Master ASP AgreementRevision 01-02-2017.
RFPMonkey.com LLC TERMS OF SERVICE:
WHEN YOU CLICK THE "SUBMIT REQUEST" BUTTON ON THIS PAGE, YOU ARE CONFIRMING THAT YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT (THE "AGREEMENT") GOVERNING YOUR USE OF THE RFPMonkey.com LLC SERVICE (THE "SERVICE") AND THE RFPMonkey.com LLC WEB SITE (THE "SITE"). IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU MUST POSSESS SUFFICIENT LEGAL AUTHORITY AND/OR COMPANY STANDING TO BIND SUCH COMPANY OR LEGAL ENTITY TO THE TERMS AND CONDITIONS SET FORTH HEREIN. RFPMONKEY.COM LLC AND YOU ARE INDIVIDUALLY HEREINAFTER REFERRED TO AS A "PARTY" AND COLLECTIVELY AS THE "PARTIES". YOU MAY ONLY ENTER INTO THIS AGREEMENT, BY CLICKING "SUBMIT REQUEST", IF YOU HAVE SUCH AUTHORITY AND IF YOU AGREE TO ALL OF THE TERMS AND CONDITIONS HERE STATED. OTHERWISE, YOU MUST CLICK THE "CANCEL REQUEST" BUTTON AND WILL NOT BE ENTERED INTO THE AGREEMENT AND WILL NOT BE ALLOWED TO ACCESS THE APPLICATION.
Upon agreeing to the terms and conditions of this Master Service Agreement, RFPMonkey.com LLC will provide you with use of the RFPMonkey.com LLC web site (the "Site") and RFPMonkey.com LLC Service (the "Service"), including a web browser interface, access and storage of data. Use of the Site or Service shall be deemed to represent your continued agreement to be bound by this Agreement.
1. Electronic Signature(s)
You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the RFPMonkey.com. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
2. Privacy Disclosure
3. License Grant & Restrictions
RFPMonkey.com LLC hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you in and in the Service are reserved by RFPMonkey.com LLC and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service; (ii) modify or make derivative works based upon the Service; (iii) create Internet "links" to the Service or "frame" or "mirror" any portion of the Service on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not knowlingly: (i) store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iii) attempt to gain unauthorized access to the Service or its related systems or networks.
4. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify RFPMonkey.com LLC promptly upon learning of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to RFPMonkey.com LLC promptly and use reasonable efforts to stop immediately any unauthorized copying or distribution of content that is known or suspected by you or your Users; and (iii) not impersonate another RFPMonkey.com LLC user or provide false identity information to gain access to or use the Service.
5. Intellectual Property Ownership of Account Information and Data
RFPMonkey.com LLC does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not RFPMonkey.com LLC, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of, and shall own all right, title and interest, including all related Intellectual Property Rights, in and to Customer Data, and RFPMonkey.com LLC shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Users within your organization with sufficient privileges can export your Customer Data at any time. RFPMonkey.com LLC reserves the right to withhold, remove and/or discard Customer Data for any breach, including, without limitation, your non-payment, after notification of such breach and if not cured within 30 days of notification of such breach. Upon termination for cause, your right to access or use Customer Data immediately ceases, and RFPMonkey.com LLC shall have no obligation to maintain or forward any Customer Data.
RFPMonkey.com LLC agrees, understands and acknowledges that Customer Data is your confidential and proprietary information. RFPMonkey.com LLC shall treat all Customer Data with the same degree of care as it accords to its own confidential information and, in any case, no less than a reasonable degree of care. RFPMonkey.com LLC shall use such Customer Data solely for the purposes for which it is provided by you and will not disclose such Customer Data to any third party.
6. Intellectual Property Ownership
RFPMonkey.com LLC alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the RFPMonkey.com LLC Technology, the Service and shall have the right to use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you (other than Customer Data) or any other party relating to the Service (other than Customer Data). This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the RFPMonkey.com LLC Technology or the Intellectual Property Rights owned by RFPMonkey.com LLC. The RFPMonkey.com LLC name, the RFPMonkey.com LLC logo, and the product names associated with the Service are trademarks of RFPMonkey.com LLC or third parties, and no right or license is granted to use them.
7. Third Party Links
The Service and/or the Site may include web links to third-party web sites or companies. During use of the Site or Service, you may click these links, taking you to a web site not owned or controlled by RFPMonkey.com LLC. If you use such links, enter into correspondence with, purchase goods and/or services from, or participate in promotions of these third-party links' companies, any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. RFPMonkey.com LLC and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. RFPMonkey.com LLC does not endorse any sites on the Internet that are linked through the Service. RFPMonkey.com LLC provides these links to you only as a matter of convenience, and in no event shall RFPMonkey.com LLC or its licensors be responsible for any content, products, or other materials on or available from such sites. RFPMonkey.com LLC provides the Service to you pursuant to the terms and conditions of this Agreement.
8. Charges and Payment of Fees
You shall pay all fees or charges to your account within forty-five (45) days of receipt of a correct invoice. A correct invoice is an invoice that accurately reflects the desired product(s), options, account level, account term (duration), and optional services requested by you; and that accurately reflects the pricing of such products, services, and options as published on the pricing details page of www.RFPMonkey.com. The initial charges will be based on the service level (Silver, Gold, Platinum, Enterprise, Enterprise Plus) established for your account. Payments may be made quarterly, annually or biennially (every 2 years), consistent with the Initial Term, or as otherwise mutually agreed upon. You are responsible for paying for the selected level of service for the entire License Term, whether or not the number of users or the number of entries reaches the selected service level's maximums. An authorized License Administrator may add licenses by executing an additional written Order Form or using the Online Order Center. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. RFPMonkey.com LLC reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email. All pricing terms are confidential, and you agree not to disclose them to any third party.
Customer is responsible for any taxes and/or customs duties (other than income taxes payable by Seller), and Customer will pay RFPMonkey.com LLC for the Services without any reduction for such amounts. If RFPMonkey.com LLC is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides RFPMonkey.com LLC with a valid tax exemption certificate authorized by the appropriate taxing authority.
10. Billing, Renewal and Auto-termination
RFPMonkey.com LLC charges and collects in advance for use of the Service. RFPMonkey.com LLC will not automatically renew your service at the end of the service term. RFPMonkey.com LLC will notify you of service expiration near the end of your service term. Such notifications may be made via any/all of the following: (a) email to the contact specified on your account, (b) postal mail to the physical address for your account, (c) automated message displayed within the Service. Accounts that are not renewed prior to the recorded expiration date will be disabled and may be permanently erased. The renewal charge will be equal to the current service level's fee in effect at the time of the renewal. Fees for other services will be charged on an as-quoted basis. RFPMonkey.com LLC's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on RFPMonkey.com LLC's income.
You agree to provide RFPMonkey.com LLC with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, RFPMonkey.com LLC reserves the right to terminate your access to the Service in addition to pursuing any other available and applicable legal remedies.
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
11. Non-Payment and Suspension
In addition to any other rights granted to RFPMonkey.com LLC herein, RFPMonkey.com LLC reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for Service fees during any period of suspension. If you or RFPMonkey.com LLC initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that RFPMonkey.com LLC may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
RFPMonkey.com LLC reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that RFPMonkey.com LLC has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
12. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The Initial Term is one year or as otherwise mutually agreed upon, commencing on the date you agree to pay for the Service by completing the online subscription form or otherwise. Upon the expiration of the Initial Term, this Agreement will not automatically renew for successive renewal terms. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. You agree and acknowledge that RFPMonkey.com LLC has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
13. Termination for Cause
Any breach of your payment obligations or unauthorized use of the RFPMonkey.com LLC Technology or Service will be deemed a material breach of this Agreement. RFPMonkey.com LLC, in its sole discretion, may terminate your password, account or use of the Service if you materially breach or otherwise fail to materially comply with this Agreement. In addition, RFPMonkey.com LLC may terminate a free or trial account at any time in its sole discretion. You agree and acknowledge that RFPMonkey.com LLC has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
14. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. RFPMonkey.com LLC represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online RFPMonkey.com LLC help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
Any breach of RFPMonkey.com LLC's representations and warranties or obligations will be deemed a material breach of this Agreement. You will have the right to terminate for any such material breach and RFPMonkey.com LLC will provide a pro-rated refund of the fees paid for the then current term.
15. Mutual Indemnification
You shall indemnify and hold RFPMonkey.com LLC, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors and employees harmless from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a third-party claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; or (ii) a third-party claim, which if true, would constitute a breach by you of your express representations and warranties; or (iii) a third-party claim arising from the breach by you or your Users of this Agreement, provided in any such case that RFPMonkey.com LLC shall (a) give written notice of the claim promptly to you; (b) give you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release RFPMonkey.com LLC of all liability and such settlement does not affect RFPMonkey.com LLC's business or Service); (c) use its reasonable best efforts to provide to you all available information and assistance; and (d) has not compromised or settled such claim.
RFPMonkey.com LLC shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees harmless from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a third-party claim alleging that the Service infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a third-party claim, which if true, would constitute a breach by RFPMonkey.com LLC of its representations or warranties or confidentiality obligations herein; or (iii) a third-party claim arising from breach of this Agreement by RFPMonkey.com LLC. You shall (a) promptly give written notice of the claim to RFPMonkey.com LLC; (b) give RFPMonkey.com LLC sole control of the defense and settlement of the claim (provided that RFPMonkey.com LLC may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to RFPMonkey.com LLC all available information and assistance; and (d) have not compromised or settled such claim. RFPMonkey.com LLC shall have no indemnification obligation, and you shall indemnify RFPMonkey.com LLC pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
16. Disclaimer of Warranties
EXCEPT AS OTHERWISE PROVIDED HEREIN, RFPMonkey.com LLC AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. EXCEPT AS OTHERWISE PROVIDED HEREIN, RFPMonkey.com LLC AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. EXCEPT AS OTHERWISE PROVIDED HEREIN, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY RFPMonkey.com LLC AND ITS LICENSORS.
17. Internet Delays
RFPMonkey.com LLC'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND NOT WITHIN THE CONTROL OF RFPMonkey.com LLC. RFPMonkey.com LLC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
18. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
20. Local Laws and Export Control
The Site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of the Site ("User") acknowledges and agrees that the Site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
The Site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
RFPMonkey.com LLC and its licensors make no representation that the Service is appropriate or available for use in other locations outside of the United States. If you use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
RFPMonkey.com LLC may give notice by means of a general notice on the Service, electronic mail to your email address on record in RFPMonkey.com LLC's account information, or by written communication sent by first class mail or pre-paid post to your address on record in RFPMonkey.com LLC's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to RFPMonkey.com LLC (such notice shall be deemed given when received by RFPMonkey.com LLC) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to RFPMonkey.com LLC at the following address: RFPMonkey.com LLC, 2114 W. Grant Rd., Suite 177, Tucson AZ 85745 addressed to the attention of: Chief Financial Officer.
22. Modification to Terms
RFPMonkey.com LLC reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
23. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of RFPMonkey.com LLC but may be assigned without your consent by RFPMonkey.com LLC to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of RFPMonkey.com LLC directly or indirectly owning or controlling 50% or more of you shall entitle RFPMonkey.com LLC to terminate this Agreement for cause immediately upon written notice.
With respect to U.S. Customers, this Agreement shall be governed by Arizona law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction and venue of the state and federal courts located in Tucson, Arizona. With respect to Non-U.S./Japan Customers, this Agreement shall be governed by the laws of Switzerland, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Switzerland. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and RFPMonkey.com LLC as a result of this Agreement or use of the Service. The failure of RFPMonkey.com LLC to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by RFPMonkey.com LLC in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and RFPMonkey.com LLC and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Copyright (c) 2006-2017 RFPMonkey.com LLC. All rights reserved.