These Terms and Conditions (together with any attachments thereto, these “T&Cs”) set forth the terms for the provision of Products and Services (each as defined below) by Monetate, Inc. (“Monetate”) for the entity (“Client”) executing a SO (as defined below). 

1. Definitions.

“Agreement” means these T&Cs, together with all SOs issued hereunder.
“Applicable Law” means all applicable laws, rules and regulations.
“PII” means information that can be used independently or collectively with other information to identify or locate a single person or to identify an individual in context.
“Product(s)” means the software product offering(s), including underlying technology, as described in the applicable SO through which such Product(s) is/are purchased.
“Prohibited Data” means information or data that (a) constitutes “Protected Health Information” (as defined in 45 CFR 160.103) or “nonpublic personal information” (as defined under Title V of the Financial Services Modernization Act of 1999 (the “Gramm-Leach-Bliley Act”), (b) is subject to the Payment Card Information Data Security Standards or (c) discloses an individual’s race, religious beliefs, political opinions or sexual orientation.
“Service” means both individually and collectively, the services purchased by Client in the applicable SO.
“SO” means a mutually executed service order that sets forth the Products and/or Service purchased by Client and to which these T&Cs are incorporated by reference, together with all attachments thereto.
“Site(s)” mean(s) the site domain(s) set forth in the applicable SO.
“Start Date” means the date set forth on the applicable SO as the “Start Date.”
“SO Term” means, in respect of each SO, the period of time between the “Effective Date” and the “End Date,” as each term is set forth on the applicable SO.

2. Products and Service. Monetate shall provide the Products and Service set forth and described in the applicable SO. All Service hours purchased by Client shall expire upon the expiration of the then-current SO Term. Client will be responsible for and provide all graphical creative elements (e.g., background images) required in connection with Client’s use of the Products and Service.
3. Fees and Payment.

3.1 Invoicing. All charges and fees set forth in a SO (“Fees”) shall be invoiced in accordance with the terms of the Agreement, and shall be due within the time period set forth on the applicable SO. If any payment that has not been disputed by Client in good faith prior to the applicable due date (each, an “Undisputed Payment”) has not been received by Monetate as of such due date and remains unpaid 10 days following Client’s receipt of Monetate’s written notice thereof, Monetate may suspend Client’s access to the Products and Service until such Undisputed Payment is made. All Fees will continue to be charged during any such suspension period.  
3.2 Late Fees and Collections. Monetate may assess a late fee at the rate of 1.5% per month (or the maximum interest allowable under Applicable Law, if less) on any Undisputed Payment that remains unpaid 30 days after the due date. Client is liable for all collection fees and expenses, including reasonable attorney fees, relating to any unpaid Undisputed Payments.
3.3 Travel Expenses.  Client shall reimburse Monetate for all pre-approved, reasonable, actual and documented travel, lodging, meal and other related out-of-pocket expenses that Monetate may incur in connection with the travel of Monetate personnel to any Client-requested location.  
3.4 Taxes. All Fees exclude any sales or use taxes associated with the Products and Service, which shall be Client’s sole responsibility to pay (other than taxes on Monetate’s income). Client acknowledges and agrees that it is solely responsible for any such sales and use taxes that result from the Products provided and Service purchased under a SO. Unless otherwise set forth in the applicable invoice (in which case Client shall remit such taxes to Monetate along with the applicable Fees), Client will remit any such taxes due directly to the appropriate taxing authority. Client agrees to act in compliance with all Applicable Law in connection with any such payment.

4. Term and Termination.

4.1 Term.  These T&Cs shall commence on the effective date of the initially executed SO and shall continue for so long as any SO is in effect. Each SO will renew automatically for successive one (1) year periods immediately following the “End Date” (or anniversary of such End Date, as applicable) set forth therein unless either Client or Monetate provides written notice of termination at least 30 days prior to such End Date (or anniversary of such End Date, as applicable).
4.2 Termination for Material Breach.  Either party may terminate any SO upon prior written notice to the other party if such other party materially breaches any term or condition of the Agreement and fails to cure such breach within 30 days after receipt of written notice thereof.  In the event that any SO is terminated by Client due to an uncured breach by Monetate, Monetate shall refund to Client the pro rata portion of any amounts actually paid to Monetate that correspond to periods following the effective date of such termination.
4.3 Termination for Bankruptcy.  Either party may terminate a SO with immediate effect upon written notice to the other party if the other party becomes insolvent, is the subject of a petition for creditor protection or a petition in bankruptcy or of any other proceedings under bankruptcy, insolvent (or equivalent laws in other countries) or makes an assignment for the benefit of its creditors.
4.4 Post-Termination Access. Monetate shall permit Client to access the Products, solely for the purpose of downloading the Client Data (as defined below), for a period of 30 days following the effective date of termination or expiration of any SO.

5. Confidentiality.

5.1 Confidential Information.  Each party shall keep confidential and shall not use or disclose for any purpose, other than to exercise rights and perform responsibilities under the Agreement, any information disclosed by the other party to such party in connection with the Agreement, whether disclosed prior to, on, or after the Effective Date of the initial SO, which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information (collectively, “Confidential Information”).  
5.2 Exceptions. The obligations set forth in Section 5.1 of these T&Cs shall not apply to information that: (a) is or subsequently becomes publicly known other than through a breach of an obligation under the Agreement; (b) is lawfully received from a third party not subject to confidentiality terms with the disclosing party with respect to such information; (c) was independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as established by the written records of the receiving party, or (d) is required to be disclosed under Applicable Law; provided that in the case of this clause (d), the receiving party shall promptly: (i) give the disclosing party reasonable written notice prior to disclosure pursuant to such requirement (unless prohibited by such requirement); (ii) use diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and allow the disclosing party to participate in the proceeding; and (iii) comply with any applicable protective order or equivalent. Client acknowledges and agrees that the pricing terms contained in any SO shall be deemed Monetate’s Confidential Information.

6. Client Data

6.1 Client Data.  As between Client and Monetate, all data and other information processed through the Products (collectively, “Client Data”) is and shall remain Client’s property, including any modifications or derivative works thereof and, to the extent applicable, shall be deemed Client’s Confidential Information. Client shall be solely responsible for the configuration of the Products and agrees that it will provide Monetate with prior notice if it configures the Products to collect any PII; provided Client agrees that it will not configure the Products to collect any Prohibited Data (or otherwise transmit any Prohibited Data to Monetate) without Monetate’s prior written consent (which consent may be withheld by Monetate at its sole discretion). If applicable, Monetate shall be deemed the “data processor” and Client shall be deemed the “data controller.”
6.2 Aggregated Anonymous Data. Client acknowledges that Monetate collects and aggregates anonymous data concerning user behavior, traffic and other interactive information.  Such aggregated anonymous data neither identifies Client nor any Site visitor, and neither the identity of Client nor any such visitor can be derived from such data.  Client agrees that both during and after the term of the Agreement, Monetate may retain and use all such aggregated anonymous data to improve and market Monetate’s products and services.  
6.3 Applicable Law. The parties hereby agree to comply with all Applicable Law relating to the collection, storage and processing of Client Data.
6.4 Marketing. Client shall provide to Monetate, Client’s approved logo and associated use guidelines for use in a list of Monetate’s clients.  Client shall retain all intellectual property rights in and to such logo. Monetate shall have the right to issue a press release announcing Client as a client of Monetate, the content of which shall be subject to Client’s consent, which consent shall not be unreasonably withheld or delayed.

7. Intellectual Property.

7.1 License Grant.  Monetate owns all intellectual property rights in and to the Products. Other than the limited license right to utilize the Products, nothing contained in the Agreement shall be construed as granting Client any rights in or to the Products.  Subject to the terms and conditions of the Agreement, Monetate hereby grants to Client a limited scope, nonexclusive, nontransferable license for Client’s employees and contractors (provided that such contractors are bound, in writing, to terms of confidentiality no less restrictive than those contained herein and that Client shall be responsible for the acts and omissions of such contractors) to use and access the Products set forth in a duly executed SO during the SO Term for Client’s business purposes and as may be further described in such SO, solely in connection with the Site(s).  Client may use any documentation provided by Monetate in connection with the Products, solely in connection with the licensed use of the Products. Client shall administer the registration and password access to the Products of its personnel. All rights (including all intellectual property rights) to and/or with respect to any items, materials or services relating to the Products not expressly licensed by Monetate hereunder, are expressly and exclusively retained by Monetate. Monetate shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Products any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Client, solely as such information relates to the Products, and expressly excluding any of Client’s Confidential Information.
7.2 Prohibition on Reverse Engineering. Client shall not do, attempt to do, nor permit any person or entity to do, any of the following: (a) create or recreate the source code for any underlying software and technology relating to the Products, or re-engineer, reverse engineer, decompile or disassemble any such underlying software and technology; (b) copy, modify, adapt, translate or create derivative works based upon any such underlying software and technology; (c) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Products or any associated documentation; or (d) sublicense, sell, lease, rent, timeshare or otherwise transfer, or pledge as security, the Products or its access thereto.  

8. Warranties. Monetate warrants that it will provide the Products and Service in a professional and workmanlike manner and in accordance with the Agreement. EXCEPT AS EXPRESSLY PROVIDED IN THESE T&Cs, ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE PRODUCTS OR SERVICE OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, OR OTHERWISE (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY DISCLAIMED.
9. Limitation of Liability. EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 10, OR A BREACH OF SECTIONS 5, 6 OR 7: (a) UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS SUPPLIERS OR AFFILIATED PERSONS OR ENTITIES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING CLAIMS FOR LOSS OF DATA, USE OF OR INABILITY TO USE THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA OR THE SPECIFIC RESULTS OBTAINED THROUGH THE USE OF THE PRODUCTS AND SERVICE) ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR REMEDY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE; AND (b) IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH EITHER PARTY, ITS SUPPLIERS AND AFFILIATED PERSONS OR ENTITIES MAY INCUR IN ANY ACTION OR PROCEEDING ARISING HEREUNDER EXCEED THE TOTAL AMOUNT PAYABLE TO MONETATE BY CLIENT, PURSUANT TO THE SO UNDER WHICH SUCH LIABILITY AROSE, DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
10. Indemnification.

10.1 Client Indemnity. Monetate will indemnify, defend and hold harmless Client from and against all claims, suits and/or proceedings brought by any third party against Client alleging infringement of such third party’s intellectual property rights by the Products or Service, including with respect to any resulting liabilities, losses, damages and costs awarded by a court or included as part of a final settlement, as well as reasonable attorneys’ fees, in connection with the foregoing; provided, that Client: (a) promptly notifies Monetate, in writing, of any such claim, suit or proceeding for which indemnity is claimed; (b) cooperates reasonably with Monetate, at Monetate’s expense, in the defense and settlement thereof; and (c) allows Monetate to control the defense and settlement thereof.  Client will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense, provided that ultimate control of such defense shall remain solely with Monetate.   If any infringement claim with respect to the Products or Service may be or has been asserted, Client will permit Monetate, at Monetate’s option and expense, to: (i) procure for Client the right to continue using or receiving the affected Product(s) and/or Service; (ii) replace or modify the affected Product(s) and/or Service to eliminate the infringement while providing functionally equivalent performance; or (iii) terminate the Agreement with respect to the affected Product(s) and/or Service in exchange for a refund of the pro-rata portion of Fees that Client actually paid to Monetate for the affected Product(s) and/or Service corresponding to periods following such termination.  Monetate’s obligations under this Section 10 shall not apply to any claims based upon: (A) any materials, software or other information that have been altered by Client or any party other than Monetate; (B) other than Intended Combinations (defined below), the combination of the Product(s) with any items not provided or recommended by Monetate in writing (including in documentation provided by Monetate); or (C) use of the Products or any such materials, software or information after termination pursuant to clause (iii) above. “
Intended Combination” means combinations of a Product with items that are necessary for its intended use and functionality (e.g., currently supported versions of standard web browsers and operating systems).  In the event that a claim described above arises out of an Intended Combination, Monetate shall be required to indemnify Client pursuant to this Section 10.1. Provided that Monetate complies fully with the requirements of this Section 10.1, this Section 10.1 states Client’s exclusive remedy and Monetate’s sole liability in connection with any claim of infringement or misappropriation of intellectual property rights.
10.2 Monetate Indemnity. Client will indemnify, defend and hold harmless Monetate from and against all claims, suits and/or proceedings brought by any third party against Monetate resulting from Client’s (or its subcontractor’s) failure to comply with the restriction on collection and/or transmission of Prohibited Data set forth in Section 6.1 of these T&Cs, including with respect to any resulting liabilities, losses, damages and costs awarded by a court or included as part of a final settlement, as well as reasonable attorneys’ fees, in connection with the foregoing; provided, that Monetate: (a) promptly notifies Client, in writing, of any such claim, suit or proceeding for which indemnity is claimed; (b) cooperates reasonably with Client, at Client’s expense, in the defense and settlement thereof; and (c) allows Client to control the defense and settlement thereof. Monetate will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense, provided that ultimate control of such defense shall remain solely with Client.  

11. Miscellaneous.

11.1 Independent Parties/Third Party Beneficiaries.  Client and Monetate are independent parties. Nothing in the Agreement will be construed to make either party an agent, employee, franchisee, joint venturer or legal representative of the other party. Neither party will either have, or represent itself to have, any authority to bind the other party or act on its behalf. Nothing in the Agreement is intended or shall be construed as a third party beneficiary agreement, nor shall the Agreement confer, convey or be deemed to accord any rights to any third party.
11.2 Force Majeure.  Neither party will be liable for any failure or delay in performing an obligation under the Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, or governmental acts or omissions, laws or regulations. These causes will not excuse Client from paying amounts due to Monetate.
11.3 Notices.  Any notice under or in connection with the Agreement shall be in writing and shall be sent by nationally recognized overnight courier, certified mail (return receipt requested) to the addresses for notice set forth in the applicable SO or electronic mail to Client’s contact identified on the applicable SO and to contracts@monetate.com. In the event that no Client contact is identified on a SO, Client may subsequently provide such information by written notice to Monetate, and Monetate may, prior to receipt of such information utilize any reasonable notification information to provide notice to Client. Any such failure to identify a contact by Client shall not affect the validity of the Agreement.
11.4 Assignment and Subcontracting.  Neither party may assign or otherwise transfer the Agreement or any of its rights hereunder without the other party’s prior written approval, which will not be unreasonably withheld, provided, however, that each party may assign the Agreement, in its entirety and upon prior written notice to the other party, to an affiliate or in connection with a merger, acquisition or similar organizational transaction, unless such assignment is to a competitor of the non-assigning party.  Any assignment or attempt to do so other than as provided in this Section 11.4 will be void.  Notwithstanding anything herein to the contrary, Client hereby agrees that Monetate may subcontract any of the Services purchased under an applicable SO to a third-party so long as such third-party has agreed to obligations of confidentiality no less restrictive than those set forth in these T&Cs.
11.5 Waiver, Amendments or Other Modification.  Except as otherwise provided herein, any waiver, amendment or other modification of the Agreement will not be effective unless in a physical writing manually executed by the parties; provided that signatures delivered electronically or by scanned .PDF format (or equivalent) file via e-mail, shall be deemed a manually executed physical writing.  No other course of conduct shall operate to waive, amend or modify the Agreement.  
11.6 Severability.  If any provision of the Agreement is held to be invalid, it shall either be: (a) reformed only to the extent necessary to make it enforceable, and such holding shall not affect the enforceability: (i) of such provision under other circumstances; or (ii) of the remaining provisions hereof under all circumstances; or (b) if such reformation is not possible, severed from the Agreement and the remainder of the Agreement shall continue in full force and effect.
11.7 Cumulative Remedies.  Except as expressly provided to the contrary herein, all remedies set forth in the Agreement are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise.
11.8 Survival.  Sections that by their nature, or to give effect to their meaning, must survive expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement.
11.9 Governing Law.  The Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, excluding its conflicts of laws principles.  Any controversy or claim arising out of or relating to the Agreement or the existence, validity, breach or termination thereof, whether during or after the term of the Agreement, will be brought in the federal or state courts having jurisdiction over Montgomery County, Pennsylvania, to whose exclusive jurisdiction the parties hereby irrevocably submit for such purposes.  
11.10 Entire Agreement.  These T&Cs, any SOs issued hereunder, and any schedules, exhibits and other incorporated attachments, constitute the complete and entire statement of all terms, conditions and representations of the agreement between Monetate and Client with respect to its subject matter and supersede all prior agreements, writings or understandings, whether oral or in writing.  In the event of any conflict between these T&Cs and any SO, the terms and conditions set forth in the SO shall prevail. No terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into, or form any part of, the Agreement, and all such terms or conditions shall be null and void.

Email Product Terms of Use

If you have ordered the Monetate Email Product the following terms shall be added after Section 6.4 of these T&Cs:

6.5 Email Terms and Conditions.

6.5.1 Transfer of E-mail Addresses.  Solely in connection with Client’s use of the email product purchased on the applicable SO (the “Email Product”), Monetate shall receive from Client (or from Client’s e-mail service provider (“ESP”) on Client’s behalf), either e-mail addresses of individuals or unique anonymous identifiers corresponding to e-mail addresses stored by Client or such ESP (in either case, the “E-mail Information”).  Client represents, warrants and covenants that the E-mail Information has been collected on behalf of Client and transferred to Monetate in accordance with Applicable Law and in a manner consistent with Client’s policies (including privacy policies) applicable at the time of such collection (collectively, “Client Policies”).  Client represents, warrants and covenants that the Client Policies are, and shall at all times during the Term be, consistent with Applicable Law. 

6.5.2 Client E-Mails Using the Email Product. Client shall, at all times, be in compliance with Applicable Law involving the sending of e-mails to individuals. Client acknowledges that Monetate has no control of, or access to, the content of any messages sent by Client utilizing the Email Product and that such control and access lies solely with Client and/or Client’s ESP.  Without application of any liability limitation set forth herein, Client shall indemnify, defend and hold harmless Monetate from and against all claims, suits and proceedings brought by third parties against Monetate and arising out of: (A) the content of the e-Mails sent by Client using the Email Product or (B) Client’s failure to comply with and adhere to Applicable Law and/or the Client Policies in connection with the collection and transfer of the E-mail Information and its use of the Email Product.

6.5.3 Certain Limitations. Client shall be solely responsible for the acts and omissions of any third party, including any ESP, engaged by Client in connection with Client’s use of the Email Product, and Client shall ensure that such third parties reasonably cooperate with Monetate, as necessary, in connection with Monetate’s provision of the Email Product hereunder.