moneta™ Terms of Use
These moneta™ Terms of Use (these “Terms”) are a binding agreement (the “Agreement”) by and between Moneta Technology, Inc., a Delaware corporation (“moneta”) and the Customer who has purchased Services (as defined herein) through an authorized moneta Reseller (“Customer”). By accessing or using the Service, Customer accepts and agrees to be bound by these Terms. If Customer does not accept these Terms, Customer is not permitted to access or use the Service. This Agreement is effective as of the date Customer accepts these Terms (the “Effective Date”). Customer and moneta may be referred to herein collectively as the “Parties” or individually as a “Party.”
1. Definitions.
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by moneta in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased.
(c) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(d) “Documentation” means moneta’s user manuals, handbooks, and guides relating to the Services provided by moneta to Customer either electronically or in hard copy form/end user documentation relating to the Services available at www.monetacloud.com.
(e) “moneta IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, moneta IP includes Aggregated Statistics and any information, data, or other content derived from moneta’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
(f) “Services” means the moneta Platform SaaS offering.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, moneta hereby grants Customer a non exclusive, non-transferable (except in compliance with Section 10(g)) right to access and use the moneta Platform during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. moneta shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the moneta Platform.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, moneta hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 10(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. moneta reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the moneta IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, moneta may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) moneta reasonably determines that (A) there is a threat or attack on any of the moneta IP; (B) Customer’s or any Authorized User’s use of the moneta IP disrupts or poses a security risk to the moneta IP or to any other customer or vendor of moneta; (C) Customer, or any Authorized User, is using the moneta IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) moneta’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of moneta has suspended or terminated moneta’s access to or use of any third-party services or products required to enable Customer to access the Services (any such suspension described in subclause (i) or (a “Service Suspension”). moneta shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. moneta shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. moneta will have no liability for any damage, liabilities, losses 2 (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, moneta may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between moneta and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by moneta. Customer acknowledges that moneta may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that moneta may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
4. Confidential Information. From time to time during the Term, moneta may disclose or make available to Customer information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party. Customer shall not disclose moneta’s Confidential Information to any person or entity, except to Customer’s employees or contractors who have a need to know the Confidential Information for Customer to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Customer shall first have given written notice to moneta and made a reasonable effort to obtain a protective order. Upon request and expiration or termination of the Agreement, Customer shall promptly return to moneta all copies, whether in written, electronic, or other form or media, of Customer’s Confidential Information, or destroy all such copies and certify in writing to moneta that such Confidential Information has been destroyed. Customer’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will survive the termination or expiration of this Agreement.
5. Intellectual Property Ownership; Feedback.
(a) moneta IP. Customer acknowledges that, as between Customer and moneta, moneta owns all right, title, and interest, including all intellectual property rights, in and to the moneta IP.
(b) Customer Data. moneta acknowledges that, as between moneta and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to moneta a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for moneta to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to moneta by mail, email, telephone, or otherwise, suggesting or recommending changes to the moneta IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), moneta is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to moneta on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and moneta is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although moneta is not required to use any Feedback.
6. Warranty Disclaimer. THE MONETA IP IS PROVIDED “AS IS” AND MONETA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MONETA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MONETA MAKES NO WARRANTY OF ANY KIND THAT THE MONETA IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
7. Indemnification. Customer shall indemnify, hold harmless, and, at moneta’s option, defend moneta from and against any losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by 4 moneta or authorized by moneta in writing; or (iv) modifications to the Services not made by moneta, provided that Customer may not settle any Third-Party Claim against moneta unless moneta consents to such settlement, and further provided that moneta will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
8. Limitations of Liability. IN NO EVENT WILL MONETA BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER MONETA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL MONETA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO MONETA UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Term and Termination.
(a) Term. The term of this Agreement begins on the Effective Date and will continue in effect until the earlier of (a) the expiration date set forth in a written agreement between Customer and an authorized moneta Reseller, or (b) this Agreement is terminated pursuant to Section 9(b) below.
(b) Termination.
(i) Customer may terminate this Agreement upon written notice to moneta
(ii) moneta may terminate this Agreement, effective on written notice to Customer, if Customer: (A) Customer materially breaches this Agreement; or (B) the agreement between Customer and an authorized moneta reseller expires or is terminated for any reason.
(iii) moneta may also terminate this Agreement, effective immediately upon written notice to Customer, if Customer: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general 5 assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the moneta IP and, without limiting Customer’s obligations under Section 4, Customer shall delete, destroy, or return all copies of the moneta IP and certify in writing to the moneta that the moneta IP has been deleted or destroyed.
(d) Survival. This Section 9(c) and Sections 1, 4, 5, 6, 7, 8, and 10 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
10. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. Notice to Customer may be delivered to any address or email address provided to moneta by Customer or the applicable moneta Reseller. Notice to moneta shall be delivered to the following:
Moneta Technology, Inc.
attention: Legal Department
350 East 400 South, Suite 316
Salt Lake City, UT 84111
email: info@monetacloud.com
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by laws of the State of Delaware without giving effect to any choice of law principles. Any action that is or may be commenced by any Party pertaining to this Agreement or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be commenced in the federal court located Salt Lake County, Utah.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of moneta. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” 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. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
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