Terms of Service

MONO SOLUTIONS SOFTWARE AS A SERVICE RESELLER TERMS OF SERVICE

Last updated: September 10, 2019

These Mono Solutions Software as a Service Reseller Terms of Service (these “Reseller Terms”), are entered into by and between Mono Solutions Inc, a company registered in Delaware (“Mono”), having its principal place of business at 2420 17th St. Denver, CO 80202, and the party identified agreeing to be bound to these Reseller Terms, whether in writing or via online acceptance (the “Company”) as of the date of such acceptance by Company (the “Effective Date”). Mono and Company may be referred to herein as the “Parties” and each as a “Party.” By using the Mono Solutions, you are agreeing to be bound by these Reseller Terms. If you do not agree to these Reseller Terms, you are prohibited from using the Mono Solutions.

Section 1. Solutions; License.

Subject to the terms and conditions of these Reseller Terms, Mono hereby grants Company a limited, revocable, non-transferable, non-sublicensable, non-assignable, non-exclusive license and right, during the Term of these Reseller Terms (as set forth in Section 9 hereof), to access and use Mono’s technology solutions, including all software, technology and documentation related thereto, for delivering websites and related offerings, as more specifically described at https://www.monosolutions.com/description-of-solut... (the “Solutions”) for itself or on behalf of its customers (the “Customers”), provided that such Customers have agreed to terms of service that contain provisions which comply with the EULA Requirements available at https://www.monosolutions.com/end-user-license-agr... “EULA Requirements”), as may be updated from time to time by Mono with prior written notice. Access and use of the Solutions shall be restricted to Company employees and contractors (the “Designated Users”) and the Customers solely for the purposes of, as to the Company (a) integrating the Solutions with and into the Company’s overall digital service offerings; (b) marketing and selling the Solutions to potential Customers; and (c) providing the Solutions to Customers; and, as to the Customers, (d) utilizing the Solutions to deliver websites and related offerings to enable small businesses to establish, maintain and advance their presence across the digital landscape. No Designated User shall be a competitor or employed by a competitor of Mono, as determined in Mono’s reasonable discretion. Access to the Solutions may be provided by Mono through Mono’s approved application programming interface (“API”) or Mono’s reseller administrative interface (“RAI”). Access to the Solutions, including via the RAI, shall be password protected and limited to Designated Users, for which Company shall be solely responsible, including any transactions undertaken using such password. The Solutions shall be provided in conformity with the Service Level Agreement available at https://www.monosolutions.com/service-level-agreem... (the “SLA”). Except for the termination rights set forth in Section 9, the SLA provides the exclusive remedies of Company with respect to a breach of the SLA. Mono reserves the right to develop new modules, features and/or products which may be separately marketed and priced from the Solutions (“Additional Offerings”).

Section 2. License and Use Restrictions. 

Company shall not, nor shall Company allow any Customer to: (a) reproduce, modify, decompile, reverse engineer, or disassemble the Solutions or otherwise attempt to derive any of Mono’s Intellectual Property Rights (as defined below) in the Solutions; (b) sell, resell, rent, lend, lease, sublicense, transfer, assign, and/or make available on a service bureau basis, the Solutions, except as contemplated hereby; (c) create any derivative works based on the Solutions; (d) modify, alter, delete, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends that appear on or are affixed to the Solutions; (e) interfere with the proper operation of the Solutions by any means; (f) use any automated means to access the Solutions, except through the RAI and/or a Mono approved application programming interface (“API”). “Intellectual Property Rights” means any copyright, trademark, service mark, patent, trade secret, moral right, privacy right, right of publicity, or other intellectual property or proprietary right, whether registered or unregistered and all applications and rights to apply for registration or protection of any of the foregoing arising under the laws of any jurisdiction.

Section 3. Company Obligations. 

Company shall be solely responsible, at its sole cost and expense, for providing and maintaining all hardware, software, hosting, electrical and other requirements necessary for Company’s use of and access to the Solutions, except as provided herein. To the extent Mono updates the EULA Requirements, Company shall ensure that each Customer agrees to terms of service that comply with such updated EULA Requirements. Company shall be solely responsible for all actions of and agreements with third parties engaged by Company to provide any integrations of the Solutions with Company’s infrastructure, including its Designated Users. Company agrees that the Solutions shall be Company’s exclusive source for software, solutions and services related to websites.

Section 4. Third Party Services. 

Mono provides access to certain third partyservices and products that have been integrated with the Solutions, as setforth at https://www.monosolutions.com/end-user-license-agr... (the “Third Party Services”). By accessing and using the Third Party Services, Company agrees to be bound and/or, as applicable, cause its Customers to agree to be bound by the legal terms and conditions for such Third Party Services, as set forth at the above hyperlink (the “Third Party Service Terms”). Company acknowledges and agrees that Mono shall not be liable for Company’s or its Customer’s failure to comply with such Third Party Service Terms, and/or any damages or liabilities resulting therefrom or the failure of such Third Party Services to perform in any circumstance, including without limitation, any non-compliance with service levels or other terms and conditions offered by the providers of such Third Party Services, none of which shall be subject to the SLA. Mono reserves the right to discontinue access to some or all Third Party Services and/or to replace existing Third Party Services with alternative Third Party Services upon notice to Company.

Section 5. Fees.

Company shall pay to Mono’s authorized marketplace partner, Vendasta, the fees with respect to the Solutions (the “Mono Fees”) and the fees for Third Party Services (“Third Party Service Fees” and together with the Mono Fees, the “Fees”), if any, each as set forth in the order form or other commercial agreement which incorporates these Reseller Terms by reference or within the applicable Third Party Service Terms. Mono reserves the right to modify the Mono Fees upon giving at least 90 days prior written notice to Company, provided that any Customer contracts entered into prior to the effective date of such change shall not be subject to such change throughout the then-current term of such Customer contract. . Mono reserves the right to modify the Third Party Service Fees for any Third Party Services, including those that were previously provided at no cost, upon the earlier of: (a) the effective date of any such price increase from the provider of Third Party Services, or (b) 5 days from the date of giving notice of any price increase from a provider of a Third Party Service. All invoices for Fees shall be sent in the manner set forth in the order form or other commercial agreement which incorporates these Reseller Terms by reference. All Fees will be due and payable in accordance with the order form or other commercial agreement which incorporates these Reseller Terms by reference All amounts shall be in invoiced and payable in the designated currency in U.S. Dollars, unless an alternative amount is set forth in the order form or other commercial agreement which incorporates these Reseller Terms by reference.

Section 6. Intentionally Blank.

Section 7. IP Rights. 

As between Mono and Company, Mono owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Solutions.  Company acknowledges such ownership and will not take any action to jeopardize, limit or interfere in any manner with Mono’s rights with respect to the Solutions. Where open source software is used as part of the Solutions, use of the software by the Company shall be subject to the terms of open source licences. Notwithstanding the Company’s statutory rights, no right to modify, adapt, or translate the Solutions, create derivative works from the Solutions, obtain source code for the software comprised within the Solutions or any right to decompile, disassemble or reverse engineer the software comprised within the Solutions, is granted to the Customer. Use of the Solutions for any purpose not set forth in these Reseller Terms is prohibited. If Company provides or submits any suggestions, feedback, comments, ideas, or other information relating to the Solutions and/or modifications or enhancements thereto (the “Company Input”), it will be deemed to have been provided on a non-confidential basis and Company hereby grants Mono a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Company Input (directly or through third parties) in any manner without compensation or liability to Company for any purpose whatsoever. The Company grants Mono the perpetual right to use aggregated, anonymised data derived from the Company or its users, including its Customers, use of the Solutions which does not include any personal data or Company Confidential Information (“Statistical Data”) and nothing in these Reseller Terms shall be construed as prohibiting Mono from using the Statistical Data for business and/or operating purposes, provided that Mono does not share with any third party Statistical Data which reveals the identity of the Company or its users, or Company’s Confidential Information. Company owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to Company Data (as defined in the DPA available at https://www.monosolutions.com/data-processing-agreement)) and shall have thesole responsibility for the legality, reliability, integrity, accuracy and quality of Company Data. The Company grants Mono a non-exclusive, licence to use Company Data, for the Term to the extent required for the provision of the Solutions.

Section 8. Confidentiality.

(a) “ConfidentialInformation” means any information disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”), directly or indirectly, in any manner that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, in the case of Mono, the Solutions. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of these Reseller Terms by the Recipient; (b) is or was known by the Recipient at or before the time such information was received from the Discloser; (c) is received from a third-party that is not under an obligation of confidentiality to the knowledge of the Recipient; (d) is independently developed by the Recipient without any breach of these Reseller Terms; or (e) is approved for release in advance in writing by the Discloser.

(b) Each Party agrees: (i) to protect and safeguard the other Party’s Confidential Information against unauthorized use, publication or disclosure with the same degree of care that it uses to protect the confidentiality of its own Confidential Information and not less than reasonable care; (ii) to restrict access to the other Party’s Confidential Information to those of its officers, directors, employees, and representatives who have confidentiality obligations that afford the Confidential Information a substantially similar level of protection as is afforded by these Reseller Terms; and (iii) not to use, or permit others to use, the other Party’s Confidential Information except as is reasonably necessary to perform its obligations or exercise its rights under these Reseller Terms. Company is specifically prohibited from demonstrating the Solutions to any direct or indirect competitor of Mono. Each Party shall return or destroy all Confidential Information of the other Party upon the termination or expiration of these Reseller Terms or upon the request of the other Party; provided, however, neither Party shall be required to return or destroy information or materials that it must retain during or after termination or expiration of these Reseller Terms in order to receive the benefits of these Reseller Terms, properly perform in accordance with these Reseller Terms, or to comply with a valid law, regulation, or court or administrative order. The Parties agree that the terms and conditions, but not the existence and general nature, of these Reseller Terms shall be treated as Confidential Information of Mono. 

(c) Notwithstanding any other provision of these Reseller Terms, each Party may disclose Confidential Information of the other Party if such disclosure is required by an order of a court or other governmental authority, law or regulation, but only to the extent such disclosure is necessary and after notice to the other Party if legally permitted, provided that Mono reserves the right to provide any information available to it pursuant to these Reseller Terms to the extent it deems it necessary and/or appropriate to comply with applicable legal requirements, as determined by it in its sole discretion. In such case, the Party required to make the disclosure shall, at the other Party’s expense, assist the other Party in obtaining a protective order or otherwise minimize and limit the breadth and scope of such disclosure.

(d) Each Party understands and acknowledges that any disclosure or misappropriation of any of the disclosing Party’s Confidential Information in violation of the Agreement may cause the disclosing Party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as the disclosing party shall deem appropriate, in addition to other remedies available to such Party.

Section 9. Term and Termination.

(a) These Reseller Terms shall commence on the Effective Date and continue until the date set forth in the order form or other commercial agreement which incorporates these Reseller Terms by reference. Additionally, these Reseller Terms may be terminated upon written notice as follows: (i) by either Party if the other party breaches any material provision of the Agreement and fails to cure such breach within 30 days after receipt of written notice of such breach, provided that no opportunity to cure shall be available with respect to breaches by Company of Sections 2 or 7; (ii) by Mono if Company breaches its payment obligations and fails to cure such breach within 10 days after receipt of written notice; (iii) by either Party if the other party becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy or seeking reorganization, has a receiver appointed, or institutes any proceedings for liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such Party shall only be in breach if such petition or proceeding has not been dismissed within 90 days; or (iv) by Company, with respect to a specific Customer, upon 30 days prior written notice prior to the renewal of an annually-billed term of a Customer’s subscription for Solutions, and 14 days prior written notice prior to the renewal of a monthly-billed term. Any failure to timely terminate a Customer’s subscription for Solutions shall result in the automatic renewal of such subscription for the next applicable subscription period. Mono reserves the right to suspend the provision of the Solutions without notice to Company in the event of a violation of these Reseller Terms in lieu of termination.

(b) Upon termination or expiration of these Reseller Terms, all access to the Solutions shall immediately cease, except as provided below. In the event of termination, except as a result of Mono’s fault, Company shall not be entitled to a refund or credit of any of the undisputed Fees, and Mono will promptly issue an invoice for any additional Fees payable with respect to the remainder of the Term, without reduction. Notwithstanding the termination of the Agreement, except in the case of a termination by Mono pursuant to Section 6(a)(i) or (ii), Mono shall continue to provide the Solutions solely in support of Customers existing prior to the date of termination, including any renewals thereof for up to 24 months following the date of termination of the Agreement, subject to Company’s continued compliance with the terms of these Reseller Terms, provided that all post-termination rates charged to Company for such Customers shall be immediately increased to Mono’s then-current rates applicable to its clients and customers generally. At the request of the Company, Mono shall delete or make available Company Data (as defined in the DPA) to the Company in accordance with the terms of Data Protection Laws.

(c) Sections 2, 4, 5, 7, 9, (c), 10(d), and 11-14, as well as any other terms hereof that would reasonably be deemed as intended to so survive, shall survive any termination or expiration of the Agreement. No termination hereunder shall constitute a waiver of any rights or causes of action that either Party may have based upon events occurring prior to the termination date.

Section 10. Warranties.

(a) Each Party represents, warrants, and covenants that: (i) it has the power to enter into and perform the Agreement; (ii) the execution of these Reseller Terms has been duly authorized by all necessary corporate action of such Party; (iii) these Reseller Terms constitutes a valid and binding obligation on such Party, enforceable in accordance with its terms; (iv) no consent or approval of any other person or governmental authority is necessary for the Agreement to be effective; (v) neither the execution or delivery of the Agreement nor the consummation of the transactions contemplated by it would constitute a default or violation of such Party’s charter documents and/or other agreements; and (vi) it will comply with all applicable laws in the performance of its obligations under the Agreement.

(b) Mono represents that the Solutions do not and will not violate or infringe upon the Intellectual Property Rights of any third party, and that the Solutions do not include any content or functionality or any programming devices (e.g., viruses, key locks, etc.) that would permit Mono personnel or other third parties to access any of Company’s equipment connected to the Solution without Company’s authorization. Mono shall: (i) implement reasonable and appropriate technical and organizational measures designed to protect Company’s systems and data from and against any accidental or unlawful destruction or any accidental loss, alteration, unauthorized disclosure, use or access as set out in the DPA; and (ii) only process Personal Data (as defined in the “DPA” – which means , if applicable, a data processing agreement separately entered into by the parties if an amendment to these Reseller Terms is executed governing the processing of Personal Data of EU data subjects. If entered into, the term of the DPA shall be operative as of execution thereof by both Parties and shall terminate automatically together with termination or expiry of the Agreement) of the Company in accordance with Company’s instructions. Mono will provide levels of security set out in the Security Policy (as updated from time to time) available at https://www.monosolutions.com/security-settings, for all Solutions provided by Mono hereunder and networks being utilized by Mono in connection with the provision of the Solutions.

(c) Company represents that any materials, including Company Data related to consumers, provided to Mono or used in connection with the use of the Solutions will not infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy or violate any law, statute or regulation. Company further represents and warrants that: (i) it fully discloses and receives the requisite consent of any third party from which it collects data, including without limitation, Personal Data, supplied to Mono or processed (whether by Company or Mono) using the Solutions; (ii) such Personal Data has been collected in compliance with all applicable laws, rules and regulations, including without limitation the Data Protection Laws (meaning any law relating to the processing, privacy, and use of Personal Data, as applicable to Mono, Company, its Customers, and the Solutions, including, without limitation (a) any applicable laws, rules, and regulations, including, without limitation, industry self-regulations; (b) ePrivacy laws; and (c) the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and/or any corresponding or equivalent national laws and all relevant member state laws giving effect to or corresponding with any of them but only applicable and only upon execution by the parties of an amendment with respect to the processing of Personal Data of EU data subjects.), and any applicable privacy policy; (iii) Company has posted privacy policies and complies in all respects with such posted privacy policies, which privacy policies make full disclosure of and receive all necessary consents with respect to all uses of the Personal Data for which Company intends to use the Personal Data in connection with its use of the Solutions; and (iv) any Personal Data and/or materials used by Company in connection with the use of the Solutions, do not: (1) contain any viruses, worms, Trojan horses, time bombs or other harmful components; (2) promote, constitute, or encourage illegal activities, give rise to liability, or contain any content in any manner that might be pornographic, libellous, defamatory, hateful, profane, abusive, obscene, or threatening; (3) discriminate against any person on the basis of race, sex, religion, nationality, disability, sexual orientation or age; and (4) engage in deceptive practices.

(d) EXCEPT AS EXPRESSLY STATED IN THESE RESELLER TERMS, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MONO DOES NOT WARRANT THAT THE SOLUTIONS WILL: (i) BE UNINTERRUPTED; (ii) BE FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; (iii) MEET COMPANY’S REQUIREMENTS; OR (iv) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE COMPANY USES. COMPANY’S USE OF THE SOLUTIONS IS SOLELY AT

COMPANY’S RISK. Company's exclusive remedy (and Mono’s sole obligation) for violation of its warranties set forth in these Reseller Terms shall be for Mono to promptly replace the defective portions of the Solutions; provided that if Mono is unable to replace the same within 90 days of notification by Company of a breach, Company's sole remedy is to terminate the Agreement, at which time Mono will refund an equitable portion of any fees paid in advance and not used by Company.

Section 11. Limitations of Liabilities.

EXCEPT FOR COMPANY’SPAYMENT OBLIGATIONS PURSUANT TO SECTION 5, BREACHES OF SECTIONS 2, 7, AND 8 HEREOF, THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12 AND ANY LIABILITIES THAT CANNOT LAWFULLY BE LIMITED: (a) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO loss of use, LOSS OF BUSINESS REVENUE, LOSSES ARISING FROM interruption of business, LOST PROFITS WHETHER categorised as direct or indirect OR LOSS OF GOODWILL, LOSSES WHETHER OR NOT OCCURRING IN THE NORMAL COURSE OF BUSINESS, COSTS OF PROCURING SUBSTITUTE GOODS OR products, wasted management or staff time) ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THESE RESELLER TERMS, WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, and (b) IN NO EVENT WILL either party’s LIABILITY UNDER THESE RESELLER TERMS EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO Mono IN THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION RELATING TO SUCH LIABILITY AROSE. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT INCREASE THE FOREGOING LIMIT. NOTHING IN THIS Section 11 WILL BE CONSTRUED TO LIMIT EITHER PARTY’s OBLIGATION TO INDEMNIFY THE OTHER PARTY PURSUANT TO SECTION 12 FOR DAMAGES AWARDED TO A THIRD PARTY EVEN IF SUCH DAMAGES ARE CHARACTERIZED AS INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES SUFFERED BY THAT THIRD PARTY, EXCEPT THAT MONO’S TOTAL LIABILITY SHALL BE LIMITED TO USD 1,000,000 in all circumstances. Notwithstanding anything to the contrary set forth herein, Mono shall have no liability with respect to BREACH, performance shortfalls, late performance, or non-performance of any third party services. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 11 IS AN ESSENTIAL ELEMENT OF THESE RESELLER TERMS AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THESE RESELLER TERMS WOULD BE SUBSTANTIALLY DIFFERENT. NOTWITHSTANDING THE LIMITS OF LIABILITY SET FORTH ABOVE IN THIS SECTION 11, MONO’S LIABILITY WITH RESPECT TO INDIVIDUAL CUSTOMER CLAIMS SHALL BE LIMITED TO THE CHARGES ACTUALLY PAID BY COMPANY TO MONO FOR SUCH CUSTOMER DURING THE PRECEDING 6 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH CLAIM(S).

Company shall be liable to Mono for any breaches of these Reseller Terms caused by acts, omissions or negligence of any Designated Users who access the Solutions as if such acts, omissions or negligence had been committed by the Company itself, INCLUDING ITS CUSTOMERS.

Section 12. Indemnification.

(a) Company shall indemnify and hold Mono and its Affiliates, and their employees, representatives, agents, directors, officers, managers and members (the “Mono Indemnified Parties”) harmless, and at Mono’s option defend the Mono Indemnified Parties, from and against any damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) (collectively “Losses”) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Mono Indemnified Parties arising out of: (i) Company’s use of the Solutions other than in accordance with these Reseller Terms, and applicable law; (ii) any alleged breach by Company and/or a Designated User of any provision of these Reseller Terms; or (iii) any breach by a Customer of the EULA Requirements or any Third Party Service Terms; or (iv) any breach of the Company’s obligations under Data Protection Laws. For clarity, a claim from a Customer shall be deemed a claim from a third party.

(b) Mono shall indemnify and hold Company and its Affiliates, and their employees, representatives, agents, directors, officers, managers, members and/or shareholders (the “Company Indemnified Parties”) harmless, and at Mono’s option defend the Company Indemnified Parties, from and against any Losses incurred in connection with any Claim brought against any of the Company Indemnified Parties arising out of: (i) any breach of Mono’s obligations under the DPA or applicable Data Protection Laws; or (ii) any allegation that the Solutions violate or infringe upon the Intellectual Property Rights of any third party. Mono shall have exclusive control of the defence of any such Claim. If any of the Solutions become, or in Mono’s opinion is likely to become, the subject of an infringement claim under the Agreement, Mono may, at its sole option and expense, either: (1) procure for Company the right to continue using the applicable Solutions; (2) replace or modify the applicable Solutions so that it becomes non-infringing; or (3) solely if clauses (1) and (2) are not commercially viable, terminate these Reseller Terms. Notwithstanding the foregoing, Mono will have no obligation with respect to any infringement claim based upon: (1) any use of the Solutions not in accordance with the Agreement; (2) any use of the Solutions in combination with other products, equipment, or software not supplied by Mono, where such combination gives rise to the Claim; (3) any modification of the Solutions by any person other than Mono or its authorized agents, or by Mono or its authorized agents or subcontractors in compliance with the instructions of Company; (4) continued infringing activity by Company after Company has been provided with an alternative Solution that substantially complies with the terms of the applicable Solution description; or (5) any Claim based on open source software or the use thereof in connection with these Reseller Terms. THIS SECTION STATES MONO’S ENTIRE LIABILITY AND COMPANY’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS AND ACTIONS.

(c) Should any claim subject to indemnity be made against a Party hereto, the Party against whom the Claim is made agrees to provide the other Party with prompt written notice of the Claim. The indemnified Party agrees to cooperate with the indemnifying Party and provide reasonable assistance in the defence and settlement of such Claim. The indemnifying Party is not responsible for any costs incurred or compromise made by the indemnified Party unless the indemnifying Party has given prior written consent to the cost or compromise. If a conflict of interest arises between the indemnitor and the indemnitee for the types of claims set forth herein, and the indemnitee under the appropriate section sends a written notice of such conflict of interest to the indemnitor, then the indemnitor under that section shall provide for the indemnification of the indemnitee for: (i) the cost to hire and retain separate counsel; and (ii) the cost of investigation, litigation and/or settlement of such Claims.

Section 13. Data Protection.

To the extent that Personal Data is processed by Mono or any of its contractors or by Company or any of its contractors, including Designated Users in connection with the use of the Solution pursuant to these Reseller Terms: (a) each Party undertakes to comply with its obligations under relevant applicable Data Protection Laws, as well as any applicable data security industry principles, standards and agreements and if applicable, the DPA https://www.monosolutions.com/data-processing-agreement; (b) to the extent that Personal Data is processed when the Company uses the Solution, the Parties acknowledge that Mono is a data processor and the Company is a data controller and the Parties shall comply with their respective statutory data protection obligations under applicable Data Protection Laws; (c) where Mono collects and processes Personal Data of the Company, as a data controller, when providing the Solutions to the Company, such collection and processing shall be pursuant to Mono’s Privacy Policy available at www.monosolutions.com/privacy-policy; and (d) where Company collects and processes Personal Data when acting as a data controller such collection and processing shall be pursuant to the Company’s privacy policy.

Section 14. General.

The relationship of the Parties established by these Reseller Terms is that of independent contractors, and nothing contained herein will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the Parties. These Reseller Terms shall be governed by and construed in accordance with the laws of Delaware. Any dispute under these Reseller Terms shall be subject to the sole jurisdiction of, and venue in, the courts of Denver, Colorado. These Reseller Terms may not be assigned, in whole or in part, by Company without the prior written consent of Mono. Mono shall have the right to assign or otherwise transfer the Agreement or any of its rights or obligations thereunder. Any purported assignment, except as permitted herein, shall be null and void. The Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. The prevailing Party in any legal action brought pursuant to these Reseller Terms, or the non-dismissing Party in the event of a voluntary dismissal by the Party instituting the action, will be entitled to reimbursement from the other Party for the full amount of all reasonable expenses, including all costs, fees and actual attorneys’ fees paid or incurred in good faith. During the Term and 12 months thereafter, Company shall not, directly or indirectly, in any manner solicit or induce for employment any Mono employee. If the application of any provision of these Reseller Terms to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then: (a) the validity of other provisions of these Reseller Terms will not in any way be affected thereby; and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and amended without further action by the Parties to the extent necessary to make such provision valid and enforceable. A waiver of a Party’s breach of these Reseller Terms will not operate as a waiver of that Party’s prior, concurrent or subsequent breach. Neither Party will be deemed in default of the Agreement to the extent that such performance (other than payment obligations) are delayed or prevented by reason of any cause beyond the reasonable control of a Party, including but not limited to an act of God fire, storm, flood, earthquake, explosion, natural disaster, accident, riots, acts of government, acts of war/terrorism, sabotage, epidemic, quarantine restriction, DDOS attacks, shortage of materials, power or supplies, labour dispute or threat thereof, civil disturbance or commotion, failure of transportation, power or communications, or of suppliers of goods or services (each of the foregoing, a “Force Majeure event”). Notices to be provided to a Party hereunder will be given in writing by mail (effective 3 days after mailing or one (1) day in the case of overnight mail), or e-mail (noticed deemed effective upon receipt of a return e-mail, other than an auto-generated return e-mail), addressed to such Party (as above for Mono, as set forth in the order form or other commercial agreement which incorporates these Reseller Terms by reference for Company). These Reseller Terms and the order form or other commercial agreement which incorporates these Reseller Terms by reference constitutes the entire agreement between the Parties with respect to the subject matter hereof, and these Reseller Terms supersedes all prior agreements, representations, negotiations and discussions oral or written, regarding such subject matter. In the event of any conflict between these Reseller Terms and links provided herein, these Reseller Terms shall control. Amendments to these Reseller Terms must be made in writing and signed by both Parties, notwithstanding the aforesaid, Mono may change or modify the terms of these Reseller Terms in order to comply with a change in applicable law, upon giving the Company 30 days’ notice in writing. All changes shall be deemed to have been accepted by the Company unless the Company terminates the Agreement prior to the expiry of the 30 day period. Except for Vendasta, which shall be deemed a third party beneficiary of all of Mono’s rights under these Reseller Terms, there are no third party beneficiaries to these Reseller Terms and no rights in these Reseller Terms are enforceable by a third party. The headings to the sections of these Reseller Terms are used for convenience only. Company hereby grants to Mono a non-transferable, non-exclusive, non-sublicensable, royalty-free, license to use and display those trade names, trademarks, service marks, and logos (collectively, “Marks”) of the Company in fulfilment of its obligations under these Reseller Terms and in other promotional materials for Mono’s business and services.