MONJA VALUATION SERVICES, LLC TERMS AND CONDITIONS FOR SUBSCRIPTIONS

Set forth below are the MonJa Valuation Services, LLC (“MonJa VS”) standard Terms and Conditions (as MonJa VS may amend, modify or delete from time to time, “Terms and Conditions”) for subscriptions and are applicable to all subscriptions for MonJa VS services. Terms are subject to revision by MonJa VS in its discretion and without notice. For further information please contact your MonJa VS customer representative. A Subscriber by signing an order form is deemed to have agreed to and accepted these Terms and Conditions as from time to time in effect.

Upon payment of fees due, MonJa VS shall activate Subscriber’s access to the Services subject to the terms and conditions of the Contract.

1. Defined Terms

Terms defined elsewhere in these Terms and Conditions shall be used as they are defined. The following terms shall have the following meanings for all purposes:

“Authorized Analytics” means an Authorized User’s use of Proprietary Data while a Subscription is in effect as a raw input for performing, analyses, calculations, visualizations or mathematical transformations behalf of Subscriber for Limited Use.

“Authorized User” means each employee and authorized agent of Subscriber who has been issued log-in credentials to the MonJa VS System and entitled to access the MonJa VS System on behalf of Subscriber, up to the maximum number (if any) set forth in the Order Form.

“Contract” means, collectively, each Order Form and Terms and Conditions.

“Effective Date” means the date MonJa VS accepts in writing an Order Form duly executed and delivered by Subscriber.

“Limited Use” means a Subscriber’s accessing the Services for its internal business purposes to download, and reproduce insubstantial and discrete portions of Proprietary Data, to store such discrete elements on Subscriber Systems, to manipulate, analyze, reformat, print or display such insubstantial and discrete portions, and to distribute the same internally where such distribution is incidental to Subscriber’s internal business purposes, in each case subject to the requirements and restrictions set forth in the Contract.

“Local Software” means the software or applications provided by MonJa VS in connection with the MonJa VS Services which are required to be installed on Subscriber Systems in order to access the Services.

“MonJa VS Services” or “Services” means any services provided by or on behalf of MonJa VS which are accessible by Subscriber as part of its Subscription.

“MonJa VS System” means the Services, the Local Software and any other software provided by MonJa VS to access the Services, and the Proprietary Data.

“Order Form” means the order or subscription form signed by the subscriber identified therein and accepted in writing by MonJa VS.

“Proprietary Data” means the databases, data elements and data records contained in the Services and accessible by Subscriber through its Subscription.

“Subscriber” means each person that executes an Order Form.

“Subscriber Systems” means the servers and computer system(s) owned and controlled by Subscriber, in the environment and/or subject to the installation limits set forth in the Subscriber’s Order Form.

“Subscription” means the provision of Services and access to the MonJa VS System pursuant to the Contract.

2. MonJa VS Services

Upon effectiveness of the Contract and payment of all fees due and payable to MonJa VS, and subject to the terms and conditions of the Contract, MonJa VS grants Subscriber a non-exclusive, non-transferable and non-sublicensable right for Authorized Users to access the Services solely for a Permitted Use and in accordance with the terms and conditions of the Contract. MonJa VS may from time to time without breach of the Contract place cookies on Subscriber Systems to effectuate more efficient delivery of the Services

During the Term and subject to the terms and conditions of the Contract (including without limitation payment of fees), MonJa VS hereby grants to Subscriber a limited, non-exclusive, non-transferable and non-sublicensable license to install the object code version of any Local Software delivered by MonJa VS on the designated Subscriber Systems and to allow only up to the permitted number of Authorized Users to run such Local Software solely for Permitted Use and subject to any restrictions or usage limitations specified in any documentation for Local Software. The Local Software may contain or be distributed with third-party software covered by an open-source software license or other third-party software which are not subject to the license granted by MonJa VS under the Contract.

Nothing in the Contract shall preclude MonJa VS from including, and Subscriber gives MonJa VS the right to use, information or data related to Subscriber’s use of the Services in an anonymized and aggregated form

3. Requirements and Restrictions of Use

Subscriber shall at its own expense provide, operate and maintain all communication and other equipment, systems and networks necessary or advisable to access and benefit from the MonJa VS System.

Where practicable, Subscriber shall clearly identify MonJa VS as the source of the information provided.

Subscriber shall not, and shall not permit any Authorized User or any other third party to do any of the following:

1. use or access the MonJa VS System in a manner other than for Limited Use in connection with Subscriber’s internal operational needs and in accordance with applicable law and the Contract;
2. decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the MonJa VS System;
3. attempt to gain unauthorized access to the MonJa VS System, accounts, computer systems, or networks connected to any MonJa VS server;
4. use any robot, spider or other automatic device or manual process to monitor or copy portions of the MonJa VS System
5. access or use the MonJa VS System or the Authorized Analytics in order to (i) build a competitive product or service, or (ii) build a product using similar unique and confidential ideas, features, functions or graphics of the MonJa VS System;
6. use the Authorized Analytics in substantial portions in a manner that is frequent or systematic or use or distribute any Authorized Analytics as a stand-alone product or service;
7. distribute the MonJa VS System or any portion thereof with information vending or commercial publishing (in any manner or format whatsoever), timesharing service, service bureau, network or by any other means through any services with a third party (e.g., joint or co-branded services) or authorize any third party to link, bookmark or point from a third-party service to the MonJa VS System or portion thereof;
8. reproduce, license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the MonJa VS System or the Authorized Analytics or any portion of either thereof;
9. create derivative works from, modify or alter any of the MonJa VS System in any manner whatsoever other than as expressly permitted by way of Limited Use or as authorized by MonJa VS in advance in writing;
10. change the visual format (such as color and shape) of any MonJa VS mark or icon nor cause it to become aesthetically disrupted or distorted.

SUBSCRIBER ACKNOWLEDGES THAT A BREACH OF ANY OF THE PROVISIONS IN CLAUSES (a) THROUGH (j) WILL CAUSE MonJa VS IRREPARABLE HARM AND DAMAGE FOR WHICH MONETARY RELIEF IS NOT AN ADEQUATE REMEDY AND MonJa VS SHALL BE ENTITLED TO SEEK INJUNCTIVE RELIEF FROM SUCH BREACH, WITHOUT POSTING SECURITY, IN ADDITION TO OTHER RIGHTS AND REMEDIES WHICH MAY BE AVAILABLE TO IT AT LAW OR IN EQUITY.

Upon request, Subscriber shall promptly certify in writing to MonJa VS that it is in compliance with the terms and conditions of the Contract. If Subscriber fails to so certify, MonJa VS may conduct an audit of Subscriber Systems and Subscriber’s business premises to determine Subscriber’s compliance or non-compliance

4. Authorized Users

Subscriber’s access to and use of the Services and Content is limited to the number of Authorized Users in the department or division set forth under Subscriber’s signature above. MonJa VS will assign each Authorized User an identification code and password in order to access the Services and such identification codes and/or passwords may not be transferred or otherwise assigned without MonJa VS’s prior written approval.

If Subscriber becomes aware that an Authorized User’s identification or password has been revealed to a person outside Subscriber who is not expressly authorised by Subscriber to use it, Subscriber shall promptly notify MonJa VS by telephone or e-mail as indicated under MonJa VSs’s signature above, confirming such notice in writing and MonJa VS, after such email or telephone notice will, as promptly as practicable, freeze access to the Services for that identification code and password and will assign Subscriber a new identification code and password.

Subscriber agrees to defend, indemnify and hold MonJa VS and its licensees and/or licensors harmless for all damage, losses, costs, expenses (including reasonable attorney’s fees) and liabilities resulting from the unauthorized use of Subscriber’s or any Authorized User’s user identification numbers or passwords.

5. Term

The Subscription, and Subscriber’s obligation to make payment, shall begin on the Effective Date for an initial period set forth in the Order Form and shall automatically renew, for a period specified in the Order Form or otherwise agreed in writing between MonJa VS and Subscriber but in any event not less than twelve (12) consecutive calendar months for each term after the initial term. Non-renewals shall require sixty (60) calendar days advance notice before the expiration of the then-current term.

6.    Billing and Payment

All fees are due 30 calendar days from the date of the invoice and are non-cancellable and non-refundable. Subscription level cannot be reduced during or prior to the expiration of the then-current term.

MonJa VS in its sole discretion shall have the right to suspend or terminate Subscriber’s access to the MonJa VS System in the event fees or other required amounts are not paid when due.

Sales use and similar taxes and levies are not included in fees, including fees set forth on an Order Form and such taxes and levies shall be paid by Subscriber upon invoice.

MonJa VS reserves the right to claim interest at a rate not to exceed five percent (5%) per annum (but not to exceed the maximum rate permitted by law) on any undisputed overdue amount and shall be entitled to recover reasonabl legal fees and disbursements incurred in enforcing Subscriber’s obligations and obtaining equitable relief under the Contract.

Unless otherwise set forth in an invoice, all amount are payable in U.S. Dollars.

Subscriber will not setoff or offset against MonJa VS’s invoices amounts which Subscriber claims are due to Subscriber and waives any right it may have to offset, setoff, or withhold payment for MonJa VS products and/or services.

7.    No assignment or delegation by subscriber

Subscriber may not assign its rights or delegate its duties, in whole or in part, under the Contract without MonJa VS’s prior written consent, to be given or withheld in MonJa VS’s sole discretion.

8.    Suggestions

Any ideas, feedback, suggestions, corrections, alterations, improvements, additional data points, requests, questions, comments, results of any test or evaluation and the like made by Subscriber to MonJa VS with respect to any portion of the MonJa VS System (“Feedback“), including any enhancement, improvements or new features to same, will be the property of MonJa VS. S ubscriber hereby assigns and agrees to assign to MonJa VS all right, title and interest worldwide in and to the Feedback and the related intellectual property rights and both during and after the term of the Subscription and agrees to assist MonJa VS in securing and perfecting such rights. The foregoing restriction shall not prevent Subscriber from using such Feedback solely for its own internal use.

9.    Publicity

MonJa VS may publicly identify Subscriber as a customer, including on its website, government filings, and in marketing materials, and Subscriber hereby grants to MonJa VS the nonexclusive right to use Subscriber’s name and trademarks (including logos) solely for such purpose. Subscriber acknowledges and agrees that MonJa VS may use information provided by Subscriber to MonJa VS directly or indirectly, in accordance with MonJa VS’s privacy policy then in effect, a copy of which is available upon written request from MonJa VS.

10. Support and Maintenance

MonJa VS shall use commercially reasonable efforts to provide customer support services as are customary in the industry. Subscriber shall promptly install upon receipt all updates, upgrades, new releases and versions (major or minor) with respect to the MonJa VS System. Upon installation of any of the foregoing, the license granted to Subscriber shall automatically transfer, subject to the terms and conditions of the Contract, to the newly-installed product and license(s) granted to the replaced product shall automatically be null and void.

MonJa VS reserves the right to alter the MonJa VS System, including without limitation, implementing user priorities or rules for use by subscribers generally, or discontinuing certain functional aspects of the MonJa VS System.

MonJa VS may limit, interrupt, suspend or deny access during routine or emergency system maintenance, updates, network failures and events of force majeure. MonJa VS will use commercially reasonable efforts to schedule routine maintenance during non-business hours, Pacific Standard Time

11. Exclusions of Liability and Damages

IN NO EVENT SHALL MonJa VS, ANY OF ITS AFFILIATES OR ANY OF ITS LICENSORS, CONTENT PROVIDERS OR OTHER INFORMATION PROVIDERS (COLLECTIVELY THE “MonJa VS PARTIES”) BE LIABLE FOR ANY RESULTS OF SUBSCRIBER’S OR ANY OTHER PARTY’S USE OF THE MonJa VS SYSTEM, FOR THE INABILITY OR FAILURE TO CONDUCT ITS BUSINESS, OR FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST OR DAMAGED DATA, DAMAGED COMPUTER SYSTEMS OR FILES, LOSS OF USE, LOSS OF PROFITS OR REVENUES, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER ECONOMIC LOSS OF SUBSCRIBER, ANY USER OR ANY OTHER PERSON), WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, AND WHETHER OR NOT MonJa VS OR ANY OTHER MonJa VS PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES

12. Dollar Limit on Recoverable Damages

THE TOTAL AGGREGATE LIABILITY OF THE MonJa VS PARTIES TAKEN TOGETHER TO SUBSCRIBER,AND ALL OTHER PERSONS FOR DIRECT DAMAGES IS LIMITED IN THE AGGREGATE TO THE TOTAL FEES PAID BY SUBSCRIBER HEREUNDER DURING THE ONE (1)-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES

13. Disclaimers

(A)           THE MonJa VS SYSTEM, ANY PORTIN THEREOF OR ANY PRODUCT OR SERVICE ACCESSED, LICENSED OR PURCHASED THROUGH THE MonJa VS SYSTEM, OR ANY SOFTWARE DEVICES AND RELATED MATERIALS USED IN OR DOWNLOADED IN CONNECTION THEREWITH (COLLECTIVELY, THE “SPECIFIED PRODUCTS”), ARE ALL PROVIDED “AS IS“;

(B)        MonJa VS ON BEHALF OF ITSELF AND EACH OTHER MonJa VS PARTY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE WITH RESPECT TO THE SPECIFIED PRODUCTS OR ANY THEREOF,

(C)        MonJa VS ON BEHALF OF ITSELF AND EACH OTHER MonJa VS PARTY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE TIMELINESS OF THE SPECIFIED PRODUCTS, WHETHER THE SPECIFIED PRODUCTS OR ANY THEREOF WILL OPERATE PROPERLY IN CONJUNCTION WITH SUBSCRIBER’S OR ANY OTHER PERSON’S OPERATING ENVIRONMENT (WHETHER KNOWN TO A MonJa VS PARTY OR NOT);THE RESULTS TO BE OBTAINED BY THE USE OF THE SPECIFIED PRODUCTS OR ANY THEREOF, OR THAT THE SPECIFIED PRODUCTS OR ANY THEREOF ANY THEREOF WILL MEET SUBSCRIBER’S OR ANY OTHER THIRD PARTY’S REQUIREMENTS;

(D) MonJa VS ON BEHALF OF ITSELF AND EACH OTHER MonJa VS PARTY DOES NOT GUARANTEE THAT THE SPECIFIED PRODUCTS OR ANY THEREOF WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, SECURE, OR FREE OF ANY ERROR, DEFECT OR VIRUS OR THAT ANY ERROR, DEFECT, OR VIRUS WILL BE CORRECTED;

(E) MonJa VS ON BEHALF OF ITSELF AND EACH OTHER MonJa VS PARTY DOES NOT ASSUME RESPONSIBILITY FOR ANY INVESTMENT AND FINANCIAL DECISIONS OR RECOMMENDATIONS MADE BASED ON THE SPECIFIED PRODUCTS OR ANY THEREOF; and

(f) NO MonJa VS PARTY shall be held responsible for any system malfunction, period of unavailability OR OTHER COMMUNICATION OR CONNECTION PROBLEMS.

ADDITIONALLY, NEITHER MonJa VS NO ANY OTHER MonJa VS PARTY WILL BE RESPONSIBLE FOR ANY LINKS CONTAINED IN THE MonJa VS SYSTEM OR IN SEARCH RESULTS GENERATED BY THE MonJa VS SYSTEM TO WEBSITES, WEBSITE-LINKS AND/OR WEBSITE-RELATED SERVICES OR PRODUCTS, ALL OF WHICH ARE NOT AND SHALL NOT BE CONSIDERED TO BE, PART OF THE MonJa VS SYSTEM (“OUTSIDE MATERIALS”) AND ANY USE OF ANY OUTSIDE MATERIALS IS AND SHALL BE AT SUBSCRIBER’S OWN RISK. SUCH USE OF, OR ANY CLICK THROUGH TO, ANY OUTSIDE MATERIALS WILL BE SUBJECT TO THEIR APPLICABLE TERMS-OF-SERVICE AND PRIVACY POLICIES, NONE OF WHICH ARE CONTAINED AS PART OF THE MonJa VS SYSTEM AND THE REVIEW OF AND COMPLIANCE WITH SUCH POLICIES ARE THE SOLE RESPONSIBILITY OF SUBSCRIBER.

14. Allocation of Risk

By entering into the Contract, Subscriber agrees with MonJa VS that Sections 11 (‘EXCLUSIONS OF LIABILITY AND DAMAGES”), 12 (“DOLLAR LIMIT ON RECOVERABLE DAMAGES”) and 13 (“DISCLAIMERS”) fairly allocate the risks in the Contract between MonJa VS and Subscriber.

SUBSCRIBER AND MonJa VS FURTHER AGREE THAT THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT SUCH, EXCLUSIONS, LIMITATIONS AND DISCLAIMERS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE CONTRACT OR ANY LIMITED REMEDY UNDER THE CONTRACT.

15. Jurisdictional Limitations on Disclaimers and Exclusions.

Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages or the exclusion of certain warranties so some of the limitations in sections 8, 9 or 10 may not apply to the Contract.

16. Notices

All notices or other communications required or permitted to be given, made or delivered under the Contract will be in writing, sent to the person and address set forth in the Order Form by overnight courier or personal delivery and will be effective upon receipt.

17. Governing Law, Jurisdiction and Waiver of Jury Trial

The Contract shall be governed by, and construed in accordance with, the laws of the State of California, without regard to its conflict of laws principles.

The parties consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco for the purposes of adjudicating any matter arising from or in connection with the Contract.

THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS ADDENDUM OR ANY RELATED TRANSACTION.

18. Contract Amendment

MonJa VS may from time to time in its sole discretion amend, modify, supplement, remove or edit (collectively, “Modifications”) any provision of the Terms and Conditions. A Modification shall be effective as and when determined by MonJa VS. Upon effectiveness, the Contract shall be deemed amended by such Modification. MonJa VS shall not have any obligation to obtain the consent or authorization or, or to provide notice to, the Subscriber for any Modification prior to or after effectiveness of the Modification.

19. Contract Interpretation and Severability

The Contract represents the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior arrangements or discussions, written or oral, between the parties. The headings used herein are for convenience only shall not be used in the construction or interpretation of the Contract or the transactions contemplated hereby. If for any reason one or more provisions of the Contract is or are held invalid, the other provisions of the Contract shall remain in full force and effect.

20. Relationship of the Parties

MonJa VS is acting as an independent contractor and nothing is intended to create an employment relationship or partnership or joint venture between MonJa VS and Subscriber.

21. OFAC SPECIALLY DESIGNATED NATIONALS, ETC.

Subscriber may not export or re-export any underlying software or technology accessed through the MonJa VS System, except in full compliance with the Contract and all United States and other applicable laws and regulations. In particular, but without limitation, none of the underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) any United States embargoed country; or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s or State Department’s Table of Denial Orders. Subscriber represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list.

22. High Risk Activities

The MonJa VS System is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation any application in which the failure of the MonJa VS System could lead to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). Subscriber shall not use the MonJa VS System or any part thereof for High Risk Activities and neither MonJa VS nor its licensors shall have any liability for any damages arising from the use of the MonJa VS System in any High Risk Activity.

23. Proprietary Rights

MonJa VS or its third party providers own and retain all rights, title and interest, including but not limited to copyright, trademarks, patents, database rights, trade secrets, know-how, and all other intellectual property rights or forms of protection of similar nature or having equivalent effect, anywhere in the world, in the Services is not granted any proprietary interest therein or thereto except for express limited license grant in the Contract.