Terms and Conditions of Service

Last Updated: 7 April 2022

These Monogoto Terms and Conditions of Service (these “T&C”) are made by and between you (“Customer” or “you”) and the Monogoto Inc., a corporation incorporated in Delaware having a place of business at 9174 Deering Ave, Chatsworth CA 91311 or at its discretion, any of its Affiliates (“Monogoto”). If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or government official), then “you” means your entity and you are binding your entity to this Agreement. Monogoto reserves the right, at its discretion, to change, modify, add, or remove portions of these terms at any time by posting the amended terms. Please check these terms periodically for changes. Your continued use of the services covered under this Agreement after the posting of changes constitutes your binding acceptance of such changes. You and Monogoto may each be referred to herein individually as a “Party” or collectively as the “Parties.”  

The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the relevant Monogoto product or service or (b) the effective date of the first Order Form referencing this Agreement.

BY CLICKING ON THE “I AGREE” (OR SIMILAR BUTTON OR CHECKBOX) THAT IS PRESENTED TO YOU AT THE TIME OF YOUR LOGIN, OR BY USING OR ACCESSING THE MONOGOTO SERVICES DESCRIBED IN THE ORDER FORM, YOU INDICATE YOUR ASSENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE OR ACCESS THE APPLICABLE MONOGOTO SERVICES.

  1. The headings of the sections and subsections of these T&C are for convenience of reference only and are not to be considered in construing these T&C.0
  2. “Affiliate” means any entity that is directly or indirectly controlling, controlled by or under common control with a Party. For purposes hereof, “control” means owning more than a fifty percent (50%) interest in such entity or having the ability to control such entity’s management.
  3. “Agreement” means these T&C and all Order Forms, exhibits, schedules and/or addenda attached hereto or incorporated herein by reference. 
  4. “Confidential Information” means any information disclosed by one Party (the “Disclosing Party”) to the other Party or its Affiliates hereunder (the “Receiving Party”), either directly or indirectly, in writing, orally, electronically or by inspection of tangible or intangible objects, including without limitation technology, information, data and/or data segments, ideas, samples, techniques, methods, business plans, works of authorship, models, inventions, know-how, processes, equipment, prices, software, customer and partner information and identities, and other information related to the past, current and future products and services whether or not marked or designated “confidential” or “proprietary.” Confidential Information shall not, however, include any information which the Receiving Party can establish (a) was publicly known and made generally available in the public domain prior to the time of disclosure to Receiving Party; (b) becomes publicly known and made generally available after disclosure to Receiving Party through no action or inaction of Receiving Party; (c) is in the possession of Receiving Party, without confidentiality restrictions, at the time of disclosure as shown by Receiving Party’s files and records immediately prior to the time of disclosure; or (d) is or has been independently developed by the Receiving Party without use of or reference to the Confidential Information. 
  5. “Customer Data” means data originating from you that is processed through the Services.
  6. “Devices” means communication devices that are associated with Monogoto’s cellular network (or other wireless network) pursuant to this Agreement.
  7. “Documentation” means any description of the applicable Monogoto Services, including as applicable and without limitation, written instructions, user guides, documentation and manuals generally made available by Monogoto, in printed and/or electronic form, that describe the installation, operation, use or technical specifications of the Services. 
  8. “Edge” means an on-premises installation instance of a private cellular network owned or operated by you that is connected to a Monogoto Network pursuant to this Agreement and the relevant Order Form.
  9. “Intellectual Property Rights” means all intellectual property rights, including without limitation patents, copyrights and registrations, renewals, extensions, combinations, divisions, reissues thereof, and applications for registration thereof, computer software, programs, data, documentation, technology, know-how, trade secrets and Confidential Information, whether patentable or non-patentable or whether or not reduced to practice, know-how, integrated circuits, layouts, designs, prototypes, laboratory protocols, enhancements, improvements, works-in-progress, research and development information, discoveries, inventions, improvements, procedures, processes, formulations, techniques, trademarks, trade names, trade dress, service marks, logos, packaging and all goodwill associated with the same and other proprietary rights and registrations and any improvements, enhancements, and derivations relating to any of the foregoing (including, without limitation, remedies against infringements thereof and rights of protection of an interest therein under the laws of all jurisdictions) which may exist anywhere in the world.  
  10. “Marks” means any trademark, service mark, trade name, name, logo, slogan, tagline, product or service name, design, look-and-feel, or any other insignia or commercial symbols.
  11. “Mobile Network Operator” or “MNO” means the mobile network operator(s) with whom Monogoto had engaged in order to provide the connectivity (including roaming connectivity) of the Devices via SIM Cards.
  12. “Monogoto Network” means multi-tenant and multi-region self-service API-based cellular network accessible from the relevant MNO or a relevant Edge.
  13. “Order Form” means such mutually and duly executed ordering document referencing these T&C and specifying the Services and related Monogoto SIM Cards and MNO connectivity, Fees (as defined below) and other commercial terms to be provided hereunder, entered into between the Parties from time to time, including Documentation and any addenda and supplements thereto. In case of inconsistencies or conflicts between these T&C and a specific Order Form, the specific terms of the Order Form shall govern.
  14. “Services” means Monogoto’s proprietary Technology through which Monogoto provides services that may include any or all of global connectivity or private networks, enabling connectivity, management and administration of IoT networks and devices and related services, and any Updates or Upgrades that Monogoto makes available under this Agreement. 
  15. “SIM Cards” means dedicated subscriber identity module or subscriber identification module (either physical or virtual) to be operated in conjunction with Devices to allow connectivity of such Devices, via a mobile network, with respect to which the Services are to be provided.
  16. “STK” means a Monogoto proprietary software component deployed on SIM Cards which is used for various Services.
  17. “Subscription Period” means the period during which you are subscribed to the Services, as set forth in an applicable Order Form.
  18. “Technology” means Monogoto’s proprietary technology comprising of self-service, API-driven and integrated cellular cloud with global connectivity and private 5G/4G networks with a hybrid on-premises Edge comprising, among others, the STK, Monogoto Network, and software used in Edges, and any Upgrades that Monogoto makes available under this Agreement.  
  19. “Update” means a non-major change in software and/or documentation, which adjusts existing functionality and/or existing features, including in order to eliminate faults, defects and malfunctions in the form, fit or function of any product and which does not reduce any existing functionality.
  20. “Upgrade” means any new version of the Technology, or major releases which involve the addition of new material features and/or capabilities beyond the then current existing features and/or capabilities of the Technology.
  21. “User” means your individual employees, agents, contractors, consultants, suppliers, or other individuals who are authorized by you to access and use certain administrator portions of the Technology according to the terms and conditions of this Agreement.
  1. Scope of Services. The scope and Subscription Period for the Services (“Subscription”) and where applicable the provision of any related SIM Cards and MNO connectivity, and all related Fees and payments required therefor will be mutually agreed upon between the Parties in the applicable Order Form. Unless otherwise set forth in an Order Form, all Subscription Periods shall automatically extend for additional consecutive twelve (12) month terms upon expiration of the Subscription Period and any extension thereof, unless either Party notifies the other Party in writing of its intention not to extend such Subscription Period or its extension at least one-hundred and eighty (180) days in advance. All sales under a valid Order Form shall be final, non-cancellable and non-refundable, and no sale from Monogoto to you shall be deemed to be on consignment or on a “sale or return” basis. 
  2. Right to Use. In order to facilitate the provision of the Services, and subject to the terms, conditions and limitations of this Agreement and your payment of the Fees, Monogoto (a) hereby grants you and your Users a limited, revocable, nonexclusive, non-assignable, non-transferrable, non-sublicensable right during the Subscription Period(s) to: (i) access and use the Technology solely as made available by Monogoto and (ii) access, use and make verbatim copies of the Documentation provided to you by Monogoto, all solely for the purpose of and as required to receive the Services subscribed to under a relevant Order Form; and (b) shall provide you any SIM Cards and/or other services described under the applicable Order Form. The Documentation shall be considered as Monogoto’s Confidential Information. Unless the Documentation is separately referred to herein, all references in this Agreement to the Technology shall include the Documentation.
  3. The Technology is licensed, not sold. This Agreement only gives you limited rights to use the Technology as explicitly set forth in this Agreement and Monogoto (or its licensors as applicable) reserves all other rights. The SIM Cards are sold, and title in and to the SIM Cards shall pass to you upon full payment of applicable Fees. Upon delivery of the SIM Cards, you shall be solely responsible for any cost and/or charges that may be otherwise associated with such SIM Cards.
  4. Usage Restrictions. You and your Users shall not, and shall not authorize others, other than as expressly authorized under this Agreement or with Monogoto’s prior written approval, directly or indirectly to: (a) work around any technical protections in the Services or Technology; (b) modify, translate, reverse engineer, decompile, disassemble the Technology or any part thereof, or unless permitted by Monogoto in writing create any derivative work based thereon; (c) exceed the Subscription capacity as specified in these T&C and applicable Order From; (d) test the Technology or use the Technology or Services in connection with any benchmark tests or any other tests or comparisons of which the results are to be published in any form or media; (e) except as permitted in an Order From, sublicense, transfer, publish or make available to the public or any third party, rent, lease or lend the Technology; (f) except as permitted in an Order Form, use the Technology to operate a service bureau or subscription service or for commercial services that are materially similar to the Services; (g) disclose or attempt to disclose the Technology or any part thereof, or its sources by any means of dissemination; (h) represent that Customer possess any proprietary interest in the Technology or Services; (i) directly or indirectly, take any action to contest Monogoto’s (or its licensors) Intellectual Property Rights in or in connection with the Technology in any way; or (j) except as permitted in an Order Form, use the Technology or any part thereof or the Services for the purpose of competing with Monogoto.
  1. Support. During the Subscription Period, Monogoto shall furnish you support and maintenance services (“Support Services”) for the Services in accordance with the service level agreement (SLA) specified in the Order Form.
  2. Professional Services. Additional services such as consulting, configuration, adaptation, non-recurrent engineering services or other services (“Professional Services”) may be commissioned by you from Monogoto for a separate fee under a mutually agreed upon fully executed Order Form in accordance with a relevant statement of work to be annexed thereto (to the extent required). In the event you require any Professional Services, you will communicate such requirement to Monogoto and, to the extent practical, Monogoto shall issue an appropriate quote to you with respect to such Professional Services.
  1. Monogoto IP. Monogoto owns and retains all right, title and interest in and to the Technology and the Services, including without limitations in any and all parts thereof, Monogoto’s Marks, the Documentation and in all data and information generated by or made accessible via the Services (and all derivative works, copies, modifications, developments, emulations, Updates, Upgrades and enhancements thereof), including any and all rights in and to all Intellectual Property Rights in the foregoing (collectively, the “Monogoto IP”).  
  2. Customer IP. Excluding Monogoto IP and without derogating from the rights of Monogoto and/or its licensors’ therein, you retain all right, title and interest and Intellectual Property Rights in and to your Customer Data, any and all of your Marks, your Customer Documentation and any related copyrighted content and materials included therein (collectively, the “Customer IP”). You hereby grant Monogoto an irrevocable, perpetual, non-transferable, non-sublicensable, non-exclusive, royalty-free right to use, have used, any anonymous and de-identified data, and any data which is derived or deducted by Monogoto from your use of the Services pursuant to this Agreement, which do not identify you as its origin, for the purpose of enhancement and improvement of Monogoto’s services.
  3. Reservation of Rights. Nothing in this Agreement will transfer ownership in any Intellectual Property Rights from one Party to the other and no Intellectual Property Rights are being created by one Party as work product of, or otherwise on behalf of, or for the ownership of the other Party. Except as set forth explicitly in this Agreement, nothing in this Agreement grants either Party any right, title or interest in or to any technology or Intellectual Property Rights of the other Party or its Affiliates. Each Party reserves all rights not expressly granted under this Agreement, including, without limitation, all ownership rights held by the Parties in their respective technologies (but without derogation of any licenses therein expressly granted in Section 2 hereunder), no additional rights (including any implied licenses, covenants, releases or other rights) are granted by implication, estoppel or otherwise. 
  4. Feedback. In the event you voluntarily choose to provide Monogoto with any suggestions, comments, or other feedback relating to the Technology, Subscription or Services (collectively “Feedback”), whether such Feedback is provided or generated (as applicable) before, on or after the Effective Date, such Feedback is and shall become property of Monogoto and/or its Affiliates. For clarity, any Feedback shall not include any of Customer’s Confidential Information and/or Customer Data.
  1. Reciprocal License to Marks. During the Term only, and subject to the terms and conditions of this Agreement: (a) Monogoto grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use and display Monogoto’s Marks in connection with the Services for the purpose of carrying out your obligations under this Agreement and otherwise, subject to Monogoto’s prior approval, in other marketing and promotional materials; (b) you grant Monogoto a limited, non-exclusive, non-transferable, non-sublicensable license to use and display your Marks solely in connection and as necessary to carry out its obligations under this Agreement and in Monogoto’s marketing and promotional materials, and otherwise, subject to your prior approval. Any goodwill which may be acquired through the use of a Party’s Marks by the other Party shall inure solely to the benefit of the Party owning such Marks. Any other use of any Marks of either Party shall be mutually agreed upon in writing between the Parties prior to such use. You may not remove or modify any markings or any notice of Monogoto’s proprietary rights.
  2. Services Branding Requirements. You will provide acknowledgement and attribution of the role of Monogoto as a technology or data provider in connection with the Services, as mutually agreed by the Parties (consistent with attributions customary in the industry).
  3. References. Each Party may reference the collaboration as contemplated under this Agreement, and the other Party (Monogoto may reference you as a customer of the Services and you may reference Monogoto as your technology and data provider) across its ongoing marketing material and public relations activities throughout the Term.  
  1. Fees. In consideration for the provision of the applicable Monogoto Services provided to you by Monogoto hereunder, you shall pay Monogoto the fees set forth on the Order Form, without offset or chargeback of any kind, under and in accordance with the terms set forth on such Order Form (collectively, the “Fees”). 
  2. Payment Terms. The Fees for the applicable Monogoto Services provided hereunder shall be paid by you in accordance with the applicable Order Form terms. Unless otherwise stated in the Order Form, all pricing and payments are and shall be in USD and shall be completed through the online payments portal, unless otherwise agreed by the Parties. Unless otherwise stated in the Order Form, you shall pay each invoice within thirty (30) calendar days following receipt of the invoice (net + 30). Monogoto may, in its sole discretion, temporarily suspend the applicable Monogoto Services provided hereunder in the event that you fail to make timely payments of the Fees in accordance with the terms and conditions of these T&C and/or the applicable Order Form.
  3. Taxes. All amounts payable by you to Monogoto hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, “Taxes”). You shall be solely responsible for payment of any Taxes, except for those Taxes based on the income of Monogoto. You will not be entitled to withhold any Taxes from amounts due to Monogoto.
  1. Term. This Agreement shall commence on the Effective Date and shall continue in effect for the Subscription Period specified in the Order Form or until all Order Forms have expired, unless terminated earlier in accordance with the provisions hereunder (the “Term”).
  2. Termination for Convenience. Unless otherwise specified in the applicable Order Form, either Party may terminate this Agreement and/or a particular Order Form upon sixty (60) days prior written notice to the other Party. Notwithstanding the foregoing, any termination for convenience by you shall not entitle you to any refund of prepaid fees. In no event shall any termination by you relieve you from payment of any Fees under any Order Form.
  3. Termination for Cause. Either Party may terminate this Agreement (and any Order Forms incorporated hereto, unless otherwise agreed therein) for cause (a) upon thirty (30) days’ written notice to the other Party if such other Party commits a material breach of this Agreement and does not cure such breach, if curable, at the expiration of such period, or (b) immediately on written notice if the other Party (i) becomes the subject of a petition in bankruptcy or any other proceeding (whether voluntary or involuntary) relating to insolvency, administration, receivership, administrative receivership, liquidation or assignment for the benefit of creditors, or if the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; (ii) breaches Section 8 of these T&C; (iii) acts with gross negligence or willful misconduct in the performance of such Party’s obligations under this Agreement; or (iv) attempts to assign this Agreement in violation of Section 12.3.
  4. Payment upon Termination. If this Agreement is terminated by Monogoto in accordance with Section 7.3 above: (a) by Monogoto for your breach – you will pay Monogoto any and all outstanding Fees; or (b) by you for Monogoto’s breach – you will pay to Monogoto any and all outstanding Fees prorated until the effective date of termination.
  5. Effect of Termination. Upon the termination or expiration of this Agreement for any reason: (a) all rights and licenses granted herein shall terminate and you shall immediately cease all use of the applicable Monogoto Services; (b) each Party shall promptly return to the other Party, or destroy and certify the destruction of all Confidential Information, to the other Party; (c) except as set forth in Section 7.4 above, you shall remit in full all payments due to Monogoto according to this Agreement; and  (d) all other performance obligations of both Parties under this Agreement shall cease.
  6.  Survival. In the event of any expiration or termination of this Agreement and/or any applicable Order Forms, Sections 1, 4, 6, 7.4, 7.5, 7.6, 8, 9, 10, 11 and 12 shall survive the expiration or termination of this Agreement along with any provisions hereof which expressly or by their nature are required to survive such expiration or termination in order to achieve their purpose. 
  1. Neither Party will disclose to any third party or use any Confidential Information except as expressly permitted in this Agreement. Each Party will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control using no less than a reasonable standard of care.
  2. Each Party acknowledges any unauthorized disclosure or unauthorized use of Confidential Information will cause irreparable harm and loss to the Disclosing Party. In the event of any actual or threatened breach of this Section 8 by a Receiving Party, the Disclosing Party shall be entitled to seek emergency interim relief prohibiting disclosure of its Confidential Information in any court of competent jurisdiction, which action shall not restrict or limit any other legal or equitable remedies that the disclosing Party determines to seek.
  3. Notwithstanding the foregoing, a Receiving Party may disclose Confidential Information: (a) to the extent required by order of a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that the Receiving Party furnishes the Disclosing Party with immediate notice of such order so that it may contest the order or obtain a protective order and provides all reasonable assistance, at the Disclosing Party’s expense and direction, in contesting such order; or (b) on a “need-to-know” basis under an obligation of confidentiality, similar to the obligations set forth herein, to its Affiliates, attorneys, accountants, authorized third party agents or subcontractors, banks and other financing sources and their advisors and trusted consultants (“Authorized Parties”) solely for the purpose of delivering the applicable Monogoto Services and performing its obligations hereunder, provided that the Receiving Party remains responsible to the Disclosing Party for such other parties’ compliance with the disclosure and use restrictions of this Section 6 as though each were a Party hereto.
  4. Furthermore, Confidential Information disclosed to a Party’s Affiliate hereunder shall be deemed disclosed to such Party, and such Party shall ensure its Affiliate complies with all disclosure and use restrictions of herein as though it were a Party hereto, such that Receiving Party shall obtain an undertaking of confidentiality of similar form and content as the obligations set forth herein.
  5. Notwithstanding the forgoing, the Receiving Party shall be responsible to the Disclosing Party for any act or omission of its Affiliates that would breach the obligations herein, as if the action or omission had been carried out by the Receiving Party. The terms and conditions of the Agreement will be deemed to be the Confidential Information of each Party and will not be disclosed without the prior written consent of the other Party, provided however, that each Party may reveal the existence and terms of this Agreement without obtaining prior written consent of the other Party: (a) to its Authorized Parties; or (b) in the course of a due diligence process conducted by a third party in connection with a potential investment, acquisition, merger or other similar transaction involving such Party.
  6. Data Privacy. It is agreed and acknowledged by you you’re your Customer Data may include personal data of individuals, amongst whom are Users or your clients and their users. Monogoto shall collect, process, store, and transfer all such personal data only on your behalf and in accordance with your documented written instructions and in strict accordance with applicable law including, but not limited to, the California Consumer Privacy Act of 2018 and related regulations (CCPA), the EU data protection principles and requirements and with Monogoto’s Data Protection Agreement (to the extent separately executed by the Parties and required by applicable law). Monogoto shall use and store such personal data solely for the purpose of facilitating performance of the Services and collaboration under this Agreement and for no other purposes. Monogoto shall implement and maintain technical and organizational measures appropriate to the nature of the personal data it collects, processes, stores, or transfers consistent with industry best reasonable practices. If, in the scope of the Services, personal data of EU residents is being transferred by Monogoto to countries outside the EU/EEA, Monogoto shall ensure by appropriate means that such personal data continues to be handled and processed in accordance with the data protection principles of purpose limitation and necessity; data accuracy, data quality and proportionality; data security and confidentiality. To the extent applicable, the rights of data subjects (access, rectification, deletion, and objection) will be ensured. In addition, Monogoto as recipient and processor (as such term is defined under EU law) of personal data (if any) shall reasonably assist you to promptly comply with inquiries it receives under applicable data protection laws. In the event Monogoto discovers or is notified of a data breach of its properties or systems that implicates such personal data, Monogoto shall notify you of the data breach as soon as practicable, but no later than within seventy-two (72) hours after Monogoto becomes aware of the data beach. Monogoto shall take all actions necessary to contain the data breach and provide you with all reasonably necessary information on the data breach and proposed remedial actions. You acknowledge that Monogoto shall have no responsibility for the accuracy, quality, integrity, legality, reliability, and intellectual property ownership or right to the Customer Data or other data related to your Users, clients or your respective end users.
  1. Mutual Representations. Each Party hereby represents, warrants, and covenants to the other Party that (a) it is duly organized, validly existing and in good standing under the laws of the state of its domicile and is in good standing in each other jurisdiction in which it or any of its Affiliates (to the extent such Affiliate is related to this Agreement) are established (if any); (b) it has power and authority to transact its business and to execute this Agreement and to perform its obligations under this Agreement; (c) its entry into this Agreement and performance thereof does not violate or constitute a breach of any agreement to which it is a Party or otherwise bound; (d) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties; and (e) that in performing its obligations and exercising its rights under this Agreement, it will comply with all applicable laws.
  2. By Monogoto. Monogoto warrants, for your benefit alone, that the Services as provided by Monogoto, if operated as directed and in accordance with the Documentation and herewith, shall operate substantially in accordance with the express functional specifications in the relevant Order Form.  Monogoto warrants that it has the requisite authority to execute, deliver, and perform its obligations under this Agreement and that doing so will not violate any preexisting contracts or agreements. 
  3. By Customer. You warrant, represent and undertake that: (a) you are the sole and exclusive owner of the Customer IP, and have the full right, authority and license to use, utilize and license the Customer IP, including for the avoidance of doubt the Customer Data, or any part thereof, including to grant the licenses granted to Monogoto hereunder; (b) the Customer IP does not infringe upon or otherwise violate any rights, including the Intellectual Property Rights, of any third party, and you have not received notice of any claim or suit alleging that the Customer IP or any part thereof infringes or violates the rights of any third party; (c) with respect to end user data Monogoto will be required to collect and/or process as part of providing the Services (if any), you will provide all required disclosures and/or notices to, and will have or have obtained all necessary consents from any and all of your end users with respect to such end user data, and have all right and authority to allow Monogoto and its licensors, service providers and partners access to the end user data, in accordance with applicable laws.
  4. Exclusive Remedies. In any event of breach of the limited warranties contained in Section 9.2, you shall have no claims against Monogoto where Monogoto complies with the SLA in order to repair the Services so that they operate as warranted. Monogoto may disclaim any obligation or liability under this Section ‎9 (Warrants and Representations) if the Technology has been: (a) altered, modified, or serviced other than by Monogoto or on its behalf; (b) improperly used in a manner other than as specified in the Documentation; or (c) if you have violated the Subscription’s scope and/or the usage restrictions set forth under Section ‎2.5 (Usage Restrictions) hereto. Monogoto’s limited warranty shall not apply if the Services are used on or in conjunction with hardware other than as described in the Documentation or in the applicable Order From. 
  1. You shall indemnify, hold harmless, and (at Monogoto’s option) defend Monogoto and/or its parents, subsidiaries, Affiliates, and their directors, officers, employees, agents, successors and permitted assignees (each, a “Monogoto Indemnified Party”) from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) (collectively, “Claims”) filed, brought or made by any third party against a Monogoto Indemnified Party, arising out of (a) a claim that Monogoto’s processing of Customer Data as permitted and contemplated hereunder infringes any third party rights, including without limitation the infringement thereof of any patents, copyright, trademark, trade secret or other Intellectual Property Rights or violates a right of privacy; (b) any services provided by you or your customers through the use of the Services or Technology; (c) your fraud, willful misconduct or gross negligence; (d) any other breach of any warranty, representation or obligation made by you under this Agreement; and/or (e) your violation of any applicable law or regulation.
  2. Monogoto shall indemnify, defend and hold you and/or any of your parents, subsidiaries, Affiliates, and their directors, officers, agents, employees, successors and permitted assignees (each, a “Customer Indemnified Party”, and together with the Monogoto Indemnified Party – an “Indemnified Party”) harmless from and against any and all Claims filed, brought or made by any third party and finally awarded by a court of competent jurisdiction against a Customer Indemnified Party, arising out of (a) a claim that the Technology, as delivered by Monogoto and used in accordance with the terms of this Agreement, infringes any patents, copyright, trademark, trade secret or other Intellectual Property Rights of such third party; or (b) Monogoto’s fraud, willful misconduct or gross negligence. 
  3. Notwithstanding the foregoing, the Party purportedly owing indemnification (the “Indemnifying Party”) shall have no defense or indemnification obligation or other liability for any Claim of infringement or misappropriation due to (a) operation or use of the Indemnifying Party’s documentation, services, Marks or other materials other than in accordance with this Agreement; (b) modification of the Indemnifying Party’s documentation, services, solutions, Marks or other materials by the Indemnified Party or any agent of the Indemnified Party in a manner that is not approved in writing by the Indemnifying Party; (c) the integration or combination of the Indemnifying Party’s documentation, services, solutions, Marks or other materials with any other products, services, hardware, software or other materials not provided by or approved by the Indemnifying Party in writing if such infringement or misappropriation would not have occurred but for such integration or combination; or (d) the Indemnified Party’s failure to implement any Updates to the Indemnifying Party’s documentation, services, solutions, Marks or other materials, to the extent that the infringement or misappropriation would not have occurred but for such Indemnifying Party’s failure to do so.
  4. During the Term of this Agreement, In the event that the Services have become, or at Monogoto’s discretion are likely to become, or are claimed by a third party to be the subject of a Claim for infringement or misappropriation, then Monogoto may, at its sole and absolute discretion and as your sole remedy hereunder, either (a) replace the Services or any part thereof with a substantially equivalent feature/product/service/functionality; (b) modify the Services or any part thereof so that they become non-infringing, while maintaining substantially equivalent functionality; or (c) obtain for you the right to continue to use the Services (of the relevant part thereof). In the event Monogoto determines that options (a), (b) or (c) are not commercially and/or technically feasible, then Monogoto shall have the right to immediately terminate this Agreement without additional penalty.   
  1. THE TECHNOLOGY IS COMPRISED OF COMPLEX COMPUTER SOFTWARE AND HARDWARE COMPONENTS. THE PERFORMANCE OF THE TECHNOLOGY WILL VARY DEPENDING ON THE YOUR HARDWARE PLATFORM AND DEVICES, SOFTWARE INTERACTIONS, THE CONFIGURATION OF THE SOFTWARE, MNO PROVIDERS AND OTHER FACTORS. YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN AS EXPLICITLY PROVIDED UNDER THIS AGREEMENT, MONOGOTO (AND ITS AFFILIATES AND LICENSORS) PROVIDE NO OTHER WARRANTIES AS TO THE PERFORMANCE, CORRECTNESS, FUNCTIONALITY, FITNESS FOR PURPOSE OR SUITABILITY OF THE SERVICES OR DOCUMENTATION FOR ANY PARTICULAR PURPOSE. OTHER THAN AS EXPLICITLY PROVIDED UNDER THIS AGREEMENT, MONOGOTO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE SERVICES AND DOES NOT WARRANT THAT THE TECHNOLOGY IS FAULT TOLERANT OR FREE FROM ERRORS, CONFLICTS OR INTERRUPTIONS, THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE TECHNOLOGY WILL OPERATE ERROR-FREE, THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, THAT THE TECHNOLOGY WILL BE COMPATIBLE WITH ALL OF YOUR EQUIPMENT OR SOFTWARE CONFIGURATIONS OR THAT MONOGOTO WILL CORRECT ALL ERRORS IN THE TECHNOLOGY. OTHER THAN AS EXPLICITLY PROVIDED IN THIS AGREEMENT, THE SERVICES (AND ANY PART THEREOF) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON- INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. MONOGOTO AND ITS AFFILIATES EXPRESSLY DISCLAIM AND MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE USABILITY, ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY INFORMATION, DATA, RESULTS, OR OTHER MATERIALS OBTAINED THROUGH OR GENERATED BY, OR IN CONNECTION WITH, THE USE OF THE TECHNOLOGY AND THE SERVICES. 
  2. IN NO EVENT SHALL EITHER PARTY AND/OR ANY OF SUCH PARTY’S AFFILIATES BE LIABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING RESULTING FROM OR ARISING OUT OF THE SERVICES, USE OR INABILITY TO USE THE SERVICES, FAILURE OF THE SERVICES TO PERFORM AS REPRESENTED OR EXPECTED, LOSS OF GOODWILL, DATA OR PROFITS, THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, AND ANY OTHER ACT OR OMISSION OR BY ANY OTHER CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM THE CONDUCT OF CUSTOMER AND/OR THIRD PARTY SERVICES AND/OR THIRD PARTY COMPONENTS. 
  3. EXCEPT FOR CLAIMS ARISING OUT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE TOTAL AGGREGATE LIABILITY OF MONOGOTO (OR ITS LICENSOR(S)) FOR ALL CLAIMS ARISING IN CONTRACT, EQUITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE CONSIDERATION PAID BY YOU IN FEES TO MONOGOTO UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT LIABILITY RESULTING FROM YOUR PAYMENT OBLIGATIONS OR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
  1. Governing Law; Jurisdiction.  (a) if the Customer entity appearing on the Order Form is US-based: this Agreement shall be construed in accordance with and controlled by the laws of the State of California, without regard to the conflicts of laws provisions thereof, and the Parties agree that the state and federal courts located in Sacramento, California shall have exclusive jurisdiction and venue to adjudicate any disputes arising out of or relating to this Agreement; (b) if the Customer entity appearing on the Order Form is Israel-based: this Agreement shall be construed in accordance with and controlled by the laws of the State of Israel, without regard to the conflicts of laws provisions thereof, and the Parties agree that the competent courts located in Tel Aviv, Israel shall have exclusive jurisdiction and venue to adjudicate any disputes arising out of or relating to this Agreement; (c) if the Customer entity appearing on the Order Form is based in any other country: this Agreement shall be construed in accordance with and controlled by the laws of England and Wales, without regard to the conflicts of laws provisions thereof, and the Parties agree that the competent courts of London, England shall have exclusive jurisdiction and venue to adjudicate any disputes arising out of or relating to this Agreement.  
  2. Notices. All notices shall be in writing and deemed given and received when delivered in person, by facsimile, or by commercial air courier service. Notices shall be addressed to each Party at its address set forth above, or such other address as the recipient may have specified by earlier notice to the sender. Any notice shall operate and be deemed to have been served, if personally delivered or sent by fax on the next following business day, and if by courier, on the fifth following business day.
  3. Assignment. This Agreement shall bind and inure to the benefit of each Party’s permitted heirs, successors and permitted assigns. This Agreement may not be assigned by you without Monogoto’s prior written consent. Monogoto may assign this Agreement without consent to any purchaser of all or substantially all of Monogoto’s shares or to any successor by way of merger, consolidation or similar transaction. Monogoto may, at its discretion, assign or transfer its rights to receive any or all payments under this Agreement, including without limitation its rights to receive the Fees, subject to providing you with prompt written notice thereafter. Any purported assignment in violation of this Section will be null and void.
  4. Relationship of Parties. The Parties hereto are independent contractors, and nothing herein will be deemed to create a legal partnership, joint venture, franchise or any agency or employment relationship between the Parties. Nothing contained in this Agreement shall constitute either Party as an agent or representative of the other Party, and no Party shall make no representations, warranties or agreements on behalf of the other Party, except as explicitly permitted by such Party in writing.
  5. Nonwaiver. No waiver of any term, condition or obligation of this Agreement will be valid unless made in writing. No failure or delay by any Party at any time to enforce one or more of the terms, conditions or obligations of this Agreement will (a) constitute waiver of such term, condition or obligation, (b) preclude such Party from requiring performance by the other Party at any later time, or (c) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature.
  6. Severability. This Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Agreement is held to be invalid or unenforceable, then such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision.
  7. Entire Agreement. This Agreement, together with the Order Form supersedes all prior or contemporaneous oral or written agreements and understandings. This Agreement may not be modified or amended except in writing signed by a duly authorized representatives of each Party. When using any particular Monogoto service, you may be subject to additional posted guidelines, rules, product requirements or other terms applicable to such services. All such guidelines, rules, product requirements or additional terms are hereby incorporated by reference into the Agreement.
  8. Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of their respective obligations (other than obligations to pay when money due) or attempts to cure any breach are delayed or prevented by any natural calamity, epidemic or pandemic, act of God or a public enemy, outbreak of hostilities, riot, civil disturbance, acts of terrorism, act of any military, civil or regulatory authority, material change in laws, disruption or outage of communications, power or other utility, strike, lock-out or industrial action or other cause which could not have been prevented with reasonable care of such Party, provided that such Party gives the other Party written notice thereof and that for the duration of such force majeure the defaulting Party must continue to use reasonable efforts to overcome such force majeure.