Terms of Service

Terms of Service: Monogold Apps

Effective Date:

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED” TO THE TERMS ONLINE, OR BY SIGNING THE TERMS OFFLINE USING THE OFFLINE ACCEPTANCE FORM, EACH CUSTOMER AGREES TO THESE TERMS OF SERVICE.

These Terms of Service constitute an agreement (this “Agreement”) by and between Monogold Limited (“Monogold”) and a customer of Monogold’s online Monogold Apps service (“You”).

1. Definitions

“Account” means the account information pertaining to Your use of the Service, including details of Your identity, profile and contact information, Effective Date, Commencement Date, Renewal Date, Subscription Period, Pricing Period, Order Documents and invoices, Subscriptions, Authorized Representatives, designated contact persons, Users, and Designated User Contacts (as defined in the Service Level Agreement). The Account is accessible via the Service or via Monogold’s Website.

“Agreement” refers to these Terms of Service.

“Acceptable Use Policy” means Monogold’s acceptable use policy, posted on Monogold’s Website, as such policy may change from time to time.

“Authorized Representative” refers to a person who has legal authority to act on behalf of the parties of this Agreement, as identified by each party prior to entering into this Agreement.

“Commencement Date” means the date on which the Service is first available for live production use by You, as agreed between the parties and as stated on the initial Order Document.

“Data and Security Policy” means Monogold’s standard data and security policy, posted on Monogold’s Website, as such policy may change from time to time.

“Documentation” means Monogold’s application user guides, documentation, and help and training materials, as such materials may change from time to time, accessible via Monogold’s Website or by sign-in to the Service.

“Effective Date” means the date You first accept this Agreement.

“Feedback” means information in the form of suggestions, comments, advice, ideas, and criticism related to the Service provided to Monogold by You or Users.

“Materials” means content provided to You by or through the Service, including, without limitation, text, code, videos, audio, music, images, photographs, drawings, designs, and illustrations, whether provided by Monogold, or another customer of the Service, or any other third party, or obtained by Monogold from publicly available sources.

“Monogold’s Website” means Monogold’s global Internet address, www.monogold.com, as Monogold may change such website address from time to time, sending You written notice thereof.

“Order Document” means an ordering document between You and Monogold detailing the scope and specifics of the Services to be provided under this Agreement, as they may change from time to time.

“Pricing Period” means the period of time that the unit prices for Subscriptions shall apply, as agreed between the parties and as stated in Order Documents. The end date of a Pricing Period will always fall on the end date of a Subscription Period.

“Privacy Policy” means Monogold’s privacy policy, posted on Monogold’s Website, as such policy may change from time to time.

“Renewal Date” means the date on which Subscriptions are renewed for a period of time equal to the Subscription Period.

“Service” means Monogold’s Monogold Apps service, and in the context of this Agreement the specific services provided through the Subscriptions purchased by You. The Service includes such features and capabilities as are stated in the Order Documents or their addenda and as described in the Documentation, as Monogold may change such features and capabilities from time to time, in its sole discretion.

"Service Fees" means fees for Subscriptions and other Service-related fees as specified in the Order Documents.

“Service Level Agreement” means Monogold’s service level agreement, posted on Monogold’s Website, as such service level agreement may change from time to time.

“Subscription” means a purchased item of scoped software application and content services available within Monogold Apps that expires at the end of a Subscription Period. Each Subscription has a stated price per unit and an associated quantity (often a User quantity), and may be limited in usage by a collection of Users or user types/contexts.

“Subscription Period” means the period of time between the Commencement Date and the day before the first Renewal Date, or subsequent to the first Renewal Date, the period of time between the previous Renewal Date and the day before the next Renewal Date, as stated in the Order Documents.

"You", "Your" means the company or organization or other legal person for which You are accepting this Agreement and to which the Services provided under this Agreement are limited to.

“Your Data” means content provided, transmitted, or displayed via the Service by You or by Users or by Monogold on Your behalf, including also any custom cascading style sheet ("CSS") files that are specific to Your styling of the Service; but excluding any content in the Account, and excluding any Materials.

“Public User” means an individual of the general public who is enabled by You to use a part of the Service through a public Internet address (a public website) that does not require sign-in with user credentials.

“Private User” means a named individual who is authorized by You to use the Service through a user account requiring sign-in with user credentials, where any limitation in the scope and type of such individuals is stated in the Order Documents.

“User” means both a Private User and a Public User.

2. Service and Payments

2.1. Service. Monogold (i) will provide the Service to You pursuant to this Agreement, the applicable Order Documents, and to its standard policies and procedures, (ii) will provide its standard customer support for the Service to You in accordance with the Service Level Agreement at no additional charge, and (iii) may make new features or functionality available from time to time through the Service at no additional charge.

2.2. Payments. You will pay Monogold such Service Fees as specified in the Order Documents and their associated invoices in accordance with the terms of payment therein stated, and You recognize and agree that (i) payments due cannot be cancelled and that fees already paid are non-refundable; (ii) Subscriptions added within the Subscription Period are invoiced in advance at the time they are added for a prorated period until the end of the Subscription Period; (iii) all Subscriptions are invoiced in advance initially at the Effective Date and subsequently on the Renewal Date; and (iv) failure by You to settle any outstanding invoice amount within 30 days of an invoice’s settlement date may result in a suspension of the Service until full settlement has been received by Monogold.

3. Subscriptions and Pricing

3.1. Subscriptions. During the current Subscription Period, You: (i) can increase the quantity of an existing Subscription at the same unit price as the underlying existing Subscription, (ii) can add new Subscriptions with a different software application and content scope at a unit price specified in the applicable price list, or as otherwise agreed between the parties, (iii) cannot decrease the quantity of an existing Subscription. At the Renewal Date, You can add new Subscriptions and increase or decrease the quantity of existing Subscriptions, and such changes will then be effective in the new Subscription Period.

3.2 Pricing. When the Pricing Period extends beyond the current Subscription Period, the unit price for an existing Subscription shall remain the same for the next Subscription Period following the Renewal Date. When the end date of the Pricing Period is the same as the end date of the current Subscription Period, the per unit pricing for an existing Subscription shall remain the same for the next Subscription Period following the Renewal Date unless Monogold has given You written notice of a price change at least 60 days before the Renewal Date.

4. Service Level Agreement

In the event of any failure to meet the “Service Availability” metric (as that term is defined in the Service Level Agreement), Monogold will issue You such “Service Credits” (as that term is defined in the Service Level Agreement), as are required by the Service Level Agreement. Service Credits issued pursuant to the Service Level Agreement apply to outstanding or future payments only and are forfeited upon termination of this Agreement. Monogold is not required to issue refunds or to make payments against such Service Credits under any circumstances, including without limitation termination of this Agreement. Service Credits issued pursuant to the Service Level Agreement are Your sole remedy for the “Service Availability” metric failure in question. The Service Level Agreement is hereby incorporated into this Agreement.

5. Materials, Software, Intellectual Property, and Feedback

5.1. Materials. You recognize and agree that: (i) the Materials are the property of Monogold or our licensors or their rightful owners and are protected by copyright, trademark, and other intellectual property laws; and (ii) You do not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Your use of the Service.

5.2. Intellectual Property in General. Monogold retains all right, title, and interest in and to the Service, including without limitation all software created by Monogold to provide the Service and all logos and trademarks property of Monogold and reproduced through the Service, and this Agreement does not grant You any intellectual property rights in or to the Service or any of its components.

5.3. Third Party Acknowledgements. Portions of the Service utilize free ("open source") software products and libraries and Your use of such material is governed by their respective terms. Acknowledgements, licensing terms, and source code access for such material are contained in the Documentation.

5.4. Feedback. Any Feedback that You or Users provide to Monogold about the Service may be used by Monogold without obligation to You, and You hereby irrevocably assigns to Monogold all right, title, and interest in that Feedback.

6. Online Policies

6.1. Acceptable Use Policy. You will comply with the Acceptable Use Policy and You are responsible to ensure that all Users comply with Your obligations under the Acceptable Use Policy. In the event of Your material breach of the Acceptable Use Policy, including without limitation any copyright infringement, Monogold may suspend or terminate Your access to the Service, in addition to such other remedies as Monogold may have at law or pursuant to this Agreement. Neither this Agreement nor the Acceptable Use Policy requires that Monogold takes any action against You for violating the Acceptable Use Policy, but Monogold is free to take any such action Monogold sees fit.

6.2. Privacy Policy. The Privacy Policy applies only to the Service and does not apply to any third party site or service linked to the Service or recommended or referred to through the Service or by Monogold’s employees.

7. Data and Usage

7.1. Data Access, Data Use, and Data Legal Compulsion. Unless Monogold receives Your prior written consent, Monogold: (i) will not access or use Your Data other than as necessary to facilitate the Service; and (ii) will not give any third party access to Your Data. Notwithstanding the foregoing, Monogold may disclose Your Data as required by applicable law or by proper legal or governmental authority. Monogold will give You prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure, at Your expense.

7.2. Your Data Rights. You possess and retain all right, title, and interest in and to Your Data, and Monogold’s use and possession thereof is solely as Your agent.

7.3. Data Retention and Deletion. Monogold will retain all Your Data until erased pursuant to the Data and Security Policy.

7.4. Usage Responsibilities. You shall (i) ensure that Users comply with this Agreement, (ii) be responsible for the accuracy, quality, and legality of Your Data and any transmission thereof, (iii) use reasonable efforts to prevent unauthorized access to the Service and notify Monogold if you suspect or have proof of such unauthorized access, (iv) use the Service only in accordance with the Documentation and its essentials, (v) not use the Service for any unlawful purpose, (vi) not copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Service (except to the extent such restrictions do not apply to the license agreements of any third-party open source software included as part of the Service or to the extent this is expressly prohibited by applicable law), (vii) protect the privacy and legal rights of Users under all applicable laws and regulations, including providing a legally adequate privacy policy on any part of the Service made available for use by Public Users, and, if applicable, obtaining from Users any legally required consent to collect, access, monitor, use, or disclose information related to them, and (viii) not use a single Private User account for more than one individual, except that you may reuse a Private User account for another individual if a the original individual no longer requires access to the Service or is no longer associated with You.

8. Warranties

8.1. Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

8.2. Monogold’s Warranties. Monogold warrants that (i) this Agreement and the Data and Security Policy accurately describe the safeguards for protection of the security, confidentiality and integrity of Your Data, (ii) the Service Level Agreement accurately describes Monogold’s commitments of service availability and standard customer support, and (iii) the Service will perform materially in accordance with the available Documentation. For any breach of any of the above warranties, Your sole remedies are those described in Section 10.3 (Termination for Cause).

8.3. Your Warranties. You warrant: (i) that You have accurately completed the information in Your Account and will maintain the accuracy of such information throughout the Term of this Agreement; and (ii) that You are a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.

8.4. Disclaimers. Except for the express warranties specified in this Section 8, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND MONOGOLD MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) MONOGOLD HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) Monogold does not warrant that the Service will perform without error or immaterial interruption.

9. Limitation of Liability

IN NO EVENT: (i) WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO MONOGOLD IN THE PRECEDING 12 MONTHS; AND (ii) WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES.

THE LIABILITIES LIMITED BY THIS SECTION 9 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF THE PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF THE OTHER PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 2.2 (PAYMENTS).

THIS SERVICE OPERATES ON A SUBSCRIPTION BASIS. EXPIRY OF SUBSCRIPTIONS DOES NOT CONSTITUTE A BREACH OF CONTRACT OR ANY OTHER UNLAWFUL ACT OR OMISSION OF MONOGOLD. MONOGOLD WILL NOT IN ANY CIRCUMSTANCES BE LIABLE FOR ANY INCONVENIENCE, LOSS OR DAMAGE SUFFERED OR INCURRED BY YOU OF WHATEVER KIND AND HOWEVER ARISING IN CONNECTION WITH OR AS A RESULT OF YOUR INABILITY TO USE THE SERVICE ON ACCOUNT OF EXPIRY OF SUBSCRIPTIONS.

10. Term and Termination

10.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscriptions hereunder have expired or have been terminated.

10.2. Term of Subscriptions. Subscriptions expire on the last date their applicable Subscription Period and will automatically renew for a new Subscription Period on the Renewal Date, unless either party notifies the other of its intent to terminate the Agreement thirty (30) or more days before the Renewal Date.

10.3. Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other party first cures such breach.

10.4. Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of You to pay for Service rendered before termination; (ii) Sections 5, 6.2, 8.4, 9 and 11 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.

11. Confidentiality

11.1. Confidential Information. “Confidential Information” means all information disclosed orally or in writing by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or indicated as confidential or that should reasonably be understood to be the confidential by its nature or by the circumstances in which it is disclosed. Your Confidential Information includes Your Data; Monogold’s Confidential Information includes the Service; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Documents, as well as any commercial, financial, and operational information relating to plans, objectives, pricing, investment, technology, designs, and processes. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the Receiving Party’s possession at the time of disclosure; (ii) is independently developed by the Receiving Party without use of or reference to the Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s improper action or inaction; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

11.2. Safeguarding of Confidential Information. The Receiving Party shall safeguard all Confidential Information using a reasonable standard of care, but no less than the same degree of security and care used to protect its own Confidential Information, and not use any Confidential Information of the Disclosing Party except for the purpose of performing its obligations under this Agreement or otherwise in accordance with this Agreement.

11.3. Disclosure Required by Law. The Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority, and the Receiving Party will give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.

12. Miscellaneous

12.1. Notices. Notices sent by either party pursuant to this Agreement shall be in writing and shall be deemed to have been received by the other party: (i) instantly when delivered in person, (ii) the second business day after sending by postal mail, or (iii) the first business day after sending by email, provided notices of termination or an indemnifiable claim shall not be sent by email. Notices shall be addressed to the other party’s designated contact persons as specified in Your Account.

12.2. Amendment. Monogold may amend this Agreement (including the Service Level Agreement and Data and Security Policy) from time to time by posting an amended version at Monogold’s Website and sending You written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless You first give Monogold written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Your next Term following the Proposed Amendment Date unless You first terminate this Agreement pursuant to Section 10.2 (Term of Subscriptions) above. Your continued use of the Service following the effective date of an amendment will confirm Your consent thereto. This Agreement may not be amended in any other way except through a written agreement executed by Authorized Representatives of each party. Notwithstanding the foregoing, Monogold may amend the Acceptable Use Policy or Privacy Policy at any time by posting a new version at Monogold’s Website and sending You notice thereof, and such amended version will become effective 30 business days after such notice is sent.

12.3. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.

12.4. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.

12.5. Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.

12.6. Assignment and Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.

12.7. Law. This Agreement shall be governed by (A) the laws of the Hong Kong Special Administrative Region of the People’s Republic of China ("Hong Kong") if You are domiciled in a country in Asia or the Pacific region and (B) the laws of Sweden if You are domiciled in a country in Europe, the Middle East, Africa, North America, Central America, South America or the Carribean. In respect of all matters in connection with or arising under this Agreement the parties submit to the non-exclusive jurisdiction of (a) the Hong Kong courts if You are domiciled in a country in Asia or the Pacific region and (b) the Swedish courts if You are domiciled in a country in Europe, the Middle East, Africa, North America, Central America, South America or the Carribean.

12.8. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

12.9. Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of the Service Level Agreement or Data and Security Policy, the terms of this main body will govern. In the event of any conflict between this Agreement and any policy Monogold posts online at Monogold’s Website, including without limitation the Acceptable Use Policy and Privacy Policy, the terms of this Agreement will govern. In the event of any conflict between this Agreement and any Order Document, the terms of the Order Document will govern.

12.10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.