This Master Services Agreement (together with the Order Form(s) and other attachments, this “Agreement”) is between Monument Software, Inc., a Delaware corporation (“Monument”) and Customer, as defined in the Order Form. The parties agree as follows:
“ACH” stands for Automated Clearing House, a network that allows electronic payments.
“All Customer Facilities” means all Facilities owned or operated by Customer.
“Annual Adjustment Percentage” means the greater of (i) 4.00% and (ii) the percentage change in the Consumer Price Index during the 12-month period ending November 30 of the immediately preceding calendar year.
“Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, Implementation Services, or either party’s performance under this Agreement.
“Branded Website” means a Rental Website branded with Customer Marks and powered and hosted by Monument.
“Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Monument’s Confidential Information includes non-public information regarding features, functionality, and performance of the Platform, Implementation Services, Documentation, and Usage Data. Customer’s Confidential Information includes the Customer Data.
“Customer Data” means all non-public data uploaded by or on behalf of Customer to the Platform, Branded Website, or Hybrid Website, created by Customer or a user authorized by Customer to use the Platform, Branded Website, or Hybrid Website, or made available to Monument by Customer in the course of the Services. “Customer Data” does not include Usage Data.
“Customer Marks” means Customer’s name, logo, trademarks, service marks, trade dress, and other indicia of origin.
“Documentation” means Monument-provided user documentation relating to the Platform (e.g., user manuals and online help files).
“Implementation Services” means any implementation, custom configuration, training, or consulting services relating to the Services as specified in an Order Form.
“Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.
“Facility” (plural “Facilities”) means a Customer’s distinct self-storage facility at a single geographic location which contains individual Units for which the Services relate.
“Facility Scope” means the scope of Facilities defined in the Order Form.
“Go Live” means the date on which a specified Facility is expected to start using the Platform to conduct and manage its business.
“Hybrid Website” means a Customer-hosted website that is embedded with Monument code.
“Licensing Fee” means the monthly cost to Customer to license Platform and obtain Services.
“Live Facilities” means all the Facilities that are utilizing Platform to conduct and manage its business.
“Order Form” means an ordering document or online order specifying the Services to be provided under this Agreement that is entered into between Customer and Monument, including any addenda and supplements thereto.
“Order Form Effective Date” means the date an Order Form goes into effect.
“Payment Start Date” means the Order Form Effective Date unless the Order Form specifies a different Payment Start Date.
“Partner Provider” means a fully independent company that provides Third-Party Services, as defined in Section 7 (Third-Party Services).
“Payment Processing Service” or “Monument Payments” means the portion of the Platform through which Customer can accept and process payments from Tenants. Payment Processing Services on Monument are a Third-Party Service (as defined below) and is fulfilled by our Partner Provider, Payrix, and is subject to Payrix’s Platform Agreements and Disclosures (the “Payrix Terms”). By agreeing to these terms and/or continuing to use the Services, you agree to be bound by the Payrix Terms, and the same may be modified by Payrix from time to time. As a condition of Monument enabling payment processing services through Payrix, you agree to provide Monument accurate and complete information about you and your business, and you authorize Monument to share such information and transaction information related to your use of the payment processing services provided by Payrix.
“Platform” means Monument’s software-as-a-service application, which provides a facility management software with CRM, lead tracking, tenant billing, facility reporting, and various other functions.
“Rental Website” means Customer’s consumer-facing website into which the Platform is integrated.
“Services” means Monument’s provision of the Platform and, if applicable, the Hybrid Website and/or Branded Website, including any related software and services, in each case, as may be described in the applicable Order Forms.
“Tenant” means a client of Customer who rents a Unit.
“Tenant Prospect” means a potential client of Customer who may have an interest in renting a Unit.
“Unit” means each individual self-storage space intended for lease that is defined in Platform, whether physical or virtual.
“Unit Price” means the monthly price per Unit for Customer to license Platform and obtain Services.
“Usage Data” means data relating to use of the Platform, the Hybrid Website, the Branded Website, or Implementation Services, or any End User’s use of any of the foregoing, that is aggregated and/or deidentified.
“Verified Payment Mandate” is a Third-Party Service (as defined below) and is implemented by our Partner Provider, GoCardless, or a similar Partner Provider. It provides a pre-authorization service, allowing Monument during the Term of this agreement to collect payments directly from Customer’s bank account via ACH.
Order Forms. Each Order Form is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order Form, this Agreement will control unless the Order Form states that a specific provision of this Agreement will be superseded by a specific provision of the Order Form.
Access to the Platform. Subject to Customer’s compliance with this Agreement, Monument grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the term of the applicable Order Form to use the Platform, solely in connection with Customer’s internal business operations. Monument may modify or update the Platform from time to time to keep the Platform current and relevant for its customer base generally.
Operation of a Hybrid Website. To the extent specified in the applicable Order Form, and subject to Customer’s compliance with this Agreement, Monument grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Term to use the Hybrid Website, solely in connection with Customer’s internal business operations.
Branded Websites. Subject to Customer’s compliance with this Agreement, Monument will use reasonable efforts to customize and establish a Branded Website and enable Customer to make the Branded Website available (on a hosted, as-a-service, basis) for access and use by end users seeking to search for and rent Units through the Branded Website (together with any other end user of the Branded Website or of a Hybrid Website, “End Users”). The primary name of the Branded Website shall be a domain name provided and registered by Customer.
Hybrid Website. In lieu of the Branded Website and subject to Customer’s compliance with this Agreement, Monument may provide Customer with software to insert into its own website to facilitate access and use by end users seeking to search for and rent Units through Customer’s site.
Subcontractors. Monument may use subcontractors or other third parties (including for the processing of information) to perform its obligations under this Agreement, but Monument will remain responsible for all such obligations, except that Monument will not be liable for providers of Third-Party Services, which are governed by independent terms between Customer and the Third-Party Service provider.
Support Services. Subject to Customer’s payment of all Service Fees (as defined below) and compliance with this Agreement, Monument will use commercially reasonable efforts to provide technical support to Customer during normal business hours, with the exclusion of U.S. federal holidays, or as otherwise described in the applicable Order Form and Documentation (the “Support Services”).
Implementation Services. To the extent specified in the applicable Order Form, Monument will use reasonable efforts to provide the Implementation Services to Customer. Customer will: (1) cooperate with and assist Monument in the performance of Implementation Services; and (2) provide any resources specified in the Order Form or otherwise reasonably requested by Monument to facilitate the Implementation Services.
Mutual Trademark License. Each party (“Licensor”) grants to the other (“Licensee”) the right to use Licensor’s trademarks, logos, and trade names (“Marks”) solely during the Term and in connection with the performance of Licensee’s obligations or exercise of Licensee’s rights under this Agreement. Licensee will comply with any trademark usage policies provided by Licensor. All goodwill arising out of Licensee’s use of Licensor’s Marks will vest in Licensor.
Attribution Requirements. All Hybrid Websites and Branded Websites will include the phrase “powered by Monument” (or other attribution notice reasonably required by Monument) in the placement, size, and format reasonably required by Monument.
Payment Processing. Monument Payments is a feature of our Services and fulfilled by our Partner Provider, Payrix.
Service Fees. Starting on the Payment Start Date, Customer will pay Monument all fees described in all Order Forms (the “Service Fees”) in accordance with the terms therein. The Service Fee includes the monthly fee for use of the Platform, Branded Website, and Hybrid Website (“Licensing Fee”) and all fees for the Payment Processing Service (“Payment Processing Fees”).
Licensing Fee. The Licensing Fee amount will be calculated by multiplying the Unit Price by the total number of Units on the Facility Scope.
Unit Price Annual Adjustments. Monument will increase the Unit Price on January 1st of each calendar year during the Term by the Annual Adjustment Percentage.
Gate Provider Charges. In the event Customer utilizes a gate provider at a facility that incurs a cost to Monument, Customer will reimburse Monument for that fee.
Future Features. If Customer elects to enable new features/functionality not currently provided, it may result in an increase of the Unit Price.
Taxes. Customer shall be responsible for all sales tax, use tax, value added taxes, withholding taxes and any other similar taxes and charges of any kind imposed by federal, state or local governmental entities on the transactions contemplated by the Agreement. When Monument has the legal obligation to pay or collect taxes for which you are responsible, pursuant to this Section 3, the appropriate amount shall be added to your invoice and thereafter paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority before invoice is sent.
Invoices. Before the last business day of each calendar month, Monument will email Customer an invoice for the month ahead.
Invoice Payments. On the first business day of each calendar month, Monument will attempt to collect payment via ACH pull from the Customer’s account (through the Verified Payment Mandate), the amount previously invoiced. A failure to collect full payment on the first business day of the calendar month for the amount on the monthly invoice is deemed a “Late Payment”. Customer agrees that all payments from Customer to Monument will occur via ACH.
Late Payments. Customer acknowledge that its failure to pay any fees or charges when due may result in immediate suspension or termination of the Services. If Monument is unable to collect any of the fees or charges due hereunder, Monument reserves the right to engage a collections agency to collect the fees and charges and Customer acknowledge and agree that it shall pay all costs incurred by Monument in connection with the collection of such past due amounts, including, without limitation, reasonable attorneys’ and collections agencies’ fees plus interest in an amount equal to the lesser of 1.50% per month or the maximum rate permitted by applicable law.
Invoice Disputes. If Customer believes Monument has billed Customer incorrectly, Customer must provide notice of dispute to Monument no later than 30 days after the invoice date on the first billing statement in which the error or problem appeared. All Service Fees are non-refundable, except as otherwise specified in this Agreement.
Payment Processing Fees. By entering into this Agreement, Customer authorizes Monument to deduct fees owed to Monument from Customer’s revenue disbursements for all applicable Payment Processing Fees and charges, as detailed in the Order Form. All payments are processed in United States Dollars and Customer is responsible for any transaction fees. For more information on how Payrix handles your data, please refer to the Payrix Terms.
Verified Payment Mandate. During the term of this agreement, Customer agrees to maintain a Verified Payment Mandate, at no cost to Customer, for the purpose of Monument collecting via pull ACH monthly invoice amounts from Customer.
Use Restrictions. Except as expressly permitted in this Agreement, Customer will not, and will not permit or authorize third parties to: (1) license, sub-license, sell, transfer, distribute, share, rent, lease, or otherwise permit third parties to use the Platform; (2) circumvent or disable any security or other technological features of the Platform; (3) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Platform (except to the extent this restriction is prohibited by Applicable Law); (4) modify, translate, or create derivative works based on the Platform; (5) remove any of Monument’s proprietary notices or labels from the Rental Website or Platform (such as “powered by Monument”); (6) use or host the Branded Website or Hybrid Website or use the Platform in a manner that violates or attempts to circumvent Applicable Law; (7) use the Rental Website or Platform to transmit any content that is offensive, harassing, libelous, abusive, threatening, harmful, or otherwise objectionable; (8) use the Rental Website or Platform to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Platform; (9) engage in unfair, deceptive, or abusive acts or practices or (10) access the Platform or use the Services to develop a competing product or service.
Accounts. Customer is responsible and liable for all actions and inactions by End Users or by any third party that Customer permits to access or use the Platform, as if such action or inaction were an action or inaction of Customer. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer’s account and its users’ accounts.
Additional Responsibilities. Customer will: (1) procure, implement, and maintain any network connections, hardware, infrastructure, and third-party software licenses that are necessary for Customer to securely access the Platform and (if applicable) operate the Rental Website; (2) configure Customer Data and the Rental Website in compliance with all Applicable Law; (3) take all reasonable precautions to prevent unauthorized access to the Platform and Rental Website, or disclosure of any data derived in connection with the Services or Monument’s Confidential Information; and (4) promptly notify Monument of any unauthorized access to the Platform or Rental Website or use or disclosure of any data derived in connection with the Services, or Monument’s Confidential Information. Monument is not responsible for performing, and is not liable for any failure to perform, any backup of Customer Data.
Customer’s Obligations and Relationship to Branded and Hybrid Website End Users. As between the Parties, Customer is the sole service provider to Tenant Prospects and Tenants. All access and use of the Branded Website or Hybrid Website by any Tenant Prospects or Tenant will be governed solely by contractual terms entered into between Customer and such current or prospective Tenant, including terms of use and a privacy policy (collectively, “Terms of Service”), and no current or prospective Tenant will be required or permitted to enter into, or otherwise agree to, an agreement or any binding terms with Monument in connection with such current or prospective Tenant’s access to or use of the Rental Website, except as may be required by law, including with respect to possession or processing of personal data; provided, Customer will provide all assistance reasonably necessary for Monument to enforce the Terms of Service as a third-party beneficiary thereof. In providing access to and use of the Branded Website or Hybrid Website, Customer will obtain all rights, consents, authorizations, permissions, and other approvals from, and provide all necessary notices to, current and prospective Tenant with respect to their data as necessary to enable Monument and its vendors to collect, use, retain, disclose and otherwise process such current or prospective Tenant’s data (including personally identifiable information) on Customer’s behalf in connection with such current or prospective Tenant’s use of the Rental Website.
Customer’s Obligations to Tenants. As between the parties, Customer is solely responsible for administering Tenant leases, including the termination of such leases upon any Tenant’s failure to pay amounts due and payable in accordance with the terms of the lease. Without limiting the foregoing, Customer is solely responsible for adhering to all applicable consumer protection laws, rules and regulations, including laws regarding the imposition of liens and encumbrances, the Fair Credit Reporting Act, the Gramm Leach Bliley Act, and all state law equivalents. Any election to terminate a Tenant’s access to a Unit is made solely by Customer.
Terms and Privacy Policies. Monument, acting on behalf of Customer, will post Terms of Service to the Rental Website. The template Terms of Service set forth at www.monument.io/terms-of-service and www.monument.io/privacy-policy (as the same may be modified from time to time in Monument’s sole discretion) will automatically be posted by Monument unless Customer provides Monument with an alternative template or informs Monument of any changes to such template. Customer understands and acknowledges that, as between the parties, Customer is solely responsible for ensuring the Terms of Service provide the disclosures required by applicable law with respect to providing services to consumers and are otherwise legally binding and enforceable in the jurisdiction(s) Customer operates in. Monument provides the template Terms of Service as a convenience to Customer, and by providing such Terms of Service is not engaging in the practice of law or providing legal advice to Customer.
Customer Data. Customer or its licensors owns the Customer Data and Customer Marks, including all Intellectual Property Rights therein. No ownership rights in the Customer Data or Customer Marks are transferred to Monument by this Agreement. Monument does not have any rights to the Customer Data or Customer Marks except for the limited express rights granted in this Agreement. Customer hereby grants Monument a worldwide, non-exclusive, irrevocable, royalty-free, fully-paid, sublicensable (to Monument’s third-party service providers) license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Customer Data and Customer Marks (including to the owner of the Units), in any media or distribution methods now known or later developed, solely during the Term and as necessary for Monument to provide the Services and Implementation Services to Customer and/or the owner of the Units, to maintain and improve the Services, and perform Monument’s related business functions..
Monument IP. Monument and its licensors own the Platform, any elements of the Rental Website provided by Monument, Implementation Services, Documentation, and Usage Data, including all Intellectual Property Rights therein (the “Monument IP”). The Monument IP is protected by copyright law and other Applicable Law. No ownership rights in the Monument IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the Monument IP except for the limited express rights granted in this Agreement.
Implementation-Related IP. If in the course of providing Implementation Services Monument develops any technology, Monument will own such technology and all Intellectual Property Rights therein (“Implementation-Related IP”) unless the parties explicitly agree otherwise in the applicable Order Form. Monument hereby grants Customer a non-exclusive, irrevocable, royalty-free, fully paid, non-sublicensable license to use any Implementation-Related IP, solely during the Term and as necessary for Customer to use the Platform and Implementation Services in accordance with this Agreement.
Feedback. If Customer gives Monument feedback, comments, or suggestions concerning the Services or Implementation Services (collectively, “Feedback”), Customer hereby assigns to Monument all right, title, and interest in and to the Feedback, and Monument is free to use the Feedback without payment, attribution, or restriction. If Customer receives feedback, comments, or suggestions concerning the Branded Website, Hybrid Website, or Platform from an End User (collectively, “User Feedback”), Customer hereby assigns to Monument all right, title, and interest in and to the User Feedback.
Usage Data. Monument may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Branded Website, Hybrid Website, Platform, Implementation Services, and related systems and technologies (including information provided by third-party analytical tools). Monument may use Usage Data for any purpose, including to improve the Services or Implementation Services, to develop marketing materials and statistical analyses, and to develop new products, services, features, and functionality.
Non-Disclosure and Non-Use. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information, and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who (1) have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement and (2) are subject to confidentiality obligations consistent with those in this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 6, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, or for so long as such Confidential Information constitutes a trade secret under Applicable Law)
Compelled Disclosure. This Agreement does not prohibit disclosure of Confidential Information if such disclosure is required by law or the valid order of a court or other governmental authority. Before making any such disclosure of Discloser’s Confidential Information, Recipient will, unless legally prohibited from doing so: (1) give Discloser prompt written notice of such requirement so Discloser may seek a protective order or other remedy; (2) reasonably cooperate with Discloser to oppose the disclosure and/or obtain a protective order or other remedy; and (3) not disclose any of Discloser’s Confidential Information beyond what is legally required.
Third-Party Services. Monument and third parties may make available third-party products or services, including plugins, mobile applications, integrations, and related services (“Third-Party Services”) that may be available through the Services or that Customer may elect to purchase or use. Any use by Customer of such Third-Party Services and any exchange of data between Customer and any Third-Party Service or Third-Party Service provider is solely between Customer and the applicable Third-Party Service provider. Monument does not warrant or provide support for Third-Party Services, whether or not they are designated by Monument as “recommended,” “certified,” or otherwise. As between the parties, Customer is solely responsible for the Third-Party Services, and Monument is not responsible for such Third-Party Services or the acts or omissions of any Third-Party Services provider. Without limiting the foregoing, Monument makes no representations, warranties or guarantees regarding any data that may be ingested from Third-Party Services or otherwise accessed by Customer from Third-Party Services, including with respect to the accuracy thereof. Customer is solely responsible for all decisions, actions and omissions taken with respect to any data accessed from Third-Party Services. In addition, Monument cannot and does not guarantee the interoperability of the Services with any Third-Party Services as such interoperability may be impacted by changes in the technical specifications or functionality of such Third-Party Services. Monument is not responsible for any violations of Applicable Law relating to Third-Party Services or arising from Customer’s use of Third-Party Services.
Interoperation with the Services. If Customer uses any Third-Party Services with the Services, Customer grants Monument permission to allow the Third-Party Service and its provider to access Customer Data as required for the interoperation of that Third-Party Service with the Services. Monument is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Third-Party Service or its provider. Customer is responsible for negotiating any limits on the use of Customer Data by the Third-Party Services directly with the Third-Party Service provider.
No Guarantee. Monument does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Services features), and if such Third-Party Services or related features are discontinued, Customer will not be entitled to any refund, credit, or other compensation.
Term. The term of this Agreement will commence on the Order Form Effective Date of the first Order Form and will continue until terminated in accordance with this Agreement (the “Term”). If a term is not specified in an Order Form, the term of such Order Form will be 12 months. Upon expiration of an Order Form, the Order Form will automatically renew for a term equivalent to the initial term of such Order Form, unless otherwise specified in the Order Form or if either party notifies the other in writing of its desire to terminate the applicable Order Form at least 90 days before the expiration of the Order Form.
Termination for Breach or Insolvency. Either party may terminate this Agreement or any Order Form, effective upon written notice to the other party, if the other party materially breaches this Agreement and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Effect of Termination. Termination of this Agreement will automatically terminate all active Order Forms. Upon the termination of this Agreement, all rights and licenses granted by Monument to Customer under this Agreement or the applicable Order Form will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
Post-Termination Obligations. Upon any termination of this Agreement, each party will delete any of the other party’s Confidential Information then held by such party, except that any copies of Confidential Information created pursuant to automatic back-up procedures will be deleted in accordance with the Recipient’s data retention practices. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 3 (Service Fees), 5 (Intellectual Property and Data Use), 6 (Confidentiality), 8.C (Effect of Termination), 8.D (Post-Termination Obligations), 9.E (Disclaimer), 10 (Indemnification), 11 (Limitations of Liability), 13 (Arbitration), 15 (Compliance with Applicable Law), and 16 (Miscellaneous).
Handling of Your Data in the Event of Termination. Customer acknowledges and agrees that following termination of Services, Monument may immediately deactivate all affected and related Services and that Monument shall have no obligation to continue to store Customer data during termination or to permit you to retrieve such data. Customer further agrees that Monument shall not be liable to Customer or to any third party for any termination of Customer’s access to the Services or deletion of Customer’s data pursuant to this Agreement. Following the termination of Customer’s right to use the Services for any reason other than termination for cause by Monument, Customer shall be entitled to take advantage of any post-termination assistance Monument may generally make available with respect to the Services, such as data retrieval arrangements Monument may elect to make available. Monument may also endeavor to provide Customer with unique post-suspension or post-termination assistance, but Monument shall be under no obligation to do so.
Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution and delivery of this Agreement by the executing party do not violate Applicable Law or the terms of any other agreement to which it is a party or by which it is otherwise bound.
Monument Warranties. Monument represents and warrants to Customer that Monument will perform the Services and Implementation Services in a good and workmanlike manner.
Customer Warranties. Customer represents and warrants to Monument that: (1) Customer has the necessary rights to authorize Monument to use the Customer Data in accordance with this Agreement, and such use by Monument of Customer Data does not and will not infringe any third-party right, including any Intellectual Property Right or privacy right; (2) Customer’s operation of the Rental Website and provision of the Customer Data to Monument does not and will not breach any agreement to which Customer is a party; and (3) Customer will use the Rental Website, Platform, and Implementation Services in compliance with the Documentation and Applicable Law.
Disclaimer. Except for the limited warranties described in this Section 9 (Warranties and Disclaimer), Monument makes no other express or implied warranties with respect to the Services, Rental Website, Platform, Implementation Services, or otherwise, and specifically disclaims all implied and statutory warranties, including the implied warranties of non-infringement of third-party rights, merchantability, satisfactory quality, accuracy, title, and fitness for a particular purpose, and any warranties arising from course of dealing, usage, or trade practice. Except for the limited warranties described in this Section 9, the Services, Rental Website, Platform, and Implementation Services are provided “as is.” Monument does not warrant that the Services, Rental Website, Platform, or Implementation Services will satisfy Customer’s requirements, are without defect or error, or that the operation of the Rental Website or Platform will be uninterrupted. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to Customer.
By Monument.
Defense. At Customer’s option and request, Monument will defend Customer from any actual or threatened third-party claim, proceeding, suit, action, or inquiry arising out of or based on an allegation that Customer’s use of the Platform or any elements of the Rental Website provided by Monument in accordance with this Agreement infringes any third-party Intellectual Property Rights (a “Monument Indemnifiable Claim”). If Customer requests Monument to defend it from any Monument Indemnifiable Claim, Customer will: (a) give Monument prompt written notice of the Monument Indemnifiable Claim; (b) grant Monument full and complete control over the defense and settlement of the Monument Indemnifiable Claim; (c) provide assistance in connection with the defense and settlement of the Monument Indemnifiable Claim as Monument may reasonably request; and (d) comply with any settlement or court order made in connection with the Monument Indemnifiable Claim. Notwithstanding the previous sentence, Monument will not enter into any settlement that involves an admission of guilt or liability of Customer without Customer’s prior written consent. Customer may participate in the defense of a Monument Indemnifiable Claim at its own expense and with counsel of its own choosing.
Combinations. Monument will have no obligation for any infringement of Intellectual Property Rights relating to Customer’s use of the Platform, or the Rental Website to the extent arising out of: (1) use of the Platform or Rental Website in combination with other products or services not recommended or provided by Monument; (2) designs, requirements, or specifications required by or provided by Customer; (3) use of the Platform or Rental Website in breach of this Agreement or outside the scope of the license granted to Customer; (4) Customer’s failure to use the Platform or Rental Website in accordance with the Documentation; (5) any modification of the Platform or Rental Website not made or authorized in writing by Monument; or (6) Third-Party Services.
Indemnification. Monument will indemnify Customer from and pay: (a) all damages, costs, fines, judgments, expenses, liabilities, and attorneys’ fees reasonably incurred by Customer in any Monument Indemnifiable Claim; and (b) all amounts that Monument agrees to pay to any third party to settle any Monument Indemnifiable Claim. Monument’s obligation to defend and indemnify Customer pursuant to this Section constitutes Customer’s sole and exclusive remedy for any third-party claim alleging that the Services infringe or otherwise violate any third-party’s intellectual property rights.
By Customer.
Defense. At Monument’s option and request, Customer will defend Monument and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “Monument Indemnified Parties”) from any actual or threatened third-party claim, proceeding, suit, action, or inquiry (a) made by any End User or (b) arising out of or based on Customer’s breach of Sections 4 (Restrictions and Responsibilities), 6 (Confidentiality) or 9 (Warranties and Disclaimer) (a “Customer Indemnifiable Claim”). If Monument requests Customer to defend it from any Customer Indemnifiable Claim, Monument will: (1) give Customer prompt written notice of the Customer Indemnifiable Claim; (2) grant Customer full and complete control over the defense and settlement of the Customer Indemnifiable Claim; (3) provide assistance in connection with the defense and settlement of the Customer Indemnifiable Claim as Customer may reasonably request; and (4) comply with any settlement or court order made in connection with the Customer Indemnifiable Claim. Notwithstanding the previous sentence, Customer will not enter into any settlement that involves an admission of guilt or liability of Monument without Monument’s prior written consent. Monument may participate in the defense of a Customer Indemnifiable Claim at its own expense and with counsel of its own choosing.
Indemnification. Customer will indemnify the Monument Indemnified Parties from and pay: (1) all damages, costs, fines, judgments, expenses, liabilities, and attorneys’ fees reasonably incurred by the Monument Indemnified Parties in any Customer Indemnifiable Claim; and (2) all amounts that Customer agrees to pay to any third party to settle any Customer Indemnifiable Claim.
IP Infringement. If use of the Platform or any portion of the Rental Website provided by Monument is held to infringe (or if Monument reasonably believes will be held to infringe) any third-party Intellectual Property Rights, Monument may, at its option and expense: (1) modify the Platform or Rental Website to make them non-infringing; or (2) obtain a license that permits Customer to continue using the Platform or Rental Website. If Monument does not believe either option is reasonably practicable, Monument may terminate this Agreement. Section 10.A states Monument’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party Intellectual Property Rights arising from Customer’s use of the Platform or Rental Website.
Exclusion of Damages. Except for damages resulting from gross negligence or willful misconduct, neither Monument nor its suppliers, officers, affiliates, representatives, contractors, or employees will be liable to Customer for any consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including lost profits, loss of business, or loss of data, even if Monument is apprised of the likelihood of such damages occurring.
Damages Cap. Except for damages resulting from gross negligence or willful misconduct, Monument’s total liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed the total amount paid by Customer to Monument during the 12 months immediately preceding the claim (determined as of the date of any final judgment in an action).
Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 11 (Limitations of Liability) will apply to Customer solely to the extent permitted by Applicable Law.
Customer will obtain and maintain throughout the Term comprehensive general liability insurance and professional liability insurance in amounts that are commercially reasonable and customary for its operations. Customer will provide a copy of any such policy or a certificate evidencing the policy upon Monument’s written request.
Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in Dallas, Texas. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by Applicable Law and to the extent not already in the public domain. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
Monument may publicly list Customer as a customer of Monument and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communication with existing or potential Monument customers or investors.
Customer will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement.
Governing Law. This Agreement is governed by Texas law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Subject to Section 13 (Arbitration), all claims arising under this Agreement will be litigated exclusively in the federal or state courts of Dallas, Texas. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
Non-Solicitation. During the Term and for two years thereafter, Customer will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of Monument to terminate their engagement with Monument. This Section 16.B will apply solely to the extent permitted by Applicable Law.
Injunctive Relief. If either party breaches Sections 4 (Restrictions and Responsibilities) or 6 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.
Assignment. Neither party may assign this Agreement or delegate its performance without the other party’s prior written consent, and any attempt to do so is void; except either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
Entire Agreement. This Agreement (including any Order Forms) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter (including any nondisclosure agreements entered into in anticipation of this Agreement). Any additional provisions (including any “click wrap” terms, terms referenced via URL, or otherwise) in any purchase order or other document provided by Customer will be void and have no binding effect on Monument, except as described in Section 2.A (Order Forms). No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.
Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
Notices. All notices under this Agreement must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. All notices to Customer will be sent to the address listed on the Order Form. All notices to Monument will be sent to:
Monument Software, Inc.
PO Box 670205
Dallas, TX 75367
Email: privacy@monument.io
Force Majeure. Monument will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Monument’s reasonable control (a “Force Majeure Event”), so long as Monument uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Monument to delay or fail to perform its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement.
Interpretation. Any heading, caption, or section title contained in this Agreement is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”
Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.
(Feb-27-2025)
