MONITORIAL SERVICE TERMS AND AGREEMENT
These Service Terms and Agreement are an agreement (collectively, this “Agreement”) between Strata Labs, Inc., a California corporation (“Company”), and the individual or company using the Service identified in the Description section (“Customer”).
BY SIGNING UP TO ACCESS THE MONITORIAL SERVICE YOU ARE REPRESENTING THAT YOU ARE OVER THE AGE OF 18, HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND ARE CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, AS APPLICABLE, TO BE BOUND BY THIS AGREEMENT.
In consideration of the mutual promises contained in this Agreement, Company and Customer agree as follows:
Company runs a monitoring service intended for information technology, operations, and development teams that includes the features and functionality described at the monitorial.com web site (the “Site”) on the date of Customer account creation, as such features and functionality may change from time to time as provided in Section 4 (the “Service”). The Service is operated on Company hosting servers or those of its provider(s) to enable Customer and those of its employees who have been authorized by Customer (“Authorized Users”) to access and use the Service. (If Customer is an individual subscribing for personal use, the term Authorized User shall refer to him or her.)
This Agreement shall commence on the date of Customer account creation and, unless terminated early in accordance with Section 7 or 14 below, continue until Customer deletes the account via the account deletion mechanism provided within the Monitorial web console, with this time period collectively termed the “Service Period”.
3. Pricing and Fees.
Pricing and fees for the Monitorial service have not yet been determined and are subject to change without advance notice to Customer.
4. Service Access and Use Rights.
Subject to this Agreement, Company will make the Service available to Customer and Authorized Users during the Service Period and Company hereby grants to Customer, during the Service Period, a nonexclusive, nontransferable, limited right to enable Authorized Users to access and use the Service through the interface and the Site, and to access and use Company technical and operations documentation and Agents (as defined in Section 5) in support thereof, solely for Customer’s internal, business use. Company may delegate the performance of certain portions of the Service to third parties, but will remain responsible to Customer for delivery thereof. Company may in its discretion modify, enhance, or otherwise change the Service from time to time.
5. Agents; Third-Party Content.
Company will make various application program interfaces (APIs), agents, libraries, and other materials available at the Site, package repositories, or through the Service from time to time in its discretion to support Customer’s access and use of the Service (collectively, “Agents”). Customer acknowledges and agrees that: (a) the Agents may only be used on systems owned, leased, or primarily operated by Customer, (b) the Agents are made available solely to support access and use of the Service, and Company has no liability with respect to any other uses of the Agents, and (c) certain of the Agents may include third-party content that is subject to open source license terms that may expand or limit Customers’ rights to use such content. Customer agrees to review any electronic documentation that accompanies the Agents or is identified in a link provided to Customer to determine which portions of the Agents are open source and are licensed under open source license terms. To the extent any such license terms require that Company provide Customer the rights to copy, modify, distribute, or otherwise use any open source software in the Agents that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable open source license terms shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Further, Customer acknowledges and agrees that all third-party content is governed by its respective terms and such terms are solely between Customer and the applicable licensor. Customer agrees to comply with such third-party terms (including open source license terms), as applicable, and Company has no liability with respect to third-party content under this Agreement.
6. Restrictions and Limitations.
(a) Company has implemented commercially reasonable, industry-standard technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure. Company does not represent that it meets the standards for operational compliance or certification in any specific area, including any government or industry-association requirements.
(b) Customer is solely responsible for providing, installing, and maintaining at its own expense all equipment, facilities, and services necessary to enable Authorized Users’ access and use of the Service through the interface, including without limitation all computer hardware, software, and Internet access.
(c) Customer will use commercially reasonable efforts to ensure, through proper instructions and enforcement actions, that all access to and use of the Service by Customer or Authorized Users’, or otherwise through Customer’s facilities, equipment, identifiers, or passwords, will conform to this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party, or this Agreement. Customer is solely responsible for tracking and for ensuring the security and confidentiality of all user identifiers, email accounts, and passwords. Company has no liability with respect to any use or misuse of such identifiers, email accounts, or passwords, and any use thereof other than as provided in this Agreement will be considered a breach of this Agreement by Customer.
(d) Without limiting the generality of Sections 5 and 7, no provision of this Agreement includes the right to, and Customer will not, directly or indirectly: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) take any action that imposes, or may impose at Company’s discretion, an unreasonable or disproportionately large load on Company’s infrastructure; (iii) knowingly upload invalid data, viruses, worms, or other software agents through the Service; (iv) enable any person or entity other than Authorized Users to access and use the Service or Technology (as defined in Section 12(b)); (v) modify or create any derivative work based upon the Service or Technology; (vi) engage in, permit, or suffer to continue any copying or distribution of the Service or Technology; (vii) reverse engineer, disassemble, or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the Service or Technology; (viii) access the Service in order to build a competitive solution or to assist any third party to build a competitive solution; (ix) remove, obscure or alter any proprietary notice related to the Service or Technology; or (x) engage in, permit, or suffer to continue any use or other activity that is not expressly authorized under this Agreement by any person or entity within Customer’s control (“Unauthorized Use”). In the event Customer violates any of the terms set forth in this Section, in addition to any other remedies available at law or in equity, Company will have the right, in its discretion, to immediately suspend Customer’s and Authorized Users’ use and access to the Service.
7. Rights Grants to Company.
(a) In order to provide and support the Service for the benefit of Customer, Customer hereby grants Company a worldwide, non-exclusive, royalty-free license during the Service Period to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, and archive the data, text, software, audio, video, images or other content that Customer and/or any Authorized User run on or through the Service, cause to interface with the Service, upload to the Service, or otherwise transfer, process, use or store in connection with the Service (collectively “Customer Data”). Customer agrees that, so long as no Customer Confidential Information is publicly disclosed, Company may: (i) use Customer Data to refine, supplement, or test Company’s product and service offerings; (ii) include aggregated and anonymized Customer Data in any publicly available reports, analyses, and promotional materials; and (iii) retain anonymized, non-attributable Customer Data following any termination of this Agreement for use in connection with the foregoing.
(b) During the Service Period, Company may list Customer as a customer and use Customer’s name and logo on the Site, on publicly available customer lists, and in media releases.
8. Proprietary Rights.
(a) Subject only to the limited rights expressly granted in this Agreement, as between Customer and Company, Customer shall retain all right, title, and interest in and to the Customer Data and all intellectual property rights therein. Customer is solely responsible, and Company assumes no liability, for the Customer Data that Authorized Users or other third parties post, send, or otherwise make available over or through the Service.
(b) As used in this Agreement, “Technology” means any and all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, libraries, user manuals, documentation, products, or other technology and materials of any kind, or any enhancement thereto, used by Company in connection with the performance of the Service, or made available by Company to Customer, any Authorized User or any third party in connection with the Service. Without limiting the foregoing, Technology includes the products, services, and technology made available through the Site, the Service interface, and any Company branded or co-branded web sites (including sub-domains, widgets, and mobile versions).
(c) The Service and Technology constitute or otherwise involve valuable intellectual property rights of Company and all right, title, and interest in and to the foregoing shall, as between the parties, be owned by Company. No title to or ownership of the Service or Technology, or any intellectual property rights associated therewith, is transferred to Customer, any Authorized User, or any third party under this Agreement. Sections 4 and 5 set forth the entirety of Customer’s limited rights to access and use the Service and Agents and to make the Service and Agents available to Authorized Users. Except with respect to certain of the Agents, in no event shall Customer be entitled to access or review any object code or source code. Company reserves all rights to the Service and Technology not otherwise expressly granted herein.
(a) As used in this Agreement, “Confidential Information” means any information that is proprietary or confidential to the Discloser (as defined below) or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature. However, Confidential Information does not include any information that: (i) was known to the Recipient (as defined below) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the Recipient.
(b) Each party reserves any and all right, title and interest (including any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The party that receives any Confidential Information (the “Recipient”) of the other party (the “Discloser”) will protect Confidential Information of the Discloser against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against Unauthorized Use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit: (i) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (ii) any use or disclosure required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or (iii) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section 8(b), the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. The obligations of confidentiality shall survive expiration or termination of this Agreement.
10. Early Service Termination.
(a) Either party may terminate this Agreement prior to the end of the Service Period in the event of a material breach of this Agreement by the other party if such other party fails to correct such breach within 30 days of notice.
(b) In addition to the rights under Section 9(a), Company may terminate this Agreement immediately upon notice to Customer (i) if Customer breaches any provisions of Section 4, 5, or 6, or (ii) in order to comply with applicable laws or regulations.
11. Effect of Expiration or Early Service Termination.
(a) Upon expiration or earlier termination of this Agreement: (i) any and all rights granted to Customer with respect to the Service and Technology, and except as set forth in Section 7 any and all rights granted to Company with respect to the Customer Data, will terminate effective as of the effective date of termination; (ii) Customer will return to Company any and all Confidential Information of Company in the possession or control of Customer; (iii) subject to Section 11(b), Company will return to Customer any and all Confidential Information of Customer in its possession or control; and (iv) Company will have no obligation to provide the Service to Customer or Authorized Users after the effective date of the termination. This Section 11, Sections 6 through 8, and Sections 12 through 15 shall survive the expiration or earlier termination of this Agreement.
(b) Company’s only obligation with respect to any electronic information transmitted or received by Customer or Authorized Users in relation to Customer’s and Authorized User’s use of the Service is, upon Customer’s request, to promptly delete or destroy the information that is stored, if any, in the Service database on the effective date of termination. Customer acknowledges that although information in the Service database will be deleted from its transaction servers, Company may retain such information stored on automatic backup archiving systems during the period such backup or archived materials are retained under Company’s customary procedures and policies. In addition, Company may retain certain information as provided in Section 7(a)(iii).
12. Representations and Indemnities.
(a) Customer hereby represents and warrants to Company that Customer has the authority to enter into and perform this Agreement and the Customer’s entering into this Agreement, and performance of its obligations and exercise of its rights under this Agreement, do not and will not violate any applicable laws, regulations or orders.
(b) Customer hereby represents, warrants, and covenants that, without limiting the foregoing: (i) Customer or its licensors owns all right, title, and interest in and to Customer Data; (ii) Customer has all rights in Customer Data necessary to grant the rights contemplated by this Agreement; and (iii) Customer has obtained any necessary third-party approvals, including without limitations applicable vendors and licensors, in relation to third-party content to be used by Customer in connection with the Service or will obtain such approvals prior to such use.
(c) Customer agrees to defend, indemnify and hold harmless Company and its employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) arising out of or related to: (i) Customer’s and Authorized Users’ use of and access to the Service; (ii) Customer’s or an Authorized User’s violation of any term of this Agreement; (iii) Customer’s or an Authorized User’s violation of any third-party right, including without limitation any right of privacy, publicity rights, or intellectual property rights; (iv) Customer’s or an Authorized User’s violation of any law, rule, or regulation; (e) any claim or damages that arise as a result of any Customer Data; or (v) any other party’s access and use of the Service with provided identifier(s) and password(s).
(d) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, TECHNOLOGY, AND ALL OTHER ITEMS PROVIDED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INFRINGEMENT, OR NONCOMPLIANCE IN THE SERVICE, TECHNOLOGY, OR ANY OTHER ITEMS PROVIDED BY, THROUGH, OR ON BEHALF OF COMPANY UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).
13. Limitations of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, DIRECTORS, EMPLOYEES, OR ITS VENDORS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICE; PROVIDED, HOWEVER, THAT SUCH LIMITATIONS SHALL NOT APPLY TO: (I) DAMAGES ARISING OUT OF A PARTY’S FAILURE TO COMPLY WITH ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9; (II) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12(c); OR (III) CUSTOMER’S PAYMENT OBLIGATIONS TO COMPANY.
(b) UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT(S) OR THE INFORMATION CONTAINED THEREIN. COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SERVICE; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (IV) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (IV) CUSTOMER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. EXCEPT FOR THEIR RESPECTIVE INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE FEES CUSTOMER PAID TO COMPANY HEREUNDER.
(c) THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
14. Dispute Resolution.
In the event of any dispute or disagreement between the parties with respect to the interpretation of any provision of this Agreement, or with respect to the performance of either party hereunder, Customer and Company will meet for the purpose of resolving the dispute. If the parties are unable to resolve the dispute within five (5) working days, or as otherwise agreed, the parties may mutually agree to appoint a neutral advisor to facilitate negotiations and, if requested by both parties, to render non-binding opinions. No formal proceedings for the judicial resolution of any dispute may be commenced until sixty (60) calendar days following initiation of negotiations under this Section or for such shorter period as the parties may mutually agree to in writing. Either party may then seek whatever remedy is available in law or in equity. The provisions of this Section will not apply to any dispute relating to the parties’ obligations of non-disclosure and confidentiality as further described herein.
(a) Customer may not delegate, assign, or transfer this Agreement or any of its rights and obligations under this Agreement and any attempt to do so shall be void.
(b) Company may send Customer, in electronic form, information about the Service, additional information, and any information the law requires Company to provide. Customer acknowledges and agrees that Company may provide notices to Customer by email at the address Customer uses to access the account and Service or by access to a web site that Company identifies. Notices emailed to Customer will be deemed given and received when the email is sent. If Customer does not consent to receiving notices electronically, Customer and its Authorized Users must stop using the Service. Customer may provide legal notices to Company via registered mail, return receipt requested, to the following address: Strata Labs, Inc., Attn: Legal Notice, 23679 Calabasas Rd Ste 972, Calabasas, CA 91302, or such other address as Company may direct from time to time on the Site. Customer must specify in all such notices that the notice is being given under this Agreement.
(c) The Service is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service. If Customer or any Authorized User is using the Service on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer and its Authorized Users must immediately discontinue use of the Service. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
(d) In connection with this Agreement, Customer will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, Customer is solely responsible for compliance related to the manner in which Customer chooses to use the Service, including the transfer and processing of Customer Data.
(e) The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one party as an employee, agent, joint venture partner, or servant of another.
(f) Company shall have no liability to Customer, Authorized Users, or third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including without limitation acts of God or nature, fires, floods, strikes, civil disturbances, or terrorism or interruptions in power, communications, satellites, the Internet, or any other network that are beyond its reasonable control.
(g) This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles.
(h) This Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. In the event any information posted on the Site from time to time conflicts with any provision of this Agreement, the applicable provision of this Agreement shall control. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Any affiliate of Customer shall be deemed a third party for purposes of this Agreement. This Agreement may be modified only by a written instrument duly executed by authorized representatives of the parties. Any waiver by either party of any condition, term, or provision of this Agreement shall not be construed as a waiver of any other condition, term, or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect.