MonJa Website Terms and
Conditions for Subscriptions
EFFECTIVE DATE: July 19, 2023
Set forth below are the standard MonJa Corporation (“MonJa”) Website Terms and Conditions, as may be amended modified or changed from time to time (“Website Terms”), for subscriptions and services provided and/or performed by MonJa. By signing an Order Form (defined below) for such subscriptions and/or services, a Subscriber (defined below) is deemed to have agreed to and accepted these Website Terms in connection with such subscriptions and/or services.
Upon payment of applicable fees due, MonJa shall activate Subscriber’s access to the MonJa System and/or provide Services subject to the terms and conditions of the Contract (defined below).
1. Defined Terms
Capitalized terms defined elsewhere in these Website Terms shall be used as they are defined. The following capitalized 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 on behalf of Subscriber for Limited Use.
“Authorized User” means each employee or authorized agent of Subscriber who has been issued log-in credentials to the MonJa System and entitled to access the MonJa 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 these Website Terms.
“Deliverables” means any work product, deliverables, data, information, reports, documentation or other materials that MonJa delivers to Subscriber in connection with its performance of Services, including any Valuation Services.
“Effective Date” means the date MonJa countersigns an Order Form duly executed and delivered by Subscriber.
“Limited Use” means a Subscriber’s accessing the MonJa System 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 in connection with the MonJa System which are required to be installed on Subscriber Systems in order to access the Services, and includes any updates that MonJa provides to Subscriber from time to time.
“MonJa Services” or “Services” means any services provided by or on behalf of MonJa which are accessible by Subscriber as part of its Subscription or that are performed by MonJa for Subscriber, including any MonJa Valuation Services.
“MonJa System” means the Local Software and any other software provided by MonJa to access the MonJa System, and the Proprietary Data and Authorized Analytics.
“MonJa Tools” means all concepts, know-how, tools, questionnaires and assessments, modules, courses, frameworks, software, algorithms, databases, content, models, and industry perspectives owned, developed or enhanced by MonJa outside of or in connection with the subscription to the MonJa System or the performance of Services.
“Order Form” means the order form executed by the Subscriber identified therein and MonJa.
“Proprietary Data” means the databases, data elements and data records contained in the Services and accessible by Subscriber through its Subscription.
“Subscriber” means the customer of MonJa that executes an Order Form for a subscription to the MonJa System and/or for Services.
“Subscriber Data” means any data, information or documents of Subscriber or any customer of Subscriber that are submitted by Subscriber and/or transmitted to the MonJa System by Subscriber, or otherwise captured, collected or created by, or made available to, MonJa by virtue of its performance of its obligations under the Contract, including without limitation, any (i) data, information or documents (in any form) that identifies the identity of, or is reasonably capable of being identified with, a particular customer of Subscriber (e.g., name, social security, account number or address) or (ii) any credentialing data or information of Subscriber or any third party (“Credentialing Data”) that Subscriber makes available to MonJa to allow MonJa or the MonJa System to access such Subscriber Data on any Subscriber Systems or any systems of any third party.
“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 subscription license for Subscriber’s access and use of the MonJa System pursuant to the Contract.
“Valuation Services” means professional services for the evaluation of certain designated assets that MonJa Valuation Services, LLC may provide to a Subscriber as set forth in an Order Form.
2. MonJa System and Services
Upon the Effective Date of the Contract and payment of all applicable fees due and payable to MonJa, and subject to the terms and conditions of the Contract, MonJa grants Subscriber for the Term a non-exclusive, non-transferable and non-sublicensable right for Authorized Users to access the MonJa System solely for a Permitted Use and in accordance with the terms and conditions of the Contract. MonJa may from time to time without breach of the Contract place cookies on Subscriber Systems to effectuate more efficient delivery of the MonJa System.
During the Term and subject to the terms and conditions of the Contract (including without limitation payment of fees), MonJa 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 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 under the Contract.
Upon the Effective Date of the Contract and payment of all applicable fees due and payable to MonJa, and subject to the terms and conditions of the Contract, MonJa will perform the Services in accordance with terms and conditions of the Contract.
3. Use of MonJa System
Subscriber shall at its own expense provide, operate and maintain all communication and other equipment, systems and networks necessary to access and benefit from the MonJa System.
Subscriber shall not, and shall not permit any Authorized User, to do any of the following:
- use or access the MonJa 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;
- decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the MonJa System;
- attempt to gain unauthorized access to the MonJa System, accounts, computer systems, or networks connected to any MonJa server;
- use any robot, spider or other automatic device or manual process to monitor or copy portions of the MonJa System;
- access or use the MonJa 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 System;
- 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;
- distribute the MonJa 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 System or portion thereof;
- reproduce, license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the MonJa System or the Authorized Analytics or any portion of either thereof;
- create derivative works from, modify or alter any of the MonJa System in any manner whatsoever other than as expressly permitted by way of Limited Use or as authorized by MonJa in advance in writing; or
- change the visual format (such as color and shape) of any MonJa mark or icon or 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 IRREPARABLE HARM AND DAMAGE FOR WHICH MONETARY RELIEF IS NOT AN ADEQUATE REMEDY AND MONJA SHALL BE ENTITLED TO SEEK INJUNCTIVE RELIEF FOR 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 that it is in compliance with the terms and conditions of the Contract. If Subscriber fails to so certify, MonJa may conduct an audit of Subscriber Systems and Subscriber’s business premises to determine Subscriber’s compliance or non-compliance.
5. Authorized Users
Subscriber’s access to and use of the MonJa System is limited only to the number of Authorized Users in the department or division set forth in the Order Form. MonJa will assign each Authorized User an identification code and password in order to access and use the MonJa System and such identification codes and/or passwords may not be transferred or otherwise assigned without MonJa’s prior written approval. Subscriber shall require that all Authorized Users keep identification codes and passwords strictly confidential and not share such information with any other party (including another Authorized User).
Upon termination of an Authorized User’s use of the MonJa System (whether because of termination of employment or otherwise), Subscriber shall promptly notify MonJa thereof by telephone or email as indicated under MonJa’s signature in the Order Form, confirming such notice in writing, and MonJa, after receipt of such email or telephone notice, will promptly disable such Authorized User’s access to the MonJa System and issue a new identification code and password to a new replacement Authorized User that Subscriber designates in such notice.
If Subscriber becomes aware that an Authorized User’s identification or password has been revealed to another person (including another Authorized User), Subscriber shall promptly notify MonJa by telephone or e-mail as indicated under MonJa’s signature in the Order Form, confirming such notice in writing, and MonJa, after receipt of such email or telephone notice will, as promptly as practicable, freeze access to the MonJa System for that identification code and password and will assign Subscriber’s Authorized User a new identification code and password.
Subscriber shall remain responsible and liable for its Authorized User’s compliance with the terms of this Agreement and their use of the MonJa System. Subscriber will defend, indemnify and hold MonJa and its licensees and/or licensors harmless for all damages, losses, costs, expenses (including reasonable attorney’s fees) and liabilities resulting from Subscriber’s use of the MonJa System or Subscriber’s or any Authorized User’s user identification numbers or passwords.
6. Proprietary Right; Deliverables
MonJa and its licensors own and retain all rights, title and interest, including all intellectual property rights, in and to the MonJa System, the Authorized Analytics, the MonJa Tools, its Confidential Information, any technology developed from any Services performed by MonJa for Subscriber herein, including all derivative works, improvements or modifications thereto by whomever made. No rights are granted to Subscriber hereunder other than as expressly set forth herein.
Upon payment in full of applicable fees by Subscriber, and subject to the terms herein, Subscriber will own all Deliverables prepared for and furnished to Subscriber by MonJa in connection the Services; provided, however, MonJa and its licensors retain all right, title and interest in and to MonJa Tools. To the extent the Deliverables include any embedded MonJa Tools, MonJa hereby grants Subscriber a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use and copy the MonJa Tools solely as part of the Deliverables and subject to the limitations herein on disclosure of MonJa materials (including the Deliverables). Subscriber agrees that, without MonJa’s prior written permission, Subscriber will not, and will not permit any third party to (a) access, copy or reverse engineer any MonJa Tool or Deliverable or (b) remove or circumvent security or technological safeguards, including notices, digital protection mechanisms, metadata, watermarks, or disclaimers provided with any MonJa Tool or Deliverable.
The Deliverables delivered to Subscriber are solely for the internal use of Subscriber only. MonJa will not disclose the Deliverables to any third parties without the Subscriber’s prior written permission. Subscriber will not disclose the Deliverables or any MonJa Tools to any third parties without MonJa’s prior written permission.
7. Subscriber Data
Subscriber and its licensors retain all right, title and interest in and to all Subscriber Data. Subscriber represents and warrants that: (i) Subscriber’s use of the MonJa System and all Subscriber Data is at all times compliant with Subscriber’s privacy policies and all applicable laws and regulations, including without limitation, all applicable laws and regulations related to data privacy; and (ii) Subscriber has sufficient rights in the Subscriber Data to grant the rights granted to MonJa below and that the Subscriber Data does not infringe or otherwise violate the rights of any third party. Subscriber hereby grants to MonJa a non-exclusive, worldwide, unrestricted and irrevocable right and license to use, copy, store, transmit, modify, create derivative works of, and display the Subscriber Data (other than Credentialing Data) to the extent necessary (i) to provide the MonJa System and the Services in accordance with this Contract and (ii) to calculate benchmarks and perform other analyses that it may use internally for product improvement purposes and/or provide, from time to time, to third parties in an anonymized or aggregated manner for a fee or otherwise that under no circumstances identifies the Subscriber or any customer of Subscriber. Subscriber hereby grants to MonJa a non-exclusive, worldwide, unrestricted and irrevocable right and license to use, copy, store or transmit Credentialing Data to the extent necessary to provide the MonJa System in accordance with this Contract. Subscriber shall indemnify, defend and hold harmless MonJa and its licensees and/or licensors from all damages, losses, costs, expenses (including reasonable attorney’s fees) and liabilities resulting from or arising out of Subscriber Data (including, without limitation, from the violation of any laws, regulations or privacy rights).
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the other party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Contract, the MonJa System, the Authorized Analytics, the MonJa Tools, the Services (including the Deliverables), fees and pricing information and any performance information (e.g., benchmarking results) relating to the MonJa System are the Confidential Information of MonJa. Except as expressly authorized herein, the Receiving Party will (a) hold in confidence Confidential Information, taking precautions that it would take for its own Confidential Information of a similar nature but not less than reasonable care, and (b) not disclose or use any Confidential Information except in furtherance of the Contract and as otherwise expressly permitted herein. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become generally available to the public through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information if is required to do so pursuant to any applicable law, rule or regulation of any court or government agency of competent jurisdiction, or any legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose prior to such disclosure, reasonable assistance in opposing or limiting such disclosure and limits the disclosure to that strictly required by such court, government agency or legal process. Each party acknowledges that an unauthorized disclosure or use of Disclosing Party Confidential Information would cause immediate and irreparable harm to the Disclosing Party and that, in such event, the Disclosing Party shall be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without the posting of a bond or the necessity of showing actual monetary damages.
Except as otherwise provided in this Section 9, the Subscription shall begin on the Effective Date for an initial period set forth in the Order Form and shall automatically renew for additional one-year periods thereafter, unless either party provides the other party with written notice of its intent to not renew at least sixty (60) calendar days prior to the expiration of the then-current term (“Term”). The term for the performance of Services shall commence on the Effective Date for the period set forth in the Order Form or until completion of the applicable Services.
Either party may terminate the Contract as follows: (a) upon thirty (30) days written notice if the other Party breaches any material provision of the Contract and does not cure such breach before the end of such cure period; (b) effective immediately and without notice if the other party ceases to do business or otherwise terminates its operations, except as a result of a permitted assignment hereunder; or (c) if the other party seeks protection under any bankruptcy, receivership, trust deed, creditor’s arrangement or comparable proceedings, if such proceeding is instituted against that party (and not dismissed with sixty (60) days thereafter).
Upon early termination or expiration of this Contract, (i) Subscriber’s access to, and use of, the MonJa System shall immediately cease, (ii) Subscriber shall promptly return the Licensed Software to MonJa (or, if MonJa requests, Subscriber shall promptly destroy the Licensed Software) and certify the same and (iii) MonJa shall cease performance of any Services. Upon any early termination or expiration of the Agreement, all payment obligations with respect to unpaid subscriptions for the MonJa Systems or Services are irrevocable and Customer is to pay such amounts promptly to MonJa on termination of expiration of the Agreement, and Subscriber will not be entitled to any refund of any prepaid amounts. Sections 4 through 28 (except for the second paragraph of Section 6) shall survive any expiration of termination of this Agreement.
10. Billing and Payment
All fees are due 30 calendar days from the date of the invoice and are non-cancellable and non-refundable. A Subscription level for the MonJa System cannot be reduced during or prior to the expiration of the then-current term.
MonJa in its sole discretion shall have the right to suspend or terminate Subscriber’s access to the MonJa 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 reserves the right to claim interest at a rate not to exceed eighteen percent (18%) per annum (but not to exceed the maximum rate permitted by law) on any undisputed overdue amount and shall be entitled to recover reasonable 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 amounts are payable in U.S. Dollars.
Subscriber will not setoff or offset against MonJa’s invoiced amounts which Subscriber claims are due to Subscriber and waives any right it may have to offset, setoff, or withhold payment for MonJa products and/or services.
11. 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’s prior written consent, to be given or withheld in MonJa’s sole discretion.
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 with respect to any portion of the MonJa System or Services (“Feedback“), including any enhancement, improvements or new features to same, will be the property of MonJa. Subscriber hereby assigns to MonJa all right, title and interest worldwide in and to the Feedback and the related intellectual property rights both during and after the term of the Subscription or the performance of the Services, as applicable, and agrees to assist MonJa in securing and perfecting such rights.
14. Support and Maintenance
During the Term of a Subscription, MonJa shall use commercially reasonable efforts to provide customer support services as are customary in the industry. Subscriber shall promptly install upon receipt, and access and use in accordance with the Contract, all updates, upgrades, new releases and versions (major or minor) of the MonJa System.
MonJa reserves the right to alter the MonJa System, including without limitation, implementing user priorities or rules for use by subscribers generally, or discontinuing certain functional aspects of the MonJa System.
MonJa may limit, interrupt, suspend or deny access to or use of the MonJa System by Subscriber during routine or emergency system maintenance, updates, network failures and events of force majeure. MonJa will use commercially reasonable efforts to schedule routine maintenance during non-business hours, Pacific Standard Time.
15. Exclusions of Liability and Damages
IN NO EVENT SHALL MONJA, ANY OF ITS AFFILIATES OR ANY OF ITS LICENSORS, CONTENT PROVIDERS OR OTHER INFORMATION PROVIDERS (COLLECTIVELY THE “MONJA PARTIES”) BE LIABLE TO SUBSCRIBER OR ANY SUBCRIBER CUSTOMERS FOR ANY USE BY SUBSCRIBER’S OR ANY OTHER PARTY’S OF THE MONJA SYSTEM OR THE SERVICES, FOR THE INABILITY OR FAILURE TO CONDUCT ITS BUSINESS, OR FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF THE MONJA SYSTEM OR THE SERVICES (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 SUBSCRBER OR ANY OTHER PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES.
16. Dollar Limit on Recoverable Damages
THE TOTAL AGGREGATE LIABILITY OF THE MONJA 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.
(A) THE MONJA SYSTEM OR ANY COMPONENT THEREOF, THE SERVICES (INCLUDING ANY DELIVERABLES OR MONJA TOOLS DELIVERED TO SUBSCRIBER) OR ANY PRODUCT OR SERVICE ACCESSED, LICENSED OR PURCHASED THROUGH THE MONJA SYSTEM, OR ANY SOFTWARE DEVICES AND RELATED MATERIALS USED IN OR DOWNLOADED IN CONNECTION THEREWITH (COLLECTIVELY, THE “SPECIFIED PRODUCTS”), ARE ALL PROVIDED ON AN “AS IS“ AND “AS AVAILABLE” BASIS;
(B) MONJA ON BEHALF OF ITSELF AND EACH OTHER MONJA 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;
(C) MONJA ON BEHALF OF ITSELF AND EACH OTHER MONJA PARTY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO (1) THE TIMELINESS OF THE SPECIFIED PRODUCTS, (2) WHETHER THE SPECIFIED PRODUCTS WILL OPERATE PROPERLY IN CONJUNCTION WITH SUBSCRIBER’S OR ANY OTHER PERSON’S OPERATING ENVIRONMENT (WHETHER KNOWN TO A MONJA PARTY OR NOT), (3) THE RESULTS TO BE OBTAINED BY THE USE OF THE SPECIFIED PRODUCTS, OR (4) WHETHER THE SPECIFIED PRODUCTS WILL MEET SUBSCRIBER’S OR ANY OTHER THIRD PARTY’S REQUIREMENTS;
(D) MONJA ON BEHALF OF ITSELF AND EACH OTHER MONJA PARTY DOES NOT GUARANTEE THAT THE SPECIFIED PRODUCTS 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 ON BEHALF OF ITSELF AND EACH OTHER MONJA PARTY DOES NOT ASSUME RESPONSIBILITY FOR ANY INVESTMENT, FINANCIAL DECISIONS OR RECOMMENDATIONS MADE BASED ON THE SPECIFIED PRODUCTS; AND
(f) NO MONJA PARTY SHALL BE HELD RESPONSIBLE FOR ANY SYSTEM MALFUNCTION, PERIOD OF UNAVAILABILITY OR OTHER COMMUNICATION OR CONNECTION PROBLEMS OF ANY SPECIFIED PRODUCTS.
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT: (A) MONJA AND EACH MONJA PARTY DO NOT GUARANTEE OR WARRANT, AND EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY GUARANTEES OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF ANY DELIVERABLES PROVIDED IN CONNECTION WITH SERVICES; (B) THE SERVICES (AND ANY DELIVERABLES DELIVERED) SHALL NOT BE DEEMED INVESTMENT, LEGAL, TAX, ACCOUNTING OR OTHER REGULATED ADVICE; (C) NEITHER MONJA NOR ANY MONJA PARTY SUPPLANT SUBSCRIBER’S MANAGEMENT OR OTHER DECISION-MAKING BODIES OR GUARANTEE OR WARRANT RESULTS; (D) SUBSCRIBER REMAINS SOLELY RESPONSIBLE FOR DECISIONS, ACTIONS, USE OF THE DELIVERABLES AND COMPLIANCE WITH APPLICABLE LAWS, RULES AND REGULATIONS; AND (E) SUBSCRIBER WILL PAY FOR ANY COSTS, INCLUDING ATTORNEY FEES, MONJA OR ANY MONJA PARTY INCURS AS A RESULT OF MONJA’S OR A MONJA PARTY’S PARTICIPATION AS A NON-PARTY IN ANY LEGAL, REGULATORY, ADMINISTRATIVE OR OTHER PROCEEDING ARISING FROM THE SERVICES.
18. Allocation of Risk
By entering into the Contract, Subscriber agrees with MonJa that Sections 15 (‘Exclusions of Liability And Damages”), 16 (“Dollar Limit on Recoverable Damages”) and 17 (“Disclaimers”) fairly allocate the risks in the Contract between MonJa and Subscriber.
SUBSCRIBER AND MONJA 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.
19. Jurisdictional Limitations on Disclaimers and Exclusions
Some jurisdictions may not allow the limitation or exclusion of liability for incidental or consequential damages or the exclusion of certain warranties; and thus, some of the limitations in Sections 15 (‘Exclusions of Liability And Damages”), 16 (“Dollar Limit on Recoverable Damages”) and 17 (“Disclaimers”) may not apply to the Contract solely to the extent not permitted by applicable law.
During the Term, and for a period of one (1) year thereafter, neither Subscriber nor any of its representatives will (or will encourage, assist or permit others to), directly or indirectly, solicit for purposes of employment, offer for hire, entice away or employ any person who at such time is an employee or consultant to MonJa.
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.
22. 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 CONTRACT OR ANY RELATED TRANSACTION.
23. Contract Amendment
MonJa may amend, modify or make changes to the Website Terms from time to time (“Modifications”). MonJa will post any Modifications to the URL for the Website Terms and such Modifications will be effective immediately after posting. MonJa advises Subscriber to review the latest version of the Website Terms at the URL to stay informed of the then-current Website Terms. If Subscriber does not agree to any Modifications to the Website Terms, Subscriber must, in writing within thirty (30) days of MonJa’s posting of the Modifications, notify MonJa of its objection and confirm its intent to terminate its use of the MonJa System and/or Services at the end of the then-current Term thereof. In such event, the Website Terms in effect prior to the Modifications will remain in effect for the remainder of the then-current Term. If Subscriber does not cease use of the MonJa System at the end of such then-current Term, Subscriber shall be deemed to have rescinded its objection and such Modifications shall be deemed accepted by Subscriber. Except as provided otherwise in this Section 23, any use of the MonJa System or provision of Services by MonJa will constitute Subscriber’s acceptance of the Modifications.
24. 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.
25. Relationship of the Parties
MonJa is acting as an independent contractor and nothing is intended to create an employment relationship or partnership or joint venture between MonJa and Subscriber.
26. OFAC Specially Designated Nationals, etc.
Subscriber may not export or re-export any underlying software or technology accessed through the MonJa 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.
27. High Risk Activities
The MonJa 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 System could lead to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). Subscriber shall not use the MonJa System or any part thereof for High Risk Activities and neither MonJa nor its licensors shall have any liability for any damages arising from the use of the MonJa System in any High Risk Activity.
28. MonJa Affiliates
Subscriber acknowledges and agrees that MonJa may fulfill an Order Form, or perform Services through any affiliate or subsidiary of MonJa (each a “MonJa Party”), including without limitation, MonJa Valuation Services LLC; provided, however, MonJa shall remain responsible for such fulfillment and/or delivery of Services.
29. Third Party Providers
END OF WEBSITE TERMS