Terms and Conditions
- Services. Subject to the timely payment of all applicable fees, Control Monkey will provide Customer with cloud infrastructure management services based on Control Monkey’s proprietary cloud infrastructure and automated software deployment solution (the “Services”) and mapping of the Customer’s cloud resources and deployment to the cloud created as part of the Services (“Deliverables”), all as further detailed in the applicable Order Form. Control Monkey hereby grants the customer the right to access the solution and use the Services for its own internal use and purpose, during the Term set out in the Order Form.
- Warranties and Representations. Each party hereby warrants and represents that it is authorized to enter into this Agreement. Customer warrants and represents that it has all rights and has obtained all permits, consents and authorizations and has no limitations, obligations or restrictions whatsoever which restrict or prevent Customer from providing Control Monkey with the information, source of root and credentials required for the purpose of providing the Services and for the performance of the Services and creation of the Deliverables (including but not limited to the mapping of Customer’s cloud resources and automating the deployment to the Customer’s cloud by software).
- Payment. In consideration for the Services and rights to the Deliverables, Customer shall pay ControlMonkey the fees set forth in the Order Form. Customer shall pay all fees under the payment terms set out in the Order Form. The fees are exclusive of VAT, sales tax or other taxes, which will be borne by Customer (except for taxes on ControlMonkey’s income). Without prejudice to its other remedies, ControlMonkey shall have the right to charge interest on any overdue invoices at the rate of 1½% per month (or the maximum rate permitted under applicable law, if lower) from the date when payment of the invoice becomes due for payment up to and including the date of actual payment.
- Confidential Information; Personal Information. During the term of the Agreement each party may have access to certain non-public or proprietary information or materials of the other party (the “Recipient” and the “Discloser“, respectively), whether in tangible or intangible form (“Confidential Information“). Without derogating from the foregoing, information regarding Customer’s cloud resources, including Customer’s login credentials and source of root shall be deemed as Customer Confidential Information and the information regarding ControlMonkey Solution and methods of performing the Services shall be deemed as ControlMonkey Confidential Information. Confidential Information will not include information or material which the Recipient can demonstrate: (a) was in the public domain at the time of disclosure by Discloser to the Recipient hereunder; and/or (b) became part of the public domain after disclosure by Discloser to the receiving party hereunder, through no fault of the Recipient; (c) was in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and was not subject to prior continuing obligations of confidentiality by the Recipient to Discloser; (d) was rightfully disclosed to the Recipient by a third party having the lawful right to do so; and/or (e) was independently and rightfully developed by the Recipient without (direct or indirect) use of, or reliance upon, Discloser’s Confidential Information. In the event that Recipient is required to disclose Confidential Information of Recipient pursuant to any law or governmental or judicial order, Recipient will promptly notify Discloser in writing of such law or order and reasonably cooperate with Discloser in opposing such disclosure or obtaining such other protective measures. In any event, such disclosure made pursuant to this paragraph will be made solely to the extent required by such law or order (as the case may be). Recipient will use Discloser’s Confidential Information solely for the purpose of performing its obligations and/or exercising its rights under this Agreement and will not disclose Confidential Information to any third party, except to its employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. Recipient will take measures at a level at least as protective as those taken to protect its own confidential information of like nature, but in no event less than a reasonable level, to protect Discloser’s Confidential Information. Recipient will promptly notify Discloser in writing in the event of any actual or suspected unauthorized use or disclosure of any Discloser Confidential Information.
- The materials provided by Customer to ControlMonkey, Customer’s Confidential Information and the Deliverables shall be owned by Customer.
- ControlMonkey’s solution and methods of performing the Services, all right title and interest in and to the ControlMonkey Services, the Confidential Information, and all improvements, enhancements and derivatives of any of the foregoing and all intellectual property rights thereto (“ControlMonkey IPR“) are exclusively owned by ControlMonkey and/or its licensors. All feedback and suggestions provided to ControlMonkey regarding the Solution or the Services shall be deemed as ControlMonkey IPR. This Agreement does not convey to Customer any right, title or interest in the ControlMonkey IPR.
- ControlMonkey shall defend Customer against any third party claim or demand alleging that the ControlMonkey technological solution infringes the intellectual property rights of a third party (for the purposes of this Section, “Claim”). ControlMonkey shall indemnify and hold Customer harmless against any damage, loss or liability arising from a Claim and finally awarded in judgment or agreed in settlement.
- Customer shall defend ControlMonkey against any third party claim or demand: (i) alleging that any materials provided by Customer infringe any rights of any third party or trigger any payment obligations; or (ii) breach of Customer’s warranties as set forth in Section 2 (for the purposes of this Section, “Claim”). Customer shall indemnify and hold ControlMonkey harmless against any damage, loss or liability arising from a Claim and finally awarded in judgment or agreed in settlement.
- The indemnified party shall: notify the indemnifying party of a Claim, promptly after becoming aware thereof; render full control over the defense and settlement of the Claim to indemnifying party; and provide reasonable assistance in the defense at indemnifying party’s expense.
- Disclaimer. EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONTROLMONKEY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT. CONTROLMONKEY DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOLUTION.
- Limitation of Liability. EXCEPT FOR CLAIMS ARISING FROM BREACH OF CONFIDENTIALITY, THE INDEMNIFICATION OBLIGATION HEREIN OR MISAPPROPRIATION OF CONTROLMONKEY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE, UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR LOSS OF DATA. EXCEPT FOR CLAIMS ARISING FROM BREACH OF CONFIDENTIALITY AND THE INDEMNIFICATION OBLIGATION HEREIN, CONTROLMONKEY’S AND/OR ITS AFFILIATE’S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO CONTROLMONKEY HEREIN DURING THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
- Term and Termination. This Agreement shall be in force for the term set forth in the Order Form, either party may terminate this Agreement in the event of breach by the other upon a thirty (30) days’ notice, unless the breach is cured during the notice period. Upon termination or expiration of this Agreement each party shall immediately delete or return, at Discloser’s discretion, all Confidential Information of the Discloser. Any fees paid by the Customer until the date of termination are non-refundable, and it shall not be relieved of its duty to discharge in full all due fees owed by it to Control Monkey under this Agreement, which fees shall become immediately due and payable on the date of termination of the Agreement. Notwithstanding the termination or expiration of this Agreement, Sections 2-11 shall survive and remain in effect in perpetuity.
- (i) This Agreement and the Order Form is the entire agreement between Customer and ControlMonkey in respect of the subject matter herein and this Agreement shall not be modified except as provided herein; (ii) This Agreement is governed by the laws of Israel without regard to conflict of laws provisions thereof. The competent courts of Tel Aviv-Jaffa, Israel shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement and both parties hereby irrevocably submit themselves to the exclusive jurisdiction of those courts; (iii) neither party may assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement to any third party without the prior written consent of the other party. Any unauthorized assignment will be void and of no force or effect. Notwithstanding the foregoing, ControlMonkey may assign and transfer all of its rights and obligations herein in connection with a merger, consolidation, reorganization or sale of all or substantially all of its assets; (iv) unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Customer and ControlMonkey, any rights, remedies or other benefits under or by reason of the Agreement; (v) no failure or delay by either party in exercising any right, power or remedy shall operate as a waiver thereof. Waivers must be explicit and in writing; and (vi) The relationship established between ControlMonkey and Customer by this Agreement is solely that of independent contractors. Customer is not the agent or legal representative of ControlMonkey and no employee of Customer shall be considered to be an employee of ControlMonkey for any purposes whatsoever. ControlMonkey shall not be liable for any expenses incurred by Customer which arise out of or in connection with the Agreement.