MTZ360 Monetization Cloud Platform Service Terms
Last updated June 13, 2022
The following terms and conditions (the “Service Terms”) are a legal contract between Customer and Monetize360, and governs the use of and access to the Platform Service. By executing an Order Form, selecting the “agree” or “accept” option or by using Monetize360’s Platform Service, which is offered subject to these Service Terms, Customer agrees to be bound by these Service Terms. Please read them carefully before proceeding. If you have any questions, please contact us using the contact form at https://www.monetize360.com/contact.
1. PARTIES
In these Service Terms, “Monetize360” refers to Monetize360, Inc., and “Customer” refers to the subscriber to the Monetize360 Platform Service identified on an executed Order Form. Customer may not use the Platform Service unless it accepts these Service Terms and has the power and legal right to form a contract with Monetize360. Any individual subscribing to or using the Platform Service in the name of or as part of his or her responsibilities within a company or other organization, or who submits to the Platform Service data controlled by such company or organization, represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Service Terms.
2. DEFINITIONS
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2.1. “Agreement” means these Service Terms and an Order Form agreed by the parties.
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2.2. “Authorized User” means an individual employee or agent of Customer who has been assigned unique
credentials to access and use the Platform Service, whether or not that individual is accessing or using the Platform Service at any particular time.
2.3. “Customer Access Materials” consists of those API keys, user identification, passwords, and/or URLs associated with Customer and third party data repositories, on-premises software and/or hosted services, which are necessary to allow Monetize360 to access, receive, and transmit the Customer Data.
2.4. “Customer Data” consists of data Customer makes available for processing by the Platform Service and the results of the Platform Service’s processing of the Customer Data.
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2.5. “Customer Materials” means the Customer Access Materials and the Customer Data.
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2.6. “Deliverables” means the work product resulting from any Implementation Services provided by
Monetize360 under this Agreement.
2.7. “Documentation” means the user guide that Monetize360 generally provides to its customers describing the proper use of the Service.
2.8. “End User” means an individual or entity which utilizes Customer’s services, purchases Customer’s goods, or otherwise has a relationship with Customer in which Customer bills such individual or entity.
2.9. “Lab Services” means a product, service or functionality provided by Monetize360 that may be made available to Customer to try at Customer’s option at no additional charge, which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
2.10. “Monetize360 SDK/API” means any software development kit and application programming interfaces provided by Monetize360 as a mechanism for access to and utilization of the Platform Service.
2.11. “Order Form” means Monetize360’s online or written order form or account setup form or other written agreement, as submitted by Customer and accepted by Monetize360, that specifies the Platform Service to which Customer subscribes, pricing and any commercial terms for the use of the Platform Service, and that references these Service Terms.
2.12. “Implementation Services” means those services provided by Monetize360 under this Agreement other than the Platform Service, such as consulting, implementation, customization or enhancement of the Platform Service, and training
2.13. “Service Exhibit” means an exhibit attached to this Agreement and numbered serially as Exhibit SE-1, Exhibit SE-2, etc., setting forth additional or modified terms applicable to a specific Service Module or other specific Monetize360 offering.
2.14. “Service Module” means a specific online software module providing a specific set of functionality, as identified in an Order Form.
2.15. “Platform Service” means, collectively, the Service Modules to which Customer has subscribed as set forth in an Order Form, to be supplied by Monetize360 as specified in the Order Form and delivered by Monetize360’s cloud platform.
2.16. “Software” means the Monetize360 proprietary software and associated documentation, used to provide the Platform Service.
2.17. “Statement of Work” or “SOW” means a document executed by the parties and referencing this Agreement, setting out specific Implementation Services to be provided, the Deliverables expected to result, and the terms for the provision thereof, including anticipated timelines, acceptance criteria and process, and payment.
3. USE OF THE PLATFORM SERVICE
3.1. Authorization to Use. Subject to Customer’s compliance with the Agreement, Monetize360 will provide Authorized Users (and, if applicable, End Users) with access to and use of the Platform Service for which Customer has purchased a subscription and for which Customer pays, solely for Customer’s internal business purposes and in accordance with the Documentation. The Platform Service and Monetize360 SDK/API may be used only in accordance with the Documentation and written instructions provided by Monetize360. Customer and its Authorized Users which receive login credentials or Monetize360 SDK/API key(s) will access the Monetize360 SDK/API and Platform Service only using the login credentials and Monetize360 SDK/API key(s) assigned by Monetize360. Monetize360 may monitor the use of the Platform Service to ensure quality, improve Monetize360 products and services, and verify compliance with the Agreement. The use of the Platform Service is further subject to any usage limitations indicated in the Order Form (e.g., maximum number of End Users for a Service Module) or in Monetize360’s applicable service description referenced therein or otherwise provided by Monetize360.
3.2. Customer Administrators. As part of the initial provisioning of the Platform Service, Monetize360 will establish an Authorized User account with administrative rights for certain elements of the Platform Service (an “Admin”). The tools available to Admins permit a variety of actions, including, for example, the creation of additional Admins, creating and deleting Authorized User and End User accounts, approving or rejecting individuals as Authorized Users or End Users with various levels of access, editing or deleting Customer Data, and configuration of certain elements of the Platform Service (as described in Section 3.3). All such actions using the Admin tools will be deemed approved by Customer.
3.3. Configuration. As set forth in an Order Form or SOW, monetize 360 will provide an initial configuration of the Platform Service, which may include user interface branding (for those Service Modules which allow it), mapping data elements for ingestion, processing, and output of Customer Data, establishing business flows, custom data classes, and configuring billing models. Such activities will constitute Implementation Services, as described in more detail in Section 5 below. Certain Service Modules may also allow Customer (through its Authorized Users) to configure some or all of the same elements of such Service Modules. Customer is solely and exclusively responsible for all of the configurations it makes, and the results thereof, including without limitation ensuring that data mapping configurations (whether created by Monetize360 or Customer) remain current with the formats and structures of the data Customer desires to ingest and output.
3.4. Maintenance and Support; SLA.
(a) Monetize360 will provide maintenance and support as follows: (i) maintenance will consist of access to new features or performance improvements in the Platform Service if and when Monetize360 makes any such features or improvements generally available to its subscriber base at no additional charge, and (i) technical support will consist of e-mail, chat or telephone assistance in accordance with Monetize360’s then-current policies at https://www.monetize360.com/support-sla, and if and as agreed in a Service Exhibit to this Agreement, will provide additional levels of support.
(b) Customer is entitled to the commitments and remedies set forth in Monetize 360’s Service Level Agreement as attached to these Service Terms or referenced in the Order Form. The remedies expressly provided in the Service Level Agreement are Customer’s sole and exclusive remedy, and Monetize360’s entire obligation, with respect to any service-level violation.
3.5. Restrictions. Customer may not: (a) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Platform Service, Software or any other associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) provide any third parties other than End Users (if applicable) with direct access to the Monetize360 SDK/API, Platform Service or Software; (c) provide any third parties with access to any of the Platform Service or Software, or use any element of the Platform Service, for time sharing or similar purposes for the benefit of any third party, including without limitation by selling, renting, licensing or otherwise disclosing any elements of the Platform Service; (d) remove any copyright or proprietary notices contained in the Platform Service; (e) breach, disable or tamper with, or develop, use or attempt any workaround for, any security measure or monitoring system provided or used by Monetize360 in connection with the Platform Service or Monetize360 SDK/API; (f) access the Platform Service via any automated system, web crawler or non-human user other than access through and as implemented in the Monetize360 SDK/API; (g) introduce into the Platform Service any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (h) access or use (or permit a third party to access or use) the Platform Service for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Platform Service or for any other benchmarking or competitive purposes; (i) access or attempt to access the Platform Service except through the specific interfaces provided by Monetize360 and identified in the Documentation for use by Customer, Authorized Users and End Users; (j) interfere or attempt to interfere in any manner with the proper workings of the Monetize360 SDK/API or Platform Service, or engage in any activities that adversely affect the functionality or performance of the Monetize360 SDK/API or Platform Service. All rights in the Platform Service and Software not expressly granted herein are reserved.
3.6. Lab Services. From time to time, Monetize360 may make Lab Services available to Customer at no charge. Customer may choose to try such Lab Services in its sole discretion. Lab Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Lab Services are not considered to be part of the “Platform Service” under this Agreement; however, all restrictions, disclaimers, Monetize360’s reservation of rights and Customer’s obligations concerning the Platform Service shall apply equally to the use of Lab Services. Unless otherwise stated, any Lab Services trial period will expire upon the earlier of (a) twelve (12) months from the trial start date or (b) the date that a version of the Lab Services becomes generally available without the applicable Lab Services designation. Monetize360 may discontinue or change Lab Services at any time in Monetize360’s sole discretion and may never make them generally available.
4. CUSTOMER OBLIGATIONS
4.1. Responsibilities in Using Platform Service. Customer is responsible for: (a) maintaining the confidentiality of any user IDs, passwords and other credentials associated with its Platform Service account, (b) all activities that occur with respect to Customer’s account, (c) Customer’s use of the Platform Service and compliance with the Agreement, (d) the Customer Materials, and any other information Customer provides to Monetize360 through any mechanism, (e) ensuring that Customer has secured the authority to provide Monetize360 with all Customer Access Materials provided hereunder, and allow Monetize360 to access any Third Party Integration provider systems on Customer’s behalf. Customer is and shall remain liable for all actions and omissions of its Authorized Users and End Users hereunder or under any applicable separate agreement.
4.2. Compliance. Customer shall use the Platform Service exclusively for proper and legal purposes. In connection with its use of the Platform Service and all instructions to Monetize360 concerning the processing of Customer Data using the Platform Service, Customer will comply with all applicable laws, regulations, the rights of others, and all policies of and Customer agreements with any Third Party Integration Provider. Customer shall not use the Platform Service to collect or process any data in the “special categories of personal data” under the General Data Protection Regulation (Regulation (EU) 2016/679), or that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which Monetize360 and Customer operate, such as (by way of example only) the Health Insurance Portability and Accountability Act, the Children’s Online Privacy Protection Act, and the standards promulgated by the PCI Security Standards Council. Customer shall not use the Platform Service to transmit any bulk unsolicited commercial communications.
4.3. Use Obligations. Customer shall not directly or indirectly, in connection with the use of the Platform Service: (a) facilitate or promote illegal activity, or distribute illegal content; (b) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; or (c) communicate with or collect information from children under the age of 16 years.
4.4. Correction; Suspension. Customer shall promptly notify Monetize360 of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with Monetize360 with respect to: (a) investigation by Monetize360 of any suspected or alleged violation of this Agreement and (b) any action by Monetize360 to enforce the terms and conditions of this Agreement. If Customer’s (or any Authorized User’s or End User’s) use of the Monetize360 SDK/API or Platform Service is deemed by Monetize360, in its reasonable judgement, to not meet the letter or spirit of the standards set forth in the Agreement, Monetize360 may request that Customer make changes to bring its practices into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to Monetize360 at law or in equity, Monetize360 is authorized to suspend access to the Platform Service by Customer or any Authorized User or End User, without liability to Customer. Customer agrees and acknowledges that Monetize360 shall have the right to monitor Customer’s use of the Monetize360 SDK/API and Platform Service from time to time. Upon notice to Customer, Monetize360 reserves the right to immediately suspend, in whole or in part, access to the Platform Service by Customer or any Authorized User or End User in order to prevent imminent harm to Monetize360 or a third party.
5. IMPLEMENTATION SERVICES
5.1. Contacts. Each party will designate in writing the individual who will be its primary point of contact for matters relating to any Implementation Services to be performed under a SOW. A party may designate replacement contacts by written notice to the other party.
5.2. Performance. Monetize360 will use commercially reasonable efforts to provide Customer with the Implementation Services that are specified in the SOW in accordance with the schedule set forth therein. Customer will provide such cooperation and assistance as Monetize360 may reasonably request in order to facilitate the performance of any such Implementation Services.
5.3. Acceptance. Unless otherwise set forth in the SOW, Deliverables will be subject to acceptance tests which are mutually agreed in writing by the parties. Monetize360 will notify Customer in writing when it believes the Deliverables are ready for acceptance testing. Customer may only reject Deliverables for failure to meet the express warranties and specifications set forth in this Agreement or the relevant SOW. Customer will review each Deliverable and notify Supplier within 30 days after receipt (or such other period as may be mutually agreed) if any Deliverable does not materially conform to the express warranties herein or the specifications set forth in the SOW. As Customer’s sole and exclusive remedy for any such failure, Monetize360 will correct the non-conforming Deliverables within 30 calendar days (or such other period as may be mutually agreed) after receiving notice of non- conformance from Monetize360 (“Correction Period”) at no additional cost to Customer, and if Monetize360 does not deliver the conforming Deliverable within the Correction Period, unless otherwise agreed by the parties, Monetize360 will promptly refund any fees paid for that Deliverable. Deliverables shall be deemed accepted by Customer if Customer does not inform Monetize360 of any alleged deficiencies within the prescribed time.
5.4. Deliverables. The parties acknowledge, that unless otherwise agreed in a signed writing, the Deliverables (excluding any Customer Materials contained therein), will be deemed part of the Software and Platform Service, and nothing in this Agreement will be construed as transferring (or as requiring Monetize360 to transfer) to Customer any intellectual property rights in any Deliverables or other work product.
5.5. Third Party and Custom Integrations. Monetize360 may offer Customers the option, on mutually agreed terms, of sending data and information to, and receiving data and information from, Customer’s proprietary software or services, or software or services provided by third parties. Customer is solely responsible for establishing a contractual relationship with any third party providers of services or software (“Third Party Integration Providers”) and complying with the terms of such contractual relationship. For each Third Party Integration Provider or Customer proprietary service which Customer requests that the Platform Service interoperate, Customer will provide Monetize360 with the Customer Access Materials necessary for the Platform Service to do so. Monetize360 shall not be responsible or liable for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or any other harm to Customer or any other party caused by any Third Party Integration Providers or Customer’s proprietary services or software, including without limitation, by Monetize360’s integration with such Third Party Integration Providers or Customer’s proprietary services or software and the use of any data or information received therefrom.
6. DATA, CUSTOMER LICENSES AND OWNERSHIP
6.1. Customer Access Materials. Customer hereby grants to Monetize360 a limited, non-exclusive, worldwide, royalty-free license to use the Customer Access Materials solely in connection with the provision of the Platform Service to Customer.
6.2. Customer Data. During the Term of this Agreement, Customer hereby grants Monetize360 a royalty-free, perpetual, nonexclusive, worldwide license under all of Customer’s intellectual property rights in and to the Customer Data to adapt, modify, create derivative works of, publicly perform, display, reformat, translate, excerpt (in whole or in part), publish, transmit and distribute the Customer Data, in each case to enable Monetize360 to operate the Platform Service on Customer’s behalf. Customer hereby grants to Monetize360 a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use both (a) internal Platform Service analytic and log data regarding the processing of Customer Data and use of the Platform Service, and (b) Customer Data solely in a de-identified, aggregated form (in which neither an individual person nor Customer can feasibly be identified), to improve the Platform Service, including in connection with the improvement of user interface and experience, the creation and development of analytical and statistical analysis tools related to collected data, and for distribution in general benchmarking data and industry reports.
6.3. Personal Data. The processing of any Customer Data consisting of personally identifiable information, personal information, or personal data (collectively “personal information”), as such terms are defined under the California Consumer Privacy Act, EU General Data Protection Regulation 2016/679 and other applicable privacy laws (collectively, the “Privacy Requirements”), shall be governed under the terms and conditions set forth in the Monetize360 Data Processing Agreement (“DPA”). A current version of the DPA is available at https://www.monetize360.com/data-processing-addendum. Monetize360 shall provide prior notification to Customer in writing of any material change to the DPA while Monetize360 retains personal information made available by Customer. The DPA is an integral part of these Service Terms and the agreement between Customer and Monetize360. Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to any personal information, Customer shall be deemed the data controller/business and Monetize360 shall be deemed the data processor/service provider (as such terms are defined under the Privacy Requirements and the DPA).
6.4. Treatment of Customer Materials. Customer is ultimately responsible for making and keeping current copies of all Customer Materials and related information. Monetize360 will retain Customer Materials subject to any time or storage limitations set forth in the relevant Order Form for the Platform Service, and may delete or decline to store Customer Materials older than the prescribed age for deletion, or in excess of the disclosed storage limitation. Monetize360 will use reasonable industry standard security procedures to prevent unauthorized disclosure of or access to the Customer Materials, and will not disclose the Customer Materials to any third party except (a) as directed by Customer, (b) if such disclosure is made by Monetize360 in response to a court order, subpoena or other legal process, and provided that Monetize360 has given Customer reasonable notice of such court order, subpoena or other legal process, (c) if such disclosure is made to Monetize360’s service providers in order for such service providers to assist Monetize360 in the operation of the Monetize360 Service as provided to Customer, or (d) if such disclosure is in aggregated non-personally identifiable form.
6.5. Ownership; Feedback. Monetize360 agrees that as between Monetize360 and Customer, Customer will own the Customer Materials. As between Monetize360 and Customer, the Platform Service, Software and all software, data and technologies embodied in or used to provide the Platform Service, including data and information that is not Customer Data, and all intellectual property rights in or relating to any of the foregoing, is owned by Monetize360. Customer, Authorized Users, or End Users may choose to submit comments, suggestions, enhancement requests, or recommendations (collectively, “Feedback”) about the Platform Service or other Monetize360 offerings. Monetize360 shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate any Feedback into the Platform Service or other Monetize360 offerings.
7. TERM AND TERMINATION
7.1. Duration and Renewal. Customer’s right to use the Platform Service under the Agreement shall continue throughout the initial subscription term specified in the Order Form (unless terminated as set forth below). If no initial subscription term is specified in the Order Form, the initial subscription term will be one (1) year from the effective date of the Order Form. Except as otherwise specified in the Order Form, Customer’s subscription to the Platform Service will automatically renew for successive one (1) year terms (each, a “Renewal” and together with the initial term, the “Term”) until either party notifies the other of its intent not to renew thirty (30) days prior to the end of the then current or terminates the Agreement under Section 7.2 below.
7.2. Termination. A party may terminate these Service Terms for a material breach by the other party that remains uncured more than 7 days after receiving written notice of the breach. Customer’s right to use the Platform Service will automatically terminate upon any termination of the Agreement.
7.3. Effect of Termination. Upon expiration or termination of this Agreement, Customer’s, Authorized Users’, and End Users’ right to access and use the Platform Service shall immediately terminate, Customer, Authorized Users, and End Users shall immediately cease all use of the Platform Service, and each party shall return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Monetize360 will continue to make the Platform Service available for thirty (30) days after any termination solely to allow Customer to export Customer Data using the Admin tools in the Platform Service, and will provide assistance in such export on a reasonable as-available basis. Monetize360 may destroy or otherwise dispose of any Customer Data in its possession unless Monetize360 receives, no later than thirty (30) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer of a copy of the Customer Data in an industry standard format. Monetize360 will use all reasonable efforts to deliver such copy to Customer within thirty (30) days of its receipt of such a written request.
7.4. Survival. The following provisions will survive expiration or termination of the Agreement: Sections 1, 2, 3.5, 5.4, 6, 7.3, 7.4, 8 (to the extent of any outstanding payments), 9, and 11 through 14.
8. FEES AND PAYMENT
8.1. Fees. In consideration for Monetize360 providing the Platform Service and any agreed-upon Implementation Platform Service, Customer shall pay to Monetize360 the corresponding fees set forth in the Order Form or SOW, as applicable. Monetize360 may change the fees for the use of the Platform Service effective at any time after the initial subscription term set forth in the Order Form, and unless otherwise agreed by the parties, any such changes will take effect as of the start of the first Renewal after notice of such changes.
8.2. Invoices; Payment. Unless otherwise set forth in an Order Form or SOW, as applicable, Monetize360 shall invoice Customer: (a) in advance for Implementation Services fees, (b) annually in advance for any fixed annual fees, and (c) in arrears at the end of each calendar month for the variable fees and any other fees accrued during such calendar month. Each invoice is due and payable thirty (30) days following the invoice date. Overdue payments will accrue interest at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law.
8.3. Taxes. The fees specified in these Service Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than Monetize360’s U.S. federal and state income taxes. Such Taxes will be itemized in the applicable invoice.
9. CONFIDENTIALITY
9.1. Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the parties’ respective use and provision of the Platform Service that should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party except as set forth herein without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Service Terms. The receiving party will limit the distribution and communication of the disclosing party’s Confidential Information to its affiliates and the employees, subcontractors, or other agents of the receiving party or the receiving party’s affiliates (collectively, “Representatives”), who have a need to know such Confidential Information in order to exercise rights and fulfill obligations under this Agreement, and who have a legal obligation to keep it confidential. Each party shall be responsible for the actions or omissions of its Representatives in connection with the Confidential Information as if it had itself acted or failed to act. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
9.2. Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (c) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
9.3. Freedom to Compete; Reassignment. Nothing in this Agreement will be construed as a representation or inference that the other party will not develop products, or have products developed for it, that, without violation of this Section 9, compete with the products or services contemplated by the other’s Confidential Information. This Agreement shall not prevent a party from using information that is standard or generic, nor shall the mere exposure or access by a party or its personnel to the other party’s Confidential Information be construed to restrict the reassignment or deployment of its personnel in its sole discretion.
10. WARRANTIES
10.1. Mutual. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its state of its incorporation and has the power and authority to enter into this Agreement and to fully perform its obligations hereunder; and (b) this Agreement has been duly executed by its authorized representative and constitutes its valid, binding obligation.
10.2. By Monetize360.
(a) Monetize360 represents and warrants that the Platform Service will materially comply with their documentation, and that the availability and performance of the Platform Service will meet the requirements set forth in the Service Level Agreement. Customer’s sole and exclusive remedy for any breach of the warranty set forth in this 10.2(a) will be as set forth in the Service Level Agreement. Monetize360 will have no responsibility or obligations under the foregoing warranty or otherwise with respect to: (i) the use of the Platform Service other than in accordance with this Agreement or the Documentation, (ii) any modification of the Platform Service or Software by anyone other than Monetize360, or (iii) failure of the Platform Service through accident, abuse or misapplication.
(b) Monetize360 represents and warrants that: (i) it uses industry standard precautions to prevent the Software and Platform Service from containing or transmitting malicious code intended to corrupt software or systems on which it operates or to allow unauthorized access to the software or systems on which it operates; and (ii) to Monetize360’s knowledge, the Software and Platform Service do not infringe or misappropriate the intellectual property rights of any third party or violate any law, except that Monetize360 makes no representation or warranty with respect to infringements or violations arising out of the modification or configuration of the Software or Platform Service by any party other than Monetize360, or the combination of the Software or Platform Service with any materials or technology provided by Customer or any third party.
10.3. By Customer. Customer represents and warrants that: (a) it uses industry standard precautions to prevent the Customer Materials from containing or transmitting malicious code intended to corrupt software or systems on which it operates or to allow unauthorized access to the software or systems on which it operates; and (b) to Customer’s knowledge, Monetize360’s use, as contemplated hereunder, of any Customer Materials, will not constitute an infringement or violation of the intellectual property rights of any third party, any law, or any contract by which Customer is bound, except that Customer makes no representation or warranty with respect to infringements or violations arising out of the modification of the Customer Materials by Monetize360.
10.4. EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE SERVICE TERMS (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SERVICE LEVEL AGREEMENT, IF APPLICABLE), THE PLATFORM SERVICE AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES NOT SET FORTH HEREIN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.5. ANY USE OF LAB SERVICES IS AT CUSTOMER’S OWN RISK. ANYTHING ELSE IN THE AGREEMENT NOTWITHSTANDING, MONETIZE360 EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE LAB SERVICES, AND WILL HAVE NO LIABILITY FOR ANY CLAIM, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE LAB SERVICES.
11. INDEMNIFICATION
11.1. By Monetize360. Monetize360 will indemnify, defend and hold harmless Customer against any damages awarded by a court in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer to the extent based upon an allegation that: (a) the Platform Service, as furnished by Monetize360 hereunder and used by Customer within the scope of the Agreement, misappropriates any trade secret, or infringes any copyright or any U.S. patent or trademark rights of such third party; or (b) Monetize360 has violated a law or regulation applicable to Monetize360’s business. THE FOREGOING STATES THE ENTIRE OBLIGATION OF MONETIZE360 WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM SERVICE. Monetize360 shall have no liability under this Section 11.1 to the extent that any Claims are based on: (x) any combination of the Platform Service with products, services, methods, content or other elements not furnished by Monetize360 unless such specific combination is necessary for the intended use of the Platform Service, (y) any modification of the Platform Service by any party other than Monetize360; or (z) any use of the Platform Service in a manner that violates the Agreement, the Documentation or the written instructions given to Customer by Monetize360.
11.2. Mitigation Measures. In the event of any Claim or potential Claim covered by Section 11.1, Monetize360 may, in its discretion, seek to mitigate the impact of such Claim by modifying the Platform Service to make it non- infringing, and/or by suspending or terminating Customer’s use of the Platform Service upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Monetize360 will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
11.3. Indemnification by Customer. Customer will indemnify, defend and hold harmless Monetize360 against any Claims arising from or related to: (a) any Customer Materials (including any allegation that Customer failed to secure the right for Monetize360 to use the Customer Access Materials as contemplated herein), (b) by Authorized Users or End Users except to the extent subject to indemnification by Monetize360 under Section 11.1, or (c) the use of the Platform Service by Customer, Authorized Users, or End Users in violation of the Agreement, applicable laws, rules or regulations, or any applicable Monetize360 Documentation or posted policies.
11.4. Procedures. Each party’s indemnity obligations are subject to the following: (a) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (b) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (c) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.
12. LIMITATION OF LIABILITY
12.1. Waiver of Certain Damages. EXCEPT FOR DAMAGES PAYABLE TO THIRD PARTIES UNDER THE INDEMNIFICATION OBLIGATIONS OF SECTION 11 OR DAMAGES RESULTING FROM BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE THE PLATFORM SERVICE TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. Liability Cap. EXCEPT FOR AMOUNTS OWED UNDER SECTION 8, THE INDEMNIFICATION OBLIGATIONS OF SECTION 11, OR DAMAGES RESULTING FROM BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 9, THE TOTAL LIABILITY OF EACH PARTY FOR DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO MONETIZE360 UNDER THE RELEVANT ORDER FORM IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
13. MARKS; PUBLICITY
13.1. Identification of Customer. Monetize360 may identify Customer, by name and logo, as a customer of the Platform Service, all on Monetize360’s website and in Monetize360’s other marketing materials.
13.2. Case Study. Provided Customer is satisfied with the Platform Service, Monetize360 may develop a case study for public dissemination and marketing use by Monetize360 describing the benefits Customer has derived from the Platform Service. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer’s prior written approval, not to be unreasonably withheld.
14. MISCELLANEOUS
14.1. Assignment. Neither party may assign the Agreement without the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer these Service Terms together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (a) to any entity controlling, controlled by, or under common control with, the transferring party, where “control” means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (b) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets. Any attempt to assign the Agreement except as permitted under this Section, will be null and of no effect. Subject to the foregoing, these Service Terms will bind and inure to the benefit of each party’s successors and permitted assigns.
14.2. Government End Users. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
14.3. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non- payment of amounts owing) due to causes beyond its reasonable control.
14.4. Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Platform Service, nor any direct product thereof, are: (a) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (b) used for any purposes prohibited by such export laws and regulations.
14.5. Severability. If any part of the Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
14.6. Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
14.7. Notices. All notices permitted or required under the Agreement shall be in writing, will reference the Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
14.8. Governing Law. The Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
14.9. Amendments. Any amendment or modification to this Agreement must be in writing signed by both parties. Terms and conditions set forth in any purchase order or other document provided by Customer to Monetize360 that differ from, conflict with, or are not included in this Agreement shall not apply unless specifically accepted by in writing by an officer of Monetize360.
14.10. Entire Agreement; Priority. These Service Terms together with the Order Forms, applicable Service Exhibits, and any documents expressly referenced herein constitute the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. In the event of any conflict between the provisions of these Service Terms concerning access to Lab Services and the provisions of the remainder of these Service Terms, the terms concerning access to Lab Services shall prevail.
Service Exhibit SE-1
Customer Branding Terms
1. Definitions. Any capitalized terms not defined in this Exhibit shall have the meaning set forth in the Agreement.
“Customer Branding” means the logos, graphics, color scheme, and other Customer branding elements to be provided to Monetize360 by Customer for the creation of the Customer-branded interface(s) to the Service. Customer Materials include the Customer Branding (however, Customer Data does not include Customer Branding).
2. Customer Branding. For each Service Module with respect to which the parties have agreed to implement a Customer-branded interface:
a. Customer will supply Monetize360 with electronic versions of the Customer Branding in an industry standard format for Monetize360’s use in the implementation of a Customer-branded user interface for the relevant Service Module. The Customer Branding shall be applied to the Service Module templates provided by Monetize360, and the user interface to the Service Module will be provided using Customer Branding, with a “Powered by Monetize360” attribution and appropriate rights notices. To the extent that Monetize360 provides tools for such implementation as part of the Platform Service, Customer will be solely responsible for the implementation of the Customer-branded user interface.
b. Customer hereby grants to Monetize360 a limited, non-exclusive, worldwide, royalty-free license to use the Customer Branding solely as permitted herein. All use by Monetize360 of the Customer Branding shall inure solely to the benefit of Customer, and shall be subject to the usage guidelines and reasonable written instructions provided by Customer. Monetize360 acquires no right, title or interest under this Agreement in or to Customer Branding, including any intellectual property rights therein.
Service Exhibit SE-2
Service Modules
This Service Exhibit supplements and is integrated into the Agreement between Monetize360 and Customer (consisting of an Order Form and Platform Service Terms) to which it is attached. Capitalized terms not defined herein are defined in the Agreement.
