promptly update its account information with MonkOS with any changes (e.g., a change in billing address or credit card expiration date). Customer acknowledges that its subscription automatically renews (as described below) and hereby authorizes MonkOS to bill Customer’s payment instrument in advance in accordance with the terms of the applicable payment plan. MonkOS reserves the right to change its prices, and if MonkOS does change prices, MonkOS will provide notice of the change through the MonkOS Product user interface, a pop-up notice, email, or through other reasonable means, at MonkOS’ option, at least thirty (30) days before the change is to take effect. Any changed pricing will become effective at the time of renewal of Customer’s subscription. If any fees are invoiced to Customer, Customer will pay those amounts within thirty (30) days of the date of receipt of the applicable invoice, unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in the applicable Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify MonkOS within thirty (30) days and the parties will seek to resolve the dispute as soon as reasonably practicable.
MonkOS may suspend access to the MonkOS Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If MonkOS has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by MonkOS.
All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of MonkOS. Customer will not withhold any taxes from any amounts due to MonkOS.
As between the parties, MonkOS exclusively owns all right, title and interest in and to the MonkOS Product, System Data and MonkOS’ Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials, Customer Applications and Customer’s Confidential Information. “System Data” means data collected by MonkOS regarding the MonkOS Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the MonkOS Product.
Customer may from time to time provide MonkOS suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the MonkOS Product. MonkOS will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. MonkOS will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
Customer further agrees that, notwithstanding anything herein, MonkOS has the right to aggregate, collect, retain and analyze Customer Materials, Configurations and other data and information resulting from use of the MonkOS Product and MonkOS will be free (during and after the term hereof) to (i) use such data and information to improve MonkOS’ products and services, and (ii) disclose such data and other information solely in an aggregated or anonymized format that does not identify Customer or any individual.
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting such Confidential Information from unauthorized use and disclosure.
Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the MonkOS Product; (b) attempt to probe, scan or test the vulnerability of the MonkOS Product, breach the security or authentication measures of the MonkOS Product without proper authorization or wilfully render any part of the MonkOS Product unusable; (c) use or access the MonkOS Product to develop a product or service that is competitive with MonkOS’ products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the MonkOS Product or otherwise offer the MonkOS Product on a standalone basis, use the Client Software in an application service provider or managed service provider environment, or copy the Client Software onto any public or distributed network (e) or to build managed service using MonkOS products f) use the MonkOS Product to process any personal data; or (f) otherwise use the MonkOS Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
Customer warrants that it has all rights necessary to deploy the Customer Applications and provide any information, data or other materials that it provides hereunder, and to permit MonkOS to use the same as contemplated hereunder.
THE MONKOS PRODUCT (INCLUDING ANY NO-CHARGE PRODUCTS (AS DEFINED BELOW)) AND ANY CONFIGURATIONS ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. MONKOS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE MONKOS PRODUCT (INCLUDING NO-CHARGE PRODUCTS) AND ANY CONFIGURATIONS. WITHOUT LIMITING THE FOREGOING, MONKOS DOES NOT WARRANT THAT THE MONKOS PRODUCT (INCLUDING NO-CHARGE PRODUCTS) OR CONFIGURATIONS WILL BE ERROR-FREE, TIMELY OR SECURE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE OR PERFORMANCE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. MONKOS IS NOT RESPONSIBLE OR LIABLE FOR ANY CONFIGURATIONS OR THIRD PARTY SERVICES AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
MonkOS may offer certain MonkOS Products at no charge, including free accounts, trial use and pre-release, alpha or beta versions or features (collectively, “No-Charge Products”). Customer’s use of No-Charge Products is subject to any additional terms that MonkOS may specify. Except as otherwise set forth in this Section, these Terms and Conditions apply to No-Charge Products. MonkOS may modify or terminate Customer’s right to use No-Charge Products at any time. MONKOS’ MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.
Customer will defend, indemnify and hold MonkOS and its affiliates harmless against any actual or threatened losses, damages, liabilities or expenses (including reasonable attorneys’ fees) arising out of any third party claim, proceeding, governmental investigation or enforcement action relating to (a) Customer’s use or misuse of any Customer Application, MonkOS Product or Configuration or (b) Customer’s breach of any term or condition of this Agreement (“Claim”). MonkOS and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at Customer’s expense. MonkOS and its affiliates reserve the right, at Customer’s expense, to retain separate counsel for themselves in connection with any Claim or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim that is subject to indemnification under this Section. Customer will also be liable to MonkOS for any costs and attorneys’ fees MonkOS incurs to successfully establish or enforce MonkOS’ right to indemnification under this Section.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL MONKOS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF MONKOS HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) AGGREGATE DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE THREE (3) MONTHS PRECEDING THE INCIDENT OR CLAIM. THE FOREGOING PROVISIONS ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of an Order Form, Customer will destroy any copies of Client Software provided under such Order Form.
Customer agrees that MonkOS may refer to Customer’s name and/or trademarks in MonkOS’ marketing materials, website and/or other publicity. If Customer does not agree to MonkOS’ use of Customer’s name or trademark in MonkOS’ marketing materials, Customer may opt-out of such use by providing written notice to MonkOS within fourteen (14) days of the date of the initial Order Form.’
The MonkOS Product, including any software MonkOS may provide in connection with the MonkOS Product, may be subject to applicable export control laws and economic sanctions regulations. In receiving access to the MonkOS Product, Customer agrees to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to the MonkOS Product, and to the extent consistent with these Terms and Conditions, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the MonkOS Product. These laws include restrictions on destinations, users and end use. Without limitation, Customer may not transfer any software or other aspect of the MonkOS Product without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). Customer represents that it is not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and Customer further warrants that Customer will immediately notify MonkOS and discontinue use of the MonkOS Product if Customer becomes placed on any such list or under the control of or an agent for any entity placed on such a list.
Neither party hereto 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 related to this Agreement. 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 successors and assigns.
MonkOS reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions will become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws, or as necessary for new features) MonkOS may specify that such modifications become effective during Customer’s then-current subscription term. Except as set forth in this Section, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.
No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
This Agreement will be governed by the laws of the State of New York, USA, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of New York, New York, USA, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its MonkOS Product account. Notices to MonkOS must be sent to the following:
330 Wythe Avenue
New York, NY 11211
This Agreement (consisting of these Terms and Conditions and each Order Form) comprises the entire agreement between Customer and MonkOS 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 MonkOS, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. In the event of a conflict between these Terms and Conditions and an Order Form or SOW, the terms of the Order Form will control.
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”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
MonkOS provides the MonkOS Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the MonkOS Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The MonkOS Product was developed fully at private expense.
For purposes hereof, “including” means “including without limitation”.