Terms | Monsoon

1. Parties; Scope

This Master Services Agreement (the "MSA") is between the licensee and its employees and contractors (the "Company") and Monsoon Inc., an Oregon corporation ("Monsoon") with respect to a software and Internet-based solution known as "Monsoon Marketplace" (collectively, the "Technology"). The Technology consists of four elements: (a) application software in object code form (the "Application Software"), which contains a graphical user interface and will be installed on Authorized Work Station(s) (defined below); (b) the right for the Authorized Server(s) (defined below) to access via the Internet information about third party prices and other information (the "Monsoon Web Services"); (c) inventory management software in object code form (the "Server Software"), which communicates with the Application Software and the Server Software and will be installed on an Authorized Server(s) (defined below); and (d) a cloud-based pricing module that interfaces with the Authorized Server and Authorized Work Stations. Company has asked Monsoon to license and support that Technology, and Monsoon is willing to do so subject to Company's acceptance of this MSA, including the Standard Terms and Conditions below, and your Company's Order Form, (collectively the "Agreement").

2. Revisions to Prices and Other Terms

Monsoon may, at its sole discretion, change the Charges (defined below) and any other terms of this MSA from time to time by posting those changes on its website at https://www.monsooninc.com/MSA or on any successor website and by providing email or other written notice to Company. Changes to License Fees will be made by Monsoon only after 30 days prior notice to Company. Company agrees that continued use of the Technology after notice of any change to the Charges or any other term of this MSA is posted to Monsoon's website, given electronically or made as otherwise permitted in Section 12 constitutes acceptance of those changes.

3. 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. License

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. Payment; Payment Terms

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.

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.

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.

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.

3. Support

Monsoon provides standard product support via email at no cost during the Monsoon support team's on duty hours, Monday-Friday, 2AM to 5PM Pacific Time, excluding major US holidays ("Standard Support"). Support requests that are addressed by Monsoon outside of standard product support hours, including weekends and holidays, will be billed at an hourly rate of US$175. Additional support for the Technology may be available as outlined in the Order Form.

4. Installation, Implementation and Training

Monsoon will provide assistance in the installation of the Application Software, Server Software and in training Company's Authorized Users in accordance with Implementation Plan attached to the Order Form. Any non-standard installation, implementation or training services will be documented in the Order Form and billed for accordingly.

5. Company's General Obligations

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.

Terms of Service