This Monarx software license agreement (this “Agreement”) is, upon its acceptance by Monarx, a legal agreement between Monarx, Inc. (“Monarx”) and the business or governmental entity that you are signing this agreement on behalf of (such business or governmental entity, “Customer”) as the licensee of the Monarx proprietary automated security operations platform provided as an on-premise software solution which includes the object code version of the computer software (the “Software”), web application and Monarx APIs and API specifications, and may include associated media, printed materials, included any user guides or other data (the “Documentation” and collectively, the “Service”). The Service also includes any updates or upgrades to or new versions of the original Software and/or Documentation contained in the Service, if and when made available to Customer by Monarx.
1.1 Access to Solution. Subject to the terms and conditions of this Agreement, Monarx will provide Customer with the ability to access and use the Service. Customer’s rights to access and use the Service are non-exclusive, non-transferable, and solely for Customer’s internal evaluation purposes.
1.2 Trial Period. Customer may use the Service in accordance with this Agreement for a period of 30 days, beginning upon Monarx’s delivery of access to the Service to Customer (the “Trial Period”). If Customer wishes to extend the Trial Period beyond 30 days, Customer may provide notice to Monarx, and Monarx may in its discretion consent to extend the Trial Period.
1.3 Use Beyond the Trial Period. Customer and Monarx agree that any use of the Service beyond the end of the Trial Period, as the same may be extended by Monarx pursuant to Section 1.2, shall (i) be pursuant to and subject to the terms and conditions of Monarx’s End User License Agreement located at [https://support.monarx.com/en/articles/5684017-eula] which is hereby incorporated by reference into this Agreement; and (ii) require the Customer to pay such fees for the Service as Monarx shall provide to Customer at least seven days prior to the commencement of any service period or, absent such notice for any service period or periods, the fees for the Service as listed on Monarx’s website as the same may be updated from time to time. Monarx shall invoice and Customer agrees to pay within thirty days of receipt of each such invoice, the fees for any use of the Services beyond the Trial Period.
1.4 Restrictions. Customer shall not, and shall not permit any of its employee and other authorized users or third parties to: (i) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from any encrypted or encoded portion of the Software, in whole or in part, nor use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Software or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), (ii) sell, sublicense, rent, lease, distribute, market, or commercialize the Service or any part thereof including the Software for any purpose, including timesharing or service bureau purposes, (iii) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Services and the Software, (iv) remove any product identification, proprietary, copyright or other notices contained in the Service including in the Software, (v) modify or create a derivative work of any encrypted or encoded portion of the Service including the Software, or any other portion of the Software, (vi) use the Services for any purpose other than their intended use to protect Customer’s hosted websites and related infrastructure or to evaluate the Services for such use by Customer and in connection with Customer’s internal business purposes; (vii) use the Services for the purpose of developing any competitive service, product or software or otherwise competing with the Services or for any evaluation of the capabilities or performance of the Services (other than in connection with customer’s evaluation of the Services for use by customer for their intended use and in connection with the customer’s internal business purposes) or for any unlawful purpose; (viii) use in any manner other than in connection with Customer’s evaluation of the Services for use by Customer for their intended use and in connection with the customer’s internal business purposes or publicly disseminate the capabilities of the Services not generally publicly available or performance information or analysis of the Services including, without limitation benchmarking test results, or (ix) otherwise use, or permit any person or entity to use, the Solution, the Software or Documentation other than as provided herein.
1.5 Ownership. Monarx retains all right, title and interest in and to the Service, the Software and the Documentation, including all intellectual property rights therein and thereto. Customer acknowledges that this Agreement is not a sale and does not transfer to Customer title or ownership of the Service, the Software, the Documentation or any part thereof, but only provides for limited use for evaluation purposes as contemplated herein. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO MONARX.
2. FEES AND EXPENSES.
Except as provided in Section 1.2 herein, subject to Customer’s compliance with the terms and conditions of this Agreement, and solely during the Trial Period, the Service shall be provided to Customer free of charge and each Party shall bear its own expenses in connection with the performance of this Agreement.
3. CUSTOMER CONTENT.
3.1 Customer Content and Usage Data. As between the Parties, Customer retains ownership of any content Customer uploads to the Service in connection with Customer’s use of the Service (collectively, “Customer Content”). Customer hereby grants to Monarx a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to (i) use, reproduce, reformat, display, perform and distribute Customer Content solely to provide the Solution to the Customer; and (ii) use any Customer Content and any non-personally identifiable information related to Customer’s use of the Service (“Usage Data”), in aggregate, de-identified for Monarx’s business purposes.
3.2 Customer Content Representations and Warranties. Monarx disclaims all liability in connection with Customer Content. Customer is solely responsible for all Customer Content and the consequences of uploading, submitting, publishing, distributing, using or otherwise sharing Customer Content. Customer affirms, represents, and warrants that: (i) Customer is the creator and owner of the Customer Content, or has the necessary licenses and other rights and permissions to authorize Company to exercise the licenses granted by Customer in this Section, in the manner contemplated by Company, the Solution, and this Agreement; and (ii) all Customer Content, and the use and distribution of Customer Content as contemplated by this Agreement, does and will not: (A) infringe, violate, or misappropriate any third party right; (B) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (C) cause Company to violate any law or regulation.
4. TERM AND TERMINATION.
This Agreement will commence as of the Effective Date and, unless earlier terminated, will remain in full force and effect until the expiration of the Trial Period. Either Party may terminate this Agreement immediately for any reason or no reason, by giving ten days’ prior written notice to the other Party. Upon expiration or termination of this Agreement for any reason: (i) the rights granted to Customer hereunder will immediately terminate; (ii) Customer shall immediately discontinue any use of the Solution and Documentation, and shall return or destroy all Documentation under its control; (iii) upon the disclosing Party’s request, each Party shall promptly return or destroy all Confidential Information of the other Party in its possession or control; and (iv) Sections 1.2, 1.4, 3, 4, 5, 6, and 7 will survive.
5.1 Confidential Information. As used herein, “Confidential Information” means any information disclosed by one Party to the other Party in connection with this Agreement that is (i) in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; (ii) orally disclosed, provided that such information is designated as confidential at the time of its initial disclosure and reduced to a written summary by the disclosing Party that is marked in a manner to indicate its confidential nature and delivered to the other Party within 30 days after its initial disclosure; or (iii) otherwise reasonably expected to be treated in a confidential manner based on the circumstances of disclosure or by the nature of the information itself.
5.2 Exceptions. Confidential Information shall not, however, include any information that: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by the disclosing Party to the receiving Party; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure by the disclosing Party to the receiving Party through no wrongful action or inaction of the receiving Party; (iii) is in the rightful possession of the receiving Party without confidentiality obligations at the time of disclosure by the disclosing Party to the receiving Party as shown by the receiving Party’s then-contemporaneous written files and records kept in the ordinary course of business; (iv) is obtained by the receiving Party from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development; provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception.
5.3 Non-Use and Non-Disclosure. Each Party agrees: (i) to use Confidential Information of the other Party solely in connection with Customer’s evaluation of the Solution in accordance with the provisions of this Agreement; and (ii) not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information of the other Party to any third party without the other Party’s prior written consent, except that each Party may disclose the other Party’s Confidential Information to its employees and contractors who have a reasonable need to know such Confidential Information in connection with Customer’s evaluation of the Solution in accordance with the provisions of this Agreement and who are bound by contractual, legal or fiduciary obligations of confidentiality at least as stringent as those set forth herein. Each Party shall safeguard the Confidential Information of the other Party using the same measures it uses to protect its own Confidential Information, but in no event shall either Party use less than reasonable care in safeguarding the Confidential Information of the other Party. Notwithstanding the foregoing, if a Party becomes legally compelled to disclose any Confidential Information of the other Party pursuant to an order or judgment of any court or governmental body, or as required by applicable law, the compelled Party will provide the other Party prompt written notice, if legally permissible, and will assist the other Party in seeking a protective order or another appropriate remedy. If the other Party fails to obtain a protective order or other appropriate remedy, the compelled Party will furnish only that portion of the other Party’s Confidential Information that it is legally compelled to disclose; provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
5.4 Use of Service. Customer is responsible for maintaining the secrecy of any passwords or codes that provide access to the Service as the Confidential Information of Monarx, and for all activities that occur under Customer’s account(s) on the Service.
5.5 Remedy. If either Party breaches, or threatens to breach the provisions of this Section 5, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
6. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY.
6.1 WARRANTY DISCLAIMER. THE SERVICE, THE SOFTWARE AND THE DOCUMENTATION IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. MONARX MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE, THE SOFTWARE OR THE DOCUMENTATION, INCLUDING THEIR CONDITION OR CONFORMITY TO ANY SPECIFICATIONS OR DESCRIPTION, AND MONARX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
6.2 LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF SECTIONS 1.2, 1.4 OR 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE, OR DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF SECTION 5, IN NO EVENT SHALL MONARX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS (US$500), WHETHER AN ACTION IN CONTRACT, TORT, OR OTHERWISE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
7. GENERAL PROVISIONS
7.1 Assignment. This Agreement may not be transferred or assigned by Customer without the prior written consent of Monarx. For purposes of this Section, a sale of assets or stock, merger or other reorganization or change of control shall constitute an assignment. Any purported transfer or assignment in violation of this Section 7.1 shall be null and void. Company may freely assign this Agreement without Customer’s prior written consent. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
7.2 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Utah, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Utah, and both Parties irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts located in Salt Lake City, Utah. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
7.3 Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed email, (ii) on the date it was delivered by courier, or (iii) if by certified mail, return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatory of this Agreement or to such other address or individual as the Parties may specify from time to time by written notice to the other Party.
7.4 Miscellaneous. The parties are independent contractors. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Neither Party shall be liable for any delay or failure in performance due to acts of God, earthquakes, shortages of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics, and similar occurrences beyond its control. This Agreement, together with any attachments, constitutes the complete agreement between the Parties, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter herein. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement. For all purposes of this Agreement, the words “including” and “include” mean inclusion without limitation.
By clicking to “agree” below, you agree, represent and warrant that you are a natural person signatory to this agreement, are an employee, officer or agent of Customer and are authorized to enter into this Agreement on behalf of Customer and to bind Customer to the terms and conditions of this Agreement. If you do not have such authority, Monarx is unwilling to and does not license the Service to Customer and Customer may not complete the installation process, access or otherwise use the Service and shall immediately return any and all tangible components of the Software and the Service to Monarx and cease any use of the Software and the Service. Notwithstanding this Agreement, if Customer has an existing license agreement with Monarx, the terms and conditions of such existing license agreement shall control.
This Agreement remains subject to review, approval and acceptance by Monarx in its sole discretion and shall not become an effective agreement or be binding upon Monarx until such acceptance. Monarx may reject this Agreement and Customer for any or no reason in its sole discretion.