Terms and Conditions
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO THE MONTE CARLO SERVICE (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS. BY CREATING AN ACCOUNT TO USE THE SERVICE, YOU AGREE TO THIS AGREEMENT. IF YOU REPRESENT AN ENTITY, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE DULY AUTHORIZED TO AGREE TO THIS AGREEMENT ON BEHALF OF YOUR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICE IN ANY MANNER.
IF A COMMERCIAL AGREEMENT SIGNED BETWEEN YOU OR YOUR ENTITY AND MONTE CARLO IS CURRENTLY IN EFFECT FOR YOUR ACCESS TO AND USE OF THE SERVICE (“COMMERCIAL AGREEMENT”), THIS AGREEMENT SHALL NOT APPLY TO YOU AND YOUR ACCESS TO AND USE OF THE SERVICE SHALL INSTEAD BE GOVERNED BY THE TERMS OF THE COMMERCIAL AGREEMENT.
TERMS AND CONDITIONS
These Terms and Conditions (this “Agreement”) govern your access to and use of the Monte Carlo data observability software-as-a-service platform and the software and any and all services provided by Monte Carlo Data, Inc. (“Monte Carlo”, “we”, “us”, “our”, etc.) in connection therewith (collectively, the “Service”). By clicking the box on our website indicating your acceptance, or using the Service in any way, you and the entity you represent (“Customer” or “you”) agree that you have read and agree to this Agreement. Monte Carlo and Customer are together referred to herein as the “parties.” This Agreement is effective as of the date you click such box indicating your acceptance or use the Service in any way (whichever occurs first)(the “Effective Date”) and will remain in effect at all times while you use the Service.
1.1 Subject to the terms and conditions of this Agreement, we will provide you with access to the Service for the purpose of allowing you to evaluate the Service for a trial period, the length of which is to be determined between the parties, subject to the termination rights herein. The Service under this Agreement will be provided at no cost to you unless otherwise agreed to in writing.
1.2 To sign-up to use the Service and set up your account, you must create a username and password and provide us with all information requested in the sign-up process. You will provide complete and accurate information during the sign-up process and will update your information to ensure it remains accurate.
1.3 We reserve the right, at our sole discretion, to change, suspend or discontinue the Service (including without limitation, the availability of any feature, database or content). We may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.
1.4 Subject to the terms and conditions of this Agreement, we hereby grant to you a limited, revocable, non-exclusive, non-sublicensable, non-transferable, royalty-free, worldwide license during the term of this Agreement to access and use any computer software program, application programming interface or other technology that is owned by Monte Carlo and provided to you hereunder (collectively the “Software”) solely in connection with your use of the Service for internal business operations, in object code form only (except as otherwise expressly authorized in writing by us), and in accordance with (a) the terms of this Agreement and (b) any technical documentation, operating manuals, and/or additional terms and conditions provided by Monte Carlo at the time it provides the applicable Software, including but not limited to the documentation and specifications of the Service available at https://docs.getmontecarlo.com/.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 You will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Service or the Software (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Service or Software; (iii) use the Service or Software for timesharing or service bureau purposes or for any purpose other than your own internal use for your own internal benefit; (iv) use the Service or Software in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; (v) create Internet “links” to the Service or “frame” or “mirror” any content on any other server or wireless or Internet-based device; (vi) upload any malicious code or programming routines, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data, orpersonal information; (vii) access the Service or Software for purposes of monitoring its availability, penetration or security testing, or any benchmarking or competitive purposes; or (viii) use the Service or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights.
2.2 You hereby agree to indemnify and hold harmless Monte Carlo and our respective employees, officers, directors and representatives from and against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from: (i) an actual or alleged violation of the foregoing Section 2.1; (ii) your use of the Service; or (iii) your violation of applicable law.
3. CONFIDENTIALITY. This Agreement supersedes any applicable non-disclosure agreement between the parties with respect to your use of the Service and the exchange of confidential information hereunder.
3.1 “Confidential Information” shall mean all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential (i) with respect to Customer, the Customer Data, but not the Platform Data, and (ii) with respect to Monte Carlo, the pricing terms offered to Customer by Monte Carlo.
3.2 Each party (each a “Receiving Party”) agrees that (i) it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under these Terms and only to the extent necessary for such purposes and (ii) it shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, service providers or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this Agreement, and shall not otherwise disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The Receiving Party will exercise at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
3.3 Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
4. CUSTOMER DATA
4.1 For purposes of this Agreement, “Customer Data” means all software, data, information and other materials submitted or made available by you to the Service. You, not Monte Carlo, shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness and intellectual property ownership or right to use of all Customer Data. Although we have no obligation to monitor the Customer Data or your use of the Service, we may do so and may remove any such Customer Data or other content provided by you, or prohibit any use of the Service we believe may be (or alleged to be) in violation of the foregoing. If we receive any notice or claim that any Customer Data, or activities hereunder with respect to any Customer Data, may infringe or violate rights of a third party (a “Claim”), you will indemnify us from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. Notwithstanding anything to the contrary, you hereby grant to Monte Carlo and our contractors a worldwide, non-exclusive, royalty-free license to use, copy, store, archive, access, process, create derivative works of, reproduce, perform, display, modify, distribute and transmit Customer Data for the purposes of providing the Service to you.
4.2 In the course of providing the Service, we may collect statistical data and performance information, analytics, error information, meta-data or similar information, generated through instrumentation and logging systems, regarding the operation of the Service, including your use of the Service (the “Platform Data”). Nothing in this Agreement shall restrict our right to collect Platform Data or to use it for any internal business purpose, including but not limited to billing, operational excellence and quality
assurance, provided however, that we will not disclose Platform Data to any third party in a manner that allows such third party to identify you or any authorized user, other than our employees, agents or service providers who are subject to obligations of confidentiality with respect to such Platform Data.
4.3 To the extent applicable to the provision and receipt of the Service and the processing of your personal data, both parties will comply with the data processing agreement (“DPA”) available at https://www.montecarlodata.com/data-processing-addendum/, which is incorporated into this Agreement. The parties acknowledge and agree that the DPA will apply only to the extent Data Protection Laws and/or the CCPA applies to the Agreement, as those terms are defined in the DPA.
4.4 Each party has obligations with respect to the security of the Service, a customer’s account, and Customer Data. We will implement and maintain appropriate technical and organizational security measures that align with industry standards. More details on our security measures, certifications, and policies can be found at our Trust Center available at https://trust.montecarlodata.com/. You are responsible for all activities in your account, regardless of whether undertaken by you, your employees, or a third party under your direction or control. Monte Carlo is not responsible for unauthorized access to your account unless caused by our breach of this agreement.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 As between the parties, Monte Carlo retains all intellectual property rights relating to the Service or the Software. You will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or Software, or any intellectual property rights.
5.2 You shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. You represent and warrant to us that: (i) you have all rights in your Customer Data necessary to grant the rights contemplated by this Agreement; and (ii) none of the Customer Data violates this Agreement, any applicable law, or any third party’s intellectual property or other right.
5.3 This Agreement does not transfer any right, title or interest in any intellectual property to any party, except as expressly set forth in this Agreement. You may from time to time provide suggestions, ideas, enhancement requests, feedback, recommendations or other comments relating to the Service and/or the Software (“Feedback”), but if you do, we may use and modify this Feedback without any restriction or payment.
5.4 Without limiting the foregoing, you acknowledge and agree that Monte Carlo may provide any and all data arising or derived from and/or relating to your use of the Service (which may include, without limitation, how many times you have logged in to the Service and/or handled a data incident) to other employees of your employer, or, if you are an independent contractor, the entity that engaged you to provide services involving access to the Service. For the avoidance of doubt, such data will identify you as the user associated with such data.
6. TERMINATION. The term of this Agreement commences as of the Effective Date and will remain in force until terminated in accordance with this Agreement. Either party may terminate this Agreement for any reason upon seven (7) days’ written notice to the other party. We may also terminate your account and this Agreement, or temporarily suspend your access to the Service, immediately if we reasonably determine that: (i) your use of the Service disrupts or creates a security risk to the Service, other users, or Monte Carlo systems; or (ii) you are using the Service in violation of any applicable law or regulation or this Agreement. In the event of any suspension pursuant to this section, we will use commercially reasonable efforts to provide written notice thereof to you, and to restore access to the Service as promptly as reasonably practicable. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. WARRANTY DISCLAIMER. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE SERVICES AND MONTE CARLO CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND, AND MONTE CARLO (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
8.1 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 EXCEPT FOR A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, NEITHER PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF, OR RELATING TO THIS AGREEMENT SHALL EXCEED USD $50,000.
9. MISCELLANEOUS. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with our prior written consent. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Monte Carlo in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Except as may otherwise be required by applicable law, we may provide any notice to you under this Agreement via our website or sending a message to the email address then associated with your account when we send the email, whether or not you actually receive the email. All notices to us notice under this Agreement must be in writing and shall be deemed to have been duly given when sent via email to the Monte Carlo representative managing your account when you send the email. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.