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III. Entire Agreement; Amendments. This MSA replaces and supersedes all prior and contemporaneous proposals, understandings and agreements, written, electronic or oral, as well as all other communications between Company and Monsoon concerning the subject matter of this MSA. To the extent any proposal, invoice, acknowledgement, confirmation or any other document issued by Company after the Effective Date (defined as the date the software was purchased) contains any terms that are inconsistent with, in additional to, or different from, those in this Agreement, the terms of this MSA will control unless (a) that document expressly references the section of this Agreement to be amended; and (b) a duly authorized representative of each party signs that document.
THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION, MODIFICATION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
STANDARD TERMS AND CONDITIONS
1.1 Grant of License. Subject to Company’s compliance with the terms of this Agreement, including payment of the fees and costs described in Section 1.4, in Section 2 and in Section 3 below (collectively, the “Charges”), Monsoon grants to Company, a limited, nonexclusive, nontransferable license (the “License”) for the Term described in Section 1.4 and the Order Form to: (a) install and use the Application Software on the number of workstations designated in the Order Form (the “Authorized Work Station(s)”) to sell products on or through all sales channels that Monsoon supports (the “Marketplace Platforms”); (b) install and use the Server Software on one or more local area network(s) or LAN server(s) (the “Authorized Server(s)”) to access the Monsoon Web Services; and (c) make one archival copy of the Application Software and Server Software (collectively, the “Software”) and related documentation (the “Documentation”) in connection with Company’s normal backup procedures.
1.2 Restrictions. Company will not at any time: (a) use the Technology or the Documentation except for the purpose described in Section 1.1 above and in accordance with all training and instructions; (b) install or use the Application Software on any computer other than an Authorized Work Station; (c) install or use the Server Software on any wide area network or WAN server or on any local area network or LAN server other than the Authorized Server; (d) access the Monsoon Web Services from any server other than the Authorized Server; (e) allow any person other than its trained employees primarily based at the Location (the “Authorized Users”) to access or use the Technology or the Documentation; (f) copy, modify, adapt, translate or create derivative works of the Technology or the Documentation or permit any other person to do so; (g) reverse engineer, disassemble, decompile or otherwise attempt to derive the source code for the Technology or permit any other person to do so; (h) rent, lease, loan, distribute, resell, sublicense or transfer the Technology or the Documentation or use the Technology to provide services to or for any unrelated third party; or (i) infringe any third party rights, including privacy, confidentiality and/or other intellectual property rights.
1.3 Disabling Code. Company acknowledges that the Technology includes “disabling code” that if activated by Monsoon will prevent the Technology from operating normally. The purpose of the disabling code is to limit Company’s ability to use the Technology after the License terminates or is suspended under Section 1.4 or Section 2.7 below.
1.4 Term and Termination of the License. The License will begin on the Effective Date and will continue until the first of the following to occur (the “Term”): (a) Monsoon may terminate the License at its sole discretion (i) immediately if Company fails to pay any Charges or breaches Section 1.2, Section 5.3, Section 5.6 or Section 7 of this Agreement; (ii) if Company fails to cure a breach of any other provision of this Agreement or the support terms described in Section 3 and the Order Form within 10 days after Monsoon gives Company written notice of that breach (and upon the cure of any breach described in subsections (a)(i) or (ii) above, Monsoon may, at its sole discretion, reinstate the License upon payment of a reinstatement fee of $500.00); (iii) if the Software cannot be installed on the Authorized Work Stations and/or the Authorized Server; and/or (iv) for any reason by giving Company 30 days’ prior notice; and (b) Company may terminate the License for any reason at its sole discretion by giving Monsoon 30 days’ prior notice. Immediately upon expiration or earlier termination of the Term for any reason, Company will permanently erase the Software and Documentation, destroy all media on which the Software and Documentation is located and, at Monsoon’s request, submit a signed statement to Monsoon certifying that Company has complied with each of the preceding.
1.5 Ownership. While Company may own the hard drive, diskette(s), CD-Rom(s) or other physical media upon which the Software or Documentation is stored, Company does not own the Technology or the Documentation, and Monsoon and its suppliers retain all rights to the Technology and Documentation except those expressly licensed to Company under this MSA. Monsoon and its licensors own all data in the Monsoon Web Services, and Monsoon will own all other data generated by the Software installed on the Authorized Workstations and the Authorized Server (the “Data”). Monsoon hereby (a) agrees that to the extent the Data contains any confidential information of Company or its customers, it will be subject to Section 7; and (b) grants to Company an irrevocable, perpetual, royalty free, nonexclusive, license to use the Data for Company’s own internal business purposes and to assign that license to any entity that acquires all or substantially all of Company’s assets.
2.1 One-Time Implementation Fees. Company will pay the Implementation Fee described in the Order Form on the Effective Date. The Implementation Fee is fully earned and nonrefundable as of the Effective Date.
2.2 Monthly License Fees. During the Term, Company will pay Monsoon the following license fees (the “License Fees”): (a) the Base Fee set forth in the Order Form; and (b) a fee (the “Transaction Fee”) equal to the amount by which Company’s Eligible Net Receipts exceed the Threshold set forth in the Order Form, multiplied by the Transaction Percentages set forth in the Order Form. The term “Eligible Net Receipts” means the Gross Receipts for the relevant period, less amounts Company actually refunded to customers during the relevant period using the Technology. The term “Gross Receipts” means all compensation payable to Company and any of its affiliates for orders received through the Marketplace Platforms using the Technology, whether in cash or in kind and regardless of the account(s) or form(s) to which the compensation is paid, less any sales taxes collected by the Marketplace Platform. The first Base Fee payment will be due the earlier of first of the month after completion of software installation or the first of the month following the thirtieth day after the Effective Date. Company will bear all credit risks associated with each order; i.e., uncollected amounts are not deducted from Eligible Gross Receipts. The License Fees and the payment terms in effect on the date an order is received will determine the amount payable to Monsoon with respect to that order. All accounting terms used but not defined in this Agreement will be interpreted in accordance with accounting principles generally accepted in the United States of America.
2.3 Marketplace Platform Costs. Company is solely responsible and liable for all marketplace seller fees or other data usage fees incurred using Technology. Monsoon will not be liable for any application program interface or API fees, data usage fees or any other fees imposed by any Marketplace Platform resulting from Company’s use of the Technology (the “Marketplace Platform Costs”), and Company will pay Monsoon each month for any Marketplace Platform Costs imposed on Monsoon for such use. Without in any way limiting the preceding, Company acknowledges that the Technology makes at least one API call for each addition, revision and update to Company’s inventory listing with each Marketplace Platform, that some Marketplace Platforms may charge a fee for each such call, and that Company will be liable for all such fees.
2.4 Processing Costs. In the process of collecting Charges from Company, Monsoon may incur costs such as automated clearing house or ACH fees, domestic and international credit card fees, domestic and international wire transfer fees, foreign exchange fees, overdrawn account fees, fees for exceeding credit card limits and other similar costs (collectively, “Processing Costs”). Company agrees that Monsoon may, at its sole discretion, debit the Designated Account (defined below) for actual Processing Costs if the Processing Costs exceed industry standards or are in Monsoon’s view otherwise unreasonable. Monsoon will automatically charge monthly fees to Customer’s Designated Account on file. In the event that the Charges cannot be successfully applied to your Designated Account, Monsoon will charge the Customer’s credit card on file. Returned check charges of $15.00 will apply to all returned ACH charges. A 2.5% processing fee will apply to charges made to credit cards. A $50 wire transaction fee will apply to payments made by wire.
2.5 Payment Dates. The Charges are payable three business days after Monsoon has sent Customer an invoice, delivered by e-mail. Monsoon will automatically apply the Charges to the Customer’s Designated Account on file.
2.6 Automatic Payment. Company hereby authorizes Monsoon to deduct the Charges from the checking, credit card and/or debit card accounts indicated by Company upon purchase of the software (the “Designated Accounts”). Each Designated Account must be held by a chartered financial institution located in the country of Company’s origin. Once each month Monsoon will submit an invoice and a report regarding the calculation of the Charges to Company by email or regular mail. Unless Company notifies Monsoon within three days after the date Monsoon submits an invoice that Company disputes the amount of that invoice, Monsoon will deduct the amount reflected in that invoice from one or more of the Designated Accounts, and Company will not have any further right to contest those Charges other than for obvious material mathematical errors. If Monsoon discovers a discrepancy or underpayment of any Charges for any prior billing period, Monsoon may submit an invoice and report regarding that discrepancy or underpayment and Monsoon will deduct that underpayment from the Designated Accounts as indicated for other invoices, reverse any credits to any Company bank account, or seek reimbursement from Company by any other lawful means. Monsoon may modify the Charges as indicated in Paragraph II of this MSA. Company will immediately notify Monsoon of any changes to the Designated Accounts. Except for the Processing Costs, there is no fee for registering for automatic processing under this Section.
2.7 Right to Limit Transactions or Suspend License. Monsoon may in its sole discretion limit the number, type or value of the transactions conducted using the Technology. In the event that Charges cannot be successfully obtained by Monsoon when they have become payable, Monsoon reserves the right to suspend or disable Company’s use of some or all components of the Technology.
2.8 Authorizations. Company acknowledges that the Technology is capable of generating reports with respect to the Transaction Fees and other Charges due under this Agreement. Company hereby irrevocably authorizes Monsoon to obtain during the period described in Section 6.1 information from the Technology and the Marketplace Platforms about transactions made by Company and its affiliates using the Technology. Company acknowledges that Monsoon will use that information to, among other things, calculate the Transaction Fee and generate reports. Company will execute any instruments and take all other actions reasonably requested by Monsoon (both during and after the Term) in order to enable Monsoon to exercise the rights described in Section 2.
2.9 Generally. All sums payable under this MSA are payable in United States dollars. None of the Charges includes any sales, use, excise or similar taxes or any export or import tariffs, duties or fees, and Company will be responsible for payment of those taxes, tariffs, duties and fees. Any sums not paid when due will be subject to a late fee of US$25 and will accrue monthly interest equal to one and one-half percent (1.5%) of the past due amount. Company may direct questions regarding charges to Monsoon’s Billing Department at (503) 239-1055.
5.1 Establish Marketplace Platform Accounts. Set up and maintain during the Term the Designated Accounts and accounts with the Marketplace Platforms required to support Company’s sales on those Marketplace Platforms.
5.2 Passwords. Company acknowledges that Monsoon Marketplace stores account names, numbers and passwords for Company’s accounts with each Marketplace Platform through which Company posts items for sale using the Technology, and that this information is visible to Monsoon employees and contractors. If requested, Company will also immediately advise Monsoon of any changes or additions to those account names, numbers and passwords.
5.3 Use. Use the Software with and access the Monsoon Web Services using hardware and other software that conforms to the minimum System Requirements specifications established by Monsoon in the Order Form. Monsoon may amend these specifications at any time in connection with a new release of Software. Only Company’s Authorized Users will use the Technology in accordance with Monsoon’s provided training, instructions, updates and notifications.
5.4 Maintenance. Company agrees to (a) Maintain each Authorized Work Station and the Authorized Server in accordance with the requirements prescribed by their manufacturer; (b) provide Company with communications links and other access to the Authorized Work Stations, the Authorized Server and the Technology; (c) ensure that any other software installed on an Authorized Work Station or the Authorized Server is compatible with the Software; (d) allow Monsoon to enter Company’s premises and/or facilitate Monsoon’s remote access to Company’s Authorized Work Station(s) and Authorized Server(s) to: (i) inspect Company’s compliance with the terms of this MSA as more specifically described in Section 6 below; and (ii) work on the Authorized Work Station(s), the Authorized Server(s) and the Technology; and (e) use security measures, regularly back up all of its data and engage in business continuity, disaster recovery and other measures to protect Company’s important information as are standard in the software industry. Company is solely responsible for all data backup and data protection and company shall assume all responsibility for creating a data backup and protection strategy.
5.5 Responsibilities. Company is solely responsible and liable for any lost revenues or profits, downtime, loss of information, sales slowdowns or losses, loss due to Technology integration into third party software and marketplaces, loss due to pricing errors, cost errors, inventory problems including surplus or shortages, loss due to inaccurate product descriptions or supplier management problems incurred using the Technology, including those losses occurring during the launch and transition process. Many issues may affect Company’s successful launch of the Technology, including Company’s willingness to read and apply the Documentation and to use the Technology in accordance with all training, instructions, updates and notifications, the speed of upload at various Marketplace Platforms, and user errors resulting from unfamiliarity with the Technology. Company is responsible for monitoring results when using the Technology and taking an active role in working with Monsoon to correct any errors.
Company is solely responsible and liable for all listing data management, manipulation, updates and transformation. If Monsoon performs any role in data management, the resulting data information will be submitted to Company for review and approval. Subsequent to Company approval, Monsoon shall not be liable for any errors, data loss, loss of business or other problems that may result.
Company is solely responsible and liable for any and all data loss, errors, and loss of business or other problems that may result from:
5.6 Disputes. Company shall resolve any and all disputes regarding merchandise or any other matter directly with its customers, third parties or the Marketplace Platforms, and not involve Monsoon in any such disputes. Company shall indemnify, defend and hold Monsoon harmless from any loss it incurs in connection with any such disputes, including but not limited to Technology integration into third party software and marketplaces, pricing errors, cost errors, inventory problems including surplus or shortages, inaccurate product descriptions, and supplier management problems.
5.7 Applicable Law and Marketplace Platform and ISP Rules. Comply with applicable law, Marketplace Platform rules, including rules regarding U.S. and international pricing, Internet service provider rules, professional standards and all other laws, regulations, standards and contracts to or by which Company is bound, including but not limited to consumer protection laws and regulations.
6.1 Obligation to Maintain Records. Company will, during the Term and for a period of at least three years following the termination of this Agreement for any reason, maintain complete and accurate records relating to its Gross Receipts, Eligible Net Receipts and the Charges. Company agrees to provide copies of these records to Monsoon within 30-days after written request by Monsoon. Failure to provide appropriate documentation in a timely fashion will constitute a breach of this Agreement.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Technology) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure.
The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Technology and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed.
Monsoon has strict privacy policies that protect the confidentiality of the Company and its customers. Company agrees to abide by the terms of the Monsoon Privacy Policy posted on https://monsooninc.com/privacy-policy/.
9.1 By Monsoon. Monsoon will indemnify, defend and hold Company harmless from any suit brought by an unrelated third party against Company and will pay all damages finally awarded in that suit insofar as they are based on a claim that the Technology or the Documentation as provided by Monsoon to Company infringes a United States copyright, but only if (a) Company promptly notifies Monsoon of that claim (except that failure to promptly notify Monsoon of a claim will not limit, impair or otherwise affect Company’s rights under this Section unless Monsoon is prejudiced by that failure and then only to the extent of the prejudice); and (b) Company gives Monsoon full and complete authority (including settlement authority) and reasonable assistance (including reasonable access to information in Company’s possession) for that defense. Monsoon will not settle any such claim without Company’s consent unless that settlement includes a full and final release of all claims against Company and does not impose any obligations on Company. If the Technology or the Documentation is held in any such suit to infringe such a right and its use is enjoined, or if in the opinion of Monsoon the Technology or Documentation is likely to become the subject of such a claim, Monsoon at its election and expense will either (i) procure for Company the right to continue using the Technology and/or the Documentation, as appropriate, or (ii) modify or replace the Technology and the Documentation so they become non-infringing while giving substantially equivalent performance. If neither (i) nor (ii) above is, in Monsoon’s sole determination, obtainable using reasonable commercial efforts, then Monsoon may terminate this MSA immediately. Monsoon’s indemnification obligation will not apply to infringement actions or claims to the extent they are based on or result from: (x) modifications to the Technology or Documentation made by a party other than Monsoon; (y) the combination of the Technology and/or the Documentation with items not supplied by Monsoon; and/or (z) Company’s failure to use the most recent version of the Technology or Documentation provided by Monsoon to Company. THIS SECTION AND THE LIMITATIONS SET FORTH IN SECTION 10 STATE COMPANY’S EXCLUSIVE REMEDY AND MONSOON’S ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT.
9.2 By Company. Company will indemnify, defend and hold Monsoon harmless from (a) any demand, claim, suit, or investigation brought against Monsoon by or on behalf of any employee, independent contractor, agent, customer or supplier of Company or any unrelated third party, and Company will pay all damages (including reasonable costs, expenses and attorney fees) , insofar as such demand, claim, suit or investigation is based on Company’s use of the Technology or the Documentation; and/or (b) any loss arising from Company’s breach of any of its representations, warranties and covenants under this Agreement, in each case only if (i) Monsoon promptly notifies Company of that claim (except that failure to promptly notify Company of a claim will not limit, impair or otherwise affect Monsoon‘s rights under this Section unless Company is prejudiced by that failure and then only to the extent of the prejudice); and (ii) Monsoon gives Company full and complete authority (including settlement authority) and reasonable assistance (including reasonable access to information in Monsoon’s possession) for that defense. Company will not settle any such claim without Monsoon’s consent unless that settlement includes a full and final release of all claims against Monsoon and does not impose any obligations on Monsoon. Company’s indemnification obligation will not apply to copyright infringement actions or claims to the extent they are based on or result from any action or claim to be indemnified by Monsoon under Section 9.1 above.
14.1 Assignment. Company may not assign or otherwise transfer, whether voluntarily or by operation of law, this Agreement or any of its rights or obligations under this Agreement without Monsoon’s prior written consent.
14.2 Governing Law; Jurisdiction; Attorney Fees. This Agreement will be construed and interpreted according to the laws of the State of Oregon without respect to its conflict of laws principles, except that in no event will this Agreement or any disputes between the parties related to the Technology or Documentation be construed, interpreted or governed by the Convention for the International Sale of Goods. All disputes relating to this Agreement will be heard exclusively in the state courts of Multnomah County, Oregon or in the federal courts of the District of Oregon, and each party consents to the jurisdiction of those courts. If any arbitration, suit, action or other proceeding (including under the US Bankruptcy Code) is initiated in connection with any controversy arising out of this Agreement or if either party becomes the subject of any bankruptcy proceeding, the prevailing party in that arbitration, action or proceeding, and in any appeal, will be entitled to its reasonable attorney, paralegal, accountant and other expert fees, and all other fees, costs and expenses actually incurred, in addition to any other relief to which it may be entitled by law.
14.3 Waiver of Jury Trial. To the fullest extent permitted by law, both parties waive any right to trial by jury in any proceeding in connection with this Agreement.
13.4 Waiver; Severability. The waiver by either party of any breach or right under this Agreement must be in writing and any such waiver will not constitute a waiver of any other or subsequent breach or right. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, that provision will be severed from the remainder of this Agreement, which will remain in full force and effect unless enforcement of this Agreement without the invalid or unenforceable clause would be grossly inequitable under the circumstances or would frustrate the primary purpose of this Agreement.
14.5 Headings; Interpretation. The paragraph headings in this Agreement are for convenience of reference and will not limit or otherwise affect the interpretation of any provision of this Agreement. The words “includes” and “including” are not limited in any way and mean “includes or including without limitation.” The word “person” includes individuals, corporations, partnerships, limited liability companies, co-operatives, associations and other natural and legal persons. The term “and/or” means each and all of the persons, words, provisions or items connected by that term; i.e., it has a joint and several meaning. Both parties have had the opportunity to have this Agreement reviewed by their attorneys; therefore, any ambiguous provision will not be construed for or against either party. To the extent any provision of this Agreement conflicts with the terms of any other agreement, exhibit or attachment, the terms of this Agreement will control.
14.6 US Government Restricted Rights. The Technology is “commercial computer software” and the related documentation is “commercial computer software documentation” under 48 CFR 12.212 and is provided to US Government licensees with restricted rights. Use, duplication, reproduction or transfer of this commercial Technology is restricted in accordance with FAR 12.212 and DFARS 227.7202 and this Agreement.
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