Download our Terms of Service here.
THESE MONDA TERMS OF SERVICE (“MONDA ToS”) ARE INCORPORATED IN AND FORM AN
INTEGRAL PART OF THE AGREEMENT ENTERED BETWEEN THE CUSTOMER MENTIONED AS SUCH
IN THE ORDER FORM (“Customer”) AND THE RESPECTIVE MONDA ENTITY REFERENCED IN SECTION
16.1 BELOW AS THE PROVIDER AND OPERATOR OF THE PLATFORM (“MONDA”). CUSTOMER AND
MONDA MAY HEREINAFTER INDIVIDUALLY BE REFERRED TO AS A “Party” AND COLLECTIVELY AS
THE “Parties”.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants contained in the
Order Form and these MONDA ToS, the Parties agree as follows:
Table of Contents
1 General ......................................................................................................................................... 4
2 Registration as a Customer, Customer Account ................................................................... 5
3 Customer’s Data Offering.......................................................................................................... 7
4 Information from Channels ...................................................................................................... 8
5 What Do We Need You to Promise? ......................................................................................... 9
6 What Are Your Payment Obligations? .................................................................................. 11
7 When Does the Agreement Commence, and How Long Will It Last? .............................. 12
8 What Do We Promise You? ...................................................................................................... 13
9 To Which Extent Will We Be Liable to You? .......................................................................... 14
10 Ownership of Intellectual Property Rights .......................................................................... 15
11 How to Deal with Confidential Information? ...................................................................... 16
12 How to Deal with the Processing of Personal Data? .......................................................... 18
13 What Happens If We Disagree? .............................................................................................. 18
14 How May We Change these MONDA ToS, and What Are Your Rights? ............................ 19
15 What Else Needs to Be Agreed Upon? ................................................................................... 19
16 Who Is Your Contracting Partner and How Can We Contact Each Other? ..................... 21
17 Glossary ...................................................................................................................................... 22
Definitions Used in These MONDA ToS
Acceptable Use Policy .................................. 22
Affiliate .......................................................... 22
Aggregated Data .......................................... 22
Applicable Laws ............................................ 22
Availability ..................................................... 22
Channel ......................................................... 22
Channel Terms ............................................. 22
Channel User ................................................ 22
Commencement Date.................................. 22
Confidential Information ............................. 22
Contracting MONDA Entity .......................... 21
Controller ...................................................... 23
Customer ........................................................ 2
Customer Account ....................................... 23
Customer Ideas ............................................ 23
Data Offering ................................................ 23
Data Processing Agreement ........................ 23
Data Product ................................................ 23
Data Protection Laws ................................... 23
Data Resource .............................................. 23
Data Subject ................................................. 23
Disclosing Party ............................................ 22
Documentation ............................................ 23
Downtime ..................................................... 23
Effective Date ............................................... 23
Emergency Maintenance ............................. 23
Feature .......................................................... 23
Force Majeure Event .................................... 24
Initial Term.................................................... 24
Intellectual Property Rights ......................... 24
Limitation ...................................................... 24
MONDA ........................................................... 2
MONDA Technology..................................... 24
MONDA ToS .................................................... 2
Option ............................................................. 4
Option Terms ................................................. 5
Order Form ..................................................... 5
Parties ............................................................. 2
Party ................................................................ 2
Payment Fees ............................................... 24
Personal Data ............................................... 24
Plan Overview ............................................... 24
Platform ........................................................ 24
Process .......................................................... 24
Processor ...................................................... 24
Purpose ......................................................... 25
Receiving Party ............................................. 22
Renewal Term............................................... 25
Representatives............................................ 25
Restricted Person ......................................... 25
SaaS Infrastructure ...................................... 25
Sanctions Authority ...................................... 25
Sanctions List ................................................ 25
Sanctions Regulations .................................. 25
Scheduled Maintenance .............................. 25
Service ........................................................... 25
Subscription Fees ......................................... 25
Subscription Plan ......................................... 26
Taxes ............................................................. 26
Team Member .............................................. 26
Term .............................................................. 26
Territory ........................................................ 26
Usage Data ................................................... 26
1.1 Scope. Subject to the terms and conditions of the Order Form, these MONDA ToS and the
Subscription Plan selected by Customer, MONDA shall (a) provide to Customer a Customer
Account, thus enabling Customer to access the Platform, (b) grant to Customer, subject to
the Availability, a non-exclusive, non-transferable right to use such Customer Account, and
the Platform (including all Features comprised by Customer’s Subscription Plan) in the
Territory, and solely for the Purpose, (c) render additional Services to Customer (as
included in Customer’s Subscription Plan), and (d) provide Customer with applicable
support, including Scheduled Maintenance and Emergency Maintenance, for the Platform,
all (a) through (d) as further described in the Plan Overview and the Documentation. All
rights not expressly granted to Customer are reserved by MONDA. Through the Platform
Customer may (a) publish certain Data Offerings on one or multiple to get in touch and
close business with Channel Users; and (b) generally interact with Channel Users as
described in further detail herein-below and in the Documentation.
1.2 Role of Customer. By accepting these MONDA ToS, Customer acknowledges and agrees
that the Platform and all related Services are offered by MONDA solely and exclusively for
the Purpose and Customer confirms that in entering into an agreement with MONDA it is
acting in its capacity as a business. Any use of the Platform for private or other non-
business purposes is prohibited. MONDA may, at its reasonable discretion, request
additional information and evidence at any time during the Term to satisfy itself of
Customer's business capacity.
1.3 Role of MONDA. While Customer and Channel Users may directly interact and do business
with each other through the Channels that are accessible via the Platform, MONDA is not
a party to any contractual relationship between Customer and other Channel Users, and
MONDA cannot and will not guarantee any sales or sales opportunities with respect to
Customer Data Offerings on any Channel. MONDA neither sells nor buys any Data
Offerings, but it solely offers the Platform as an online software platform in order to make
the process of reaching Channel Users and creating business opportunities more efficient
and convenient for Customers.
1.4 Modifications of the Platform. Save Customer’s rights of use and MONDA’s warranties as
set out in the Order Form and these MONDA ToS, MONDA reserves the right, in its sole
discretion, to make changes to the Platform that it deems necessary or useful to: (a)
maintain or enhance (i) the quality or functionality of the Platform; (ii) the competitive
strength of or market for the Platform; or (iii) the Platform’s cost efficiency and/or
performance; or (b) to comply with any Applicable Laws. Modifications introduced by
MONDA pursuant to this section 1.4 may, at MONDA’s sole discretion, (x) include additional
Features that provide further functionality, compatibility, and/or interoperability to the
Platform and/or additional Services for Customer, and (y) be provided to Customer as (i) an
enhancement of an existing Subscription Plan; (ii) a new Subscription Plan; or (iii) an
optional Feature or Service for some or all Subscription Plans to which Customer may
subscribe (“Option”). Options may be subject to additional terms and conditions specific to
such Feature or Service which terms and conditions shall supplement and, in case of any
inconsistency, prevail over the terms and conditions of these MONDA ToS (“Option
Terms”). Options may also involve additional Subscription Fees or other forms of
remuneration, as more fully described in the relevant Option Terms.
Definitions. All capitalized terms used in these MONDA ToS shall have the meaning
ascribed to them in the Glossary (section 17). Terms defined in the singular shall have the
same meaning when used in the plural and vice versa.
2.1 Selection of a Subscription Plan and Options. MONDA offers multiple Subscription Plans
for the Platform, and it may offer Options for the Platform during the Term. The Features
and Services available for Customer, and the Subscription Fees or other remuneration
payable to MONDA, differ depending on Customer’s selection of a Subscription Plan and
Options (if any). The Plan Overview comprises all information on the Features and Services
comprised by a given Subscription Plan and all Options available for that Subscription Plan,
and the Plan Overview contains detailed information on the applicable Subscription Fees
for each Subscription Plan and the additional remuneration for each Option (if any).
2.2 Subscription Request; Subscription Confirmation. An agreement between the Parties
with respect to the Purpose shall enter into force, and the terms and conditions of these
MONDA ToS shall inure to the benefit of the Parties only if Customer has signed in writing
or otherwise declared its acceptance of the terms and conditions comprised in a written
order form that contains the information pursuant to section 2.1 and incorporates the
terms and conditions of these MONDA ToS and any applicable Option Terms (if any), and
that has been provided to Customer by or on behalf of MONDA (“Order Form”). This
section 2.2 shall apply mutatis mutandis to any agreement between the Parties on
additional Option Terms.
2.3 Customized Subscription Plans; Order of Precedence. Customer may request, and
MONDA may, in its discretion, agree to provide to Customer a customized Subscription
Plan that differs from the Plan Overview in terms of the Features, Options, or Subscription
Fees. If the Parties agree on such customized Subscription Plan, all references in these
MONDA ToS to a Subscription Plan or the Plan Overview shall be construed to refer to the
customized Subscription Plan as set forth in the applicable Order Form. The Order Form
shall also prevail over the terms and conditions of these MONDA ToS in all other aspects.
2.4 Upgrade. Where Customer desires to augment its use of the Platform, Customer may, at
any time during the Term, request an upgrade of the agreed Subscription Plan. If MONDA
accepts such request, MONDA shall make available to Customer the Features and Services
comprised by such upgraded Subscription Plan and lift all Limitations in accordance with
the now applicable portion of the Plan Overview as of the date agreed between the Parties.
With each upgrade, section 7.1 of these MONDA ToS shall apply mutatis mutandis, the date
agreed between the Parties pursuant to this section 2.4 replacing the original
Commencement Date. Customer’s use of the upgraded Subscription Plan shall be subject
to the Subscription Fees payable by Customer for such Subscription Plan pursuant to the
Plan Overview. MONDA shall charge Customer with the balance between Customer’s
advance payment for the original Subscription Plan and the additional Subscription Fees
due for the upgraded Subscription Plan, calculated on a monthly pro rata basis.
2.5 Team Members. Upon registration of Customer’s Customer Account, Customer can
register Team Members for its Customer Account. Every Customer or Customer Affiliate’s
Representative that is or is supposed to be, directly or indirectly, working under Customer’s
Customer Account shall become a Team Member. Customer may create Team Member
accounts as it considers useful, whilst always bearing in mind the Team Member
Limitations of its Subscription Plan, the Territory, and the Purpose. The creation of Team
Member accounts requires the submission of a valid business email address that is
associated to the Customer’s business entity; using trashmail addresses or private
accounts (gmail.com etc.) for Team Members is not appropriate. Upon submission of the
information set out in the preceding sentence, MONDA will send an invitation email and
registration link to the email address indicated by Customer. MONDA is under no obligation
to verify whether the email address submitted by Customer is valid, or whether the holder
or each user of such email address is actually entitled to access Customer’s Customer
Account, including Data Offerings or other Confidential Information of Customer. Unless
otherwise agreed in writing, individual Team Member accounts and/or login credentials
may not be shared or used by more than one individual Team Member. Customer may, at
any time and in its sole discretion, initiate (a) the blocking of individual Team Member
accounts so as to temporarily exclude certain Team Members from further accessing
Customer’s Customer Account or (b) the deletion of individual Team Member accounts so
as to erase or anonymize all personal data relating to such Team Members in addition to
excluding them for further accessing the Platform.
2.6 SUSPENSION. MONDA MAY, WITH NOTICE TO CUSTOMER, SUSPEND CUSTOMER’S OR ANY
TEAM MEMBER’S ACCESS TO THE PLATFORM, INCLUDING THE CUSTOMER ACCOUNT IN
THE CASES DESCRIBED IN SECTION 6.5 (LATE PAYMENT) OR IF MONDA REASONABLY
CONCLUDES THAT CUSTOMER’S CUSTOMER ACCOUNT OR ANY SPECIFIC TEAM MEMBER
ACCOUNT:
(A) IS BEING USED IN VIOLATION OF THE RESTRICTIONS OF USE SET OUT IN SECTIONS 1.2
5.2 (COMPLIANCE WITH LAWS), 5.5 (RESTRICTIONS) OF THESE MONDA TOS; AND/OR
(ROLE OF CUSTOMER), 3.2 (CUSTOMER RESPONSIBILITIES), 5.1 (USE OF THE PLATFORM),
(B) IS BEING USED IN VIOLATION OF THE APPLICABLE CHANNEL TERMS; AND/OR
(C) IS BEING USED TO ENGAGE IN DENIAL-OF-SERVICE ATTACKS, SPAMMING,
MISAPPROPRIATION OF THIRD-PARTY RIGHTS, OR ILLEGAL ACTIVITY; AND/OR
(D) IS CAUSING IMMEDIATE, MATERIAL AND ONGOING HARM TO MONDA OR OTHERS.
MONDA WILL ACT IN A DILIGENT, OBJECTIVE AND PROPORTIONATE MANNER IN APPLYING
AND ENFORCING THE RESTRICTIONS REFERRED TO IN THIS SECTION 2.6, WITH DUE
REGARD TO THE RIGHTS AND LEGITIMATE INTERESTS OF ALL PARTIES INVOLVED,
INCLUDING THE FUNDAMENTAL RIGHTS OF CUSTOMER AND ITS TEAM MEMBERS, SUCH
AS THE FREEDOM OF EXPRESSION, FREEDOM AND PLURALISM OF THE MEDIA, AND OTHER
AFFECTED FUNDAMENTAL RIGHTS AND FREEDOMS UNDER APPLICABLE LAWS.
IN THE EXTRAORDINARY EVENT THAT MONDA SUSPENDS ANY SUCH ACCESS TO THE
PLATFORM OR CUSTOMER ACCOUNT, MONDA WILL USE COMMERCIALLY REASONABLE
EFFORTS TO LIMIT THE SUSPENSION TO THE OFFENDING PORTION OR TEAM MEMBER
ACCOUNT(S) OF THE PLATFORM AND WORK WITH CUSTOMER TO RESOLVE THE ISSUES
CAUSING SUCH SUSPENSION, AND, AS APPROPRIATE IN LIGHT OF THE CIRCUMSTANCES,
PROMPTLY PROVIDE THE SUSPENDED TEAM MEMBER WITH A NEW TEAM MEMBER
ACCOUNT TO ACCESS THE PLATFORM. CUSTOMER AGREES THAT MONDA SHALL NOT BE
LIABLE FOR ANY SUSPENSION OF THE PLATFORM UNDER THE CIRCUMSTANCES
DESCRIBED IN THIS SECTION 2.6.
3.1 Publishing of Data Offerings. Subject to the Features and Services comprised by the
Subscription Plan and/or the Options selected, Customer may publish its Data Offering on
one or multiple Channels. Channels may be operated by Customer itself and/or by other
parties. Customer’s use of Channels to increase the exposure of Customer’s Data Offering
to Channel Users may be subject to specific Channel Terms and fees established for a
Channel, and the availability of certain Channels may vary depending on the Subscription
Plan and/or Options selected by Customer. Only upon Customer’s explicit opt-in and, if so
required in accordance with the applicable Channel Terms, confirmation from the owner
of the Channel, MONDA may activate a Channel for Customer to disseminate all or part of
Customer‘s Data Offering on such Channel and attempt to generate additional business
with Channel Users.
3.2 Customer’s Responsibilities. Customer has sole responsibility for the entry, deletion,
correction, accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual
property ownership or right to list, market, and disseminate Customer’s Data Offering
through each of the selected Channels, and, save sections 8 and 9 of these MONDA ToS, it
is Customer’s sole responsibility to ensure that the Data Resources for Customer’s Data
Offering have been collected and further processed at all times, including by uploading
them to the Platform and have them disseminated through one or multiple Channels, in
compliance with all Applicable Laws, in particular Data Protection Laws.
3.3 Technical Parameters. In addition to legal compliance pursuant to section 3.2, Customer
undertakes to always observe the technical parameters for any Data Offering as described
in the Documentation, and to avoid the upload of any duplicate Data Offerings.
3.4 MODERATION OF DATA OFFERINGS. MONDA RESERVES THE RIGHT, AT ITS DISCRETION,
(A) TO BLOCK OR DELETE ANY DATA OFFERINGS CUSTOMER HAS SET UP OR UPLOADED IN
VIOLATION OF SECTION 3.2; (B) TO BLUR ANY PERSONAL DATA THAT APPEARS IN THE DATA
RESOURCES; OR (C), IN CASE OF MINOR TECHNICAL NON-CONFORMITIES OF THE DATA
OFFERING, TO RECTIFY SUCH NON-CONFORMITIES. MONDA WILL ACT IN A DILIGENT,
OBJECTIVE AND PROPORTIONATE MANNER IN APPLYING AND ENFORCING THE
RESTRICTIONS REFERRED TO IN THIS SECTION 3.4, WITH DUE REGARD TO THE RIGHTS AND
LEGITIMATE INTERESTS OF ALL PARTIES INVOLVED, INCLUDING THE FUNDAMENTAL
RIGHTS OF CUSTOMER AND ITS TEAM MEMBERS, SUCH AS THE FREEDOM OF EXPRESSION,
FREEDOM AND PLURALISM OF THE MEDIA, AND OTHER AFFECTED FUNDAMENTAL RIGHTS
AND FREEDOMS UNDER APPLICABLE LAWS.
3.5 Rights to Data Offerings. Notwithstanding the aforesaid, and with the exception of the
warranties set out in the Order Form and these MONDA ToS, the Data Offering is provided
by Customer on an “as is” basis without any further warranties of any kind, either express
or implied, including but not limited to any warranties of fitness for a particular purpose.
Customer grants to MONDA a non-exclusive, worldwide, royalty-free license, during the
Term, to: (a) access, download, and store any Data Offering on the SaaS Infrastructure; and
(b) reproduce, copy, aggregate and otherwise use any Data Offering for the purposes of (i)
making available the Data Offering on the selected Channels and (ii) providing the Platform
and any additional Services to Customer.
3.6 Protection of Data Offerings. MONDA will maintain administrative, physical and technical
safeguards designed to protect the security, confidentiality, and integrity of the Data
Offering. Those safeguards will include, but will not be limited to, measures intended to
prevent unauthorized access, use, modification, or disclosure of the Data Offering. MONDA
shall only access Data Offerings as described in these MONDA ToS: (a) to support
Customer’s use of the Platform and/or the Channel(s) and prevent or address service or
technical problems; or (b) as Customer expressly permits in writing. Specifics on the
technical and organizational measures implemented to protect Data Offerings are set forth
in greater detail in the Data Processing Agreement.
3.7 Deletion of Data Offerings. Save any specific provisions in the applicable Channel Terms,
Customer will be enabled to delete any Data Offering from the Channels at any time during
the Term.
4.1 Channel User Communications. Subject to the Subscription Plan and the applicable
Channel Terms, MONDA will synchronize information regarding the Customer's Data
Offering (if any) from the Channel(s) selected by the Customer to the Customer's Account
on the Platform. Information may include commercial leads, contact requests, requests for
data samples, or other Channel User requests. Customer may manage such requests on
the Platform although these MONDA ToS do not impose any obligation on Customer to
accept any commercial leads or to further communicate with any Channel Users upon
synchronization of such requests with the Customer Account on the Platform.
4.2 CRM Synchronization. Without prejudice to section 4.1 and subject to the Subscription
Plan and the applicable Channel Terms, Customer may, at its option, synchronize to its CRM
system the information received from the Channels. In using this Feature, Customer shall
at all times ensure that it acts in full compliance with applicable Data Protection Laws.
5.1 Use of the Platform. Customer will: (a) be responsible for all activity occurring under its
Customer Account, including all Team Member accounts and its Team Members’
compliance with these MONDA ToS; (b) use commercially reasonable efforts to prevent
unauthorized access to or use of its Customer Account, including by treating as confidential
all login credentials and access information provided to it, and notify MONDA promptly of
any such unauthorized access or use; (c) use the Platform and all Channels only in
accordance with the Documentation, these MONDA ToS and Applicable Laws, in particular
Data Protection Laws; and (d) provide MONDA with all reasonably available information if
Customer reports a non-conformance in the Platform and/or any Channel so that MONDA
may diagnose and remedy such non-conformance and/or inform the provider of such
Channel accordingly. In addition, MONDA will display to and have all Team Members
confirm to have acknowledged MONDA’s Acceptable Use Policy prior to accessing the
Platform.
5.2 Compliance with Laws. Customer will be solely responsible for, and agrees to comply
with, all Applicable Laws with respect to the use of and access to the Platform, including
without limitation any Applicable Laws regarding the export and re-export from any
jurisdiction of software, technical data and information or derivatives of such software, or
technical data and information.
5.3 Reporting Mechanism for Illegal Content. If Customer finds or suspects that information
available on the Platform is unlawful, Customer may report this content. MONDA provides
a procedure on the Platform for the purely electronic reporting of information that has
been identified as unlawful and is accessible on the Platform. Each report must contain (a)
a duly substantiated explanation as to why the reporting person considers the information
in question to be unlawful; (b) a clear indication of the exact electronic location of this
information, such as the exact URL address(es); (c) the name and email address of the
reporting person or entity, unless the information is deemed to relate to a criminal offence
involving the sexual abuse and sexual exploitation of children and child pornography; and
(d) a statement that the reporting person or entity has a good faith belief that the
information and particulars contained in the report are accurate and complete. Upon
receipt of a report in accordance with the above section, MONDA will promptly send an
acknowledgement of receipt of the report to the electronic contact address provided by
the reporting individual. MONDA will process all reports in accordance with this section 5.3
and will decide on the reported information promptly, carefully, without arbitrariness and
objectively. If MONDA uses automated means for this processing or decision making, it will
provide appropriate information in connection with the provision of the reporting channel
in accordance with this section 5.3. MONDA will immediately inform the person concerned
of its decision regarding the reported information and point out the possible legal remedies
against this decision. In case of suspicion of a criminal offense, MONDA may be obliged to
inform the competent law enforcement or judicial authorities in accordance with
Applicable Laws.
5.4 Eligibility of Channel Users. Without prejudice to any provision of the applicable Channel
Terms imposing further know-your-customer obligations on Customer, Customer is
obliged to convince itself that (a) each Channel User is a company, duly established under
applicable laws at Channel User’s place of business; (b) Channel User is not a Restricted
Person; and (c) Channel User is not in any case a natural person that is acting for purposes
which are outside this person’s trade, business, craft or profession.
5.5 Restrictions. Customer is not allowed to and will not: (a) license, sublicense, sell, resell,
transfer, assign, distribute, or otherwise commercially exploit or make available to any third
party (with the exception of Customer Affiliates) the Platform or the Customer Account,
except as otherwise expressly permitted under these MONDA ToS; (b) modify or make
derivative works based upon the Platform, or otherwise violate MONDA’s Intellectual
Property Rights in the Platform; (c) download or otherwise copy any MONDA or third-party
data, data bundles, data products, or data articles so as to duplicate it outside the Platform;
(d) reverse engineer or access the Platform in order to: (i) build a competitive product or
service; (ii) build a product using similar ideas, features, functions or graphics of the
Platform; or (iii) copy any ideas, features, functions or graphics of the Platform; (e) send or
store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious Data
Offerings or other material to the Platform; (f) send or store Data Offerings or other
material containing viruses, worms, Trojan horses, spam, or other harmful computer code,
files, scripts, agents, or programs to or from the Platform; (g) interfere with or disrupt the
integrity or performance of the Platform or any other MONDA or third-party data, data
bundles, data products, or data articles contained in it, including but not limited to engaging
in denial of service attacks; (h) attempt to gain unauthorized access to the Platform, any
MONDA or third-party data, data bundles, data products, or data articles, or its systems or
networks; (i) submit for publishing any reviews concerning its own Data Offerings or its own
handling of Channel Users; or (j) use the Platform in violation of any Applicable Law,
including but not limited to Data Protection Laws.
5.6 Cooperation Duties. Customer shall support MONDA during the Term to a reasonable
extent, and Customer, in particular, shall designate at least one dedicated contact person
for the performance of the Order Form and these MONDA ToS, both for commercial and
technical questions, that is duly authorized by Customer to legally represent Customer.
Customer shall have the right to change any such contact person only upon prior written
notice to MONDA. MONDA shall not be liable for a failure to provide the Platform or
Customer Account in accordance with these MONDA ToS to the extent that such failure is
based on Customer’s failure to provide the cooperation or assistance pursuant to this
section 5.6. Furthermore, Customer shall reimburse MONDA for the costs reasonably
incurred due to Customer’s failure to provide the required cooperation or assistance.
However, this shall not apply to the extent that MONDA failed to take the mitigation actions
described hereinafter. If Customer fails to provide the cooperation or assistance pursuant
to this section 5.6, MONDA shall (a) prove to have advised Customer of the required
cooperation in advance; (b) notify Customer about its failure to provide the respective
cooperation or assistance; and (c) use commercially reasonable endeavors to avoid or
mitigate the impact of such omission by Customer on the (timely) provision of the Platform.
5.7 Indemnification. Customer will indemnify and defend MONDA and its Affiliates, and
Representatives against any and all costs, damages, losses, liabilities, and expenses
(including attorneys’ fees and costs) arising out of (a) a claim by a third party alleging that
any of Customer’s Data Offerings infringes its Intellectual Property Rights; (b) a violation of
Applicable Laws , including, but not limited to, Data Protection Laws, Sanctions Regulations,
or Applicable Laws related to export controls; or (c) Customer’s violation of any applicable
Channel Terms. The rights and remedies granted to MONDA under this section 5.7 shall
only apply if Customer acted at least negligently. In the event of an indemnity obligation
under this section 5.7, MONDA shall: (a) promptly notify Customer in writing of such claim;
(b) allow Customer sole control of its defense and settlement; and (c) provide Customer
with all available information and reasonable assistance at Customer’s expense.
6.1 Subscription Fees. MONDA may charge and collect payments from Customer, including
without limitation Subscription Fees. All fees payable by Customer are set forth in the Plan
Overview. Customer agrees to pay MONDA all fees and expenses owed to MONDA in the
amounts and the times specified in an applicable MONDA invoice and these MONDA ToS.
6.2 Payment of Subscription Fees. Subscription Fees shall become payable and be paid to
MONDA, within the payment period specified in the Plan Overview for the applicable
Subscription Plan, upon Customer’s receipt of the respective invoice from MONDA. MONDA
shall invoice the Subscription Fees monthly, quarterly, or annually in advance in accordance
with Customer’s selection. All payments to MONDA shall be made in Euros (EUR) or US
Dollars (USD) and only via the payment methods explicitly suggested by MONDA.
6.3 Adjustment of Fees. MONDA may adjust the fees set forth in the Plan Overview as
appropriate. Adjustments shall be made to reflect increased value from new Features,
additional Channels, changes in cost incurred for salaries and wages as well as purchasing
IT services. Adjustments shall take effect from the date specified by MONDA, nonetheless
no sooner than one month after Customer’s receipt of notification of the fee adjustment.
6.4 Billing Information. Customer agrees to provide MONDA with complete and accurate
billing and contact information including (a) its legal company name, street address;
(b) email, name and telephone number of an authorized billing contact and/or responsible
person(s); (c) its Value Added Tax (or a similar tax) and company registration codes
(regardless of whether VAT is not applicable due to reversed-charge procedure); and
(d) any purchase order or other numbers or references MONDA should state in its invoices.
Customer agrees to update this information, by respectively updating the data on the
Platform, within thirty (30) days of any change to it. If Customer fails to provide or timely
update any of the foregoing information, MONDA shall be entitled to use for any invoice
the latest information provided by Customer; in such event, Customer shall have no claim
whatsoever to dispute the invoice or delay payment of the invoice on the ground of missing
or incorrect billing and/or contact information.
6.5 Late Payment. Delinquent invoices are subject to the statutory interest rates on any
outstanding balance and reimbursement of expenses incurred by MONDA. If a payment is
not disputed in good faith (and in addition to its other rights), MONDA reserves the right to
terminate the Order Form, or to suspend Customer’s access to the Platform in accordance
with section 2.6 if any delinquent payment is not received by MONDA within fourteen (14)
days after notice to Customer of such delinquency.
6.6 Taxes; Payment Fees. MONDA’s Subscription Fees or any other fees do neither include
Taxes, nor include any Payment Fees. Customer shall be responsible for paying all Taxes
associated with its use of the Platform and all Channels as well as all Payment Fees in
connection with its payment of MONDA’s invoices. If MONDA has the legal obligation to pay
or collect Taxes for which Customer is responsible under this paragraph, MONDA will
invoice Customer, and Customer will pay that amount unless Customer provides MONDA
with a valid tax exemption certificate authorized by the appropriate taxing authority. For
clarity, MONDA is solely responsible for taxes assessable against MONDA based on its net
income, property and employees.
6.7 Set-off. Customer may not set off any amount against invoices of MONDA unless MONDA
has acknowledged in writing to owe such amount, or it has been held in an uncontested
court decision that MONDA owes such amount.
7.1 Term. The agreement between the Parties commences on the Effective Date. The
agreement will remain in force for the Initial Term, and it will be tacitly and automatically
renewed for consecutive Renewal Terms, unless either Party elects to terminate the
underlying Order Form by giving the respective other Party written notice at least ninety
(90) days prior to the then current end date.
7.2 Termination for Cause. Either Party may, by written notice to the respective other Party,
terminate the Order Form for cause and with immediate effect: (a) upon at least fourteen
(14) days’ written notice to the other Party of a material breach if such breach remains
uncured at the expiration of such period whereby all cases set forth in section 2.6 shall be
considered a material breach of Customer’s obligations; or (b) if the other Party becomes
the subject of a petition in bankruptcy or any other proceeding relating to insolvency,
receivership, liquidation or assignment for the benefit of creditors and, as a consequence,
the other Party has reason to believe that such Party will no longer be able to fulfill its non-
payment obligations under the Order Form including these MONDA ToS. Any other
statutory rights of the Parties to declare extraordinary termination shall remain unaffected.
7.3 Consequences of Termination or Expiration. If the Order Form is terminated or if it
expires for whatever reason: (a) any rights to use the Platform shall expire; and (b)
Customer is obliged to cease using or attempting to access the Platform via its Customer
Account. However, a termination or expiration of the Order Form shall not relieve
Customer of the obligation to pay any Subscription Fees or other fees payable to MONDA
that exist at the effective date of such termination or expiration. Notwithstanding the
aforesaid, Customer acknowledges and agrees that MONDA has no right or obligation to
retain any Data Offerings or other Customer data more than thirty (30) days after
termination or expiration of the Order Form and will delete or destroy any Data Offerings
or other Customer data in its possession or control thirty (30) days after termination or
expiration of the Order Form, unless where Customer or MONDA is aware that a statutory
obligation requires MONDA to retain some of the Data Offerings or other Customer data.
In such circumstances, of which Customer or MONDA shall inform the other Party in writing
prior to or at the time of termination, MONDA will destroy this Data Offering or other
Customer data as soon as such statutory obligation to retain them expires. For the
avoidance of doubt, MONDA shall have no right to create Aggregated Data upon the
effective date of a termination of the Order Form.
8.1 MONDA’s Warranties. MONDA warrants that, when used in accordance with the
Documentation, the functionality of the Platform will be substantially in accordance with
the Documentation. In the event of defects or malfunctions attributable to MONDA,
MONDA may initially remedy the defect by releasing updates which do not contain the
defect or by patching the Platform to remedy the defect. If MONDA fails to rectify a defect,
Customer may, at its discretion, reduce the fees payable to MONDA or, unless the defect
only insignificantly impairs the contractual use of the Platform, terminate the Order Form
for cause. Subsequent performance, however, shall only be deemed to have failed if
Customer has given MONDA sufficient opportunity to remedy the defect within a
reasonable period of time without the due success having been achieved. The provision of
a provisional solution that circumvents the defect (‘workaround’) shall be taken into
account when determining the time limit.
8.2 MONDA Personnel. MONDA will be responsible for the performance of its personnel
(including employees and contractors) and their compliance with the obligations set forth
in the Order Form and these MONDA ToS.
8.3 Third-Party Claims. If Customer becomes aware of a third party's allegation that the
provision and/or use of the Platform infringes its Intellectual Property Rights or those of
other third parties, Customer shall immediately inform MONDA accordingly. As far as
possible, MONDA will take over, at its own expense, the defense against claims asserted on
the basis of the alleged infringement of Intellectual Property Rights and conduct any
negotiations regarding the settlement of the legal dispute. Customer shall support MONDA
in this respect as far as reasonable and conducive to defense and settlement discussions.
MONDA's liability for defects of title shall remain unaffected.
8.4 Limitations of Warranties. Customer acknowledges that MONDA does not control the
transfer of data over communications facilities, including the Internet, and that the use of
the Platform may be subject to limitations, delays, and other problems inherent in the use
of such communications facilities. Customer also acknowledges that MONDA factual power
to influence provision of the SaaS Infrastructure is limited. In addition, MONDA shall not be
liable if the use of the Platform is impaired due to improper installation, operation, or
maintenance by Customer or a third-party on Customer’s behalf. In particular, any
warranty shall be excluded for impairments caused by the fact that the Platform is used
under conditions that do not correspond to the hardware and software environment
specified in the Documentation. MONDA will not be responsible for any destruction,
damage, loss, or failure to store any Data Offering beyond its reasonable control or
resulting from a failure in data transmission or operation of the Platform by Customer.
9.1 General. With the exception of liability (a) due to injury to life, limb or health; (b) in the
event of willful misconduct or gross negligence; (c) for a breach of an independent quality
guarantee (“Beschaffenheitsgarantie”); and/or (d) that cannot be limited in accordance with
Applicable Laws, MONDA's liability shall be limited or excluded as follows.
9.2 Limitation of Liability. In the event of negligence, MONDA shall, in the absence of an
explicit agreement of the Parties on a liability cap, only be liable for the breach of
substantial contractual obligations, thus obligations, the fulfilment of which makes the
proper execution of the Order Form including these MONDA ToS possible at all, and the
breach of which endangers the achievement of the Purpose, and the compliance with
which Customer may, as a rule, rely upon. In these cases, the liability of MONDA is limited
to the damages that are foreseeable according to the type of the business in question, and
that are typical for the contract.
9.3 No Liability Without Fault. MONDA shall not be liable for defects in the Platform that
already existed at the Effective Date regardless of MONDA’s fault, unless MONDA (a)
maliciously concealed the defect from the Customer or (b) expressly promised the
availability of the respective functionality, compatibility or interoperability.
9.4 Exclusion of Liability. All other liability on the part of MONDA shall be excluded regardless
of its legal and factual foundation. All liability claims shall become statute-barred within
twelve (12) months.
9.5 Liability of MONDA Staff. Insofar as the liability of MONDA is excluded or limited, this also
applies to the personal liability of MONDA’s Affiliates, Representatives, and vicarious
agents.
10.1 MONDA’s Intellectual Property. No jointly owned Intellectual Property Rights are created
under or in connection with the Order Form including these MONDA ToS. MONDA owns all
rights, title and interest, including all related Intellectual Property Rights, in and to the
MONDA Technology, the Platform, and the Aggregated Data. The foregoing also includes
any and all system performance data and machine learning, including machine learning
algorithms, and the results and output of such machine learning unless stated to the
contrary in these MONDA ToS. In addition, Customer acknowledges that MONDA may use,
copy, extract, modify, distribute, analyze, compile and display the Aggregated Data for
routine business purposes, including without limitation for developing, enhancing,
improving, and supporting MONDA products and services, or as required by law, and may
share versions of the Aggregated Data.
10.2 Trademarks. MONDA’s name and logo, and the product names associated with the
Platform are or may be trademarks of MONDA, and no right or license is granted to use
them under these Monda ToS, unless stated to the contrary in these MONDA ToS.
10.3 Rights in Confidential Information. The Disclosing Party reserves all rights in its
Confidential Information. No rights in respect of the Disclosing Party’s Confidential
Information are granted to the Receiving Party and no obligations are imposed on the
Disclosing Party other than those expressly stated in these MONDA ToS. All Intellectual
Property Rights (whether registered or not, and including applications for registration of
any such rights), including (without limitation) patents, trademarks, domain names, rights
in designs and copyrights (including rights in any computer software) and database rights,
invented, devised or originated by either Party in relation to that Party’s Confidential
Information shall belong and continue to belong to the Disclosing Party, and, unless stated
to the contrary in these MONDA ToS, no license is granted to the Receiving Party to use the
same other than for the Purpose, subject to the terms of these MONDA ToS.
10.4 Customer Ideas. Unless explicitly stated to the contrary at the time of their provision to
MONDA, by providing to MONDA any Customer Ideas, Customer agrees and/or undertakes
that (a) Customer Ideas do not contain the confidential or proprietary information of third
parties; (b) MONDA is under no obligation of confidentiality, express or implied, with
respect to the Customer Ideas; and (c) MONDA may have something similar to the
Customer Ideas already under consideration or in development. Customer, as regards
Customer Ideas, grants MONDA an irrevocable, non-exclusive, royalty-free, perpetual,
worldwide license to use, modify, prepare derivative works of, publish, distribute, and
sublicense any Customer Ideas, and Customer irrevocably waives, and causes to be waived,
against MONDA and any users of MONDA’s Platform or any other of MONDA’s or its
Affiliates’ products or services incorporating such Customer Ideas any claims and
assertions of any moral rights contained in such Customer Ideas.
11.1 Confidentiality Obligation. The Receiving Party shall keep the Disclosing Party's
Confidential Information confidential and, except with the prior written consent of the
Disclosing Party, shall (and shall procure that its Representatives to which it discloses the
Disclosing Party’s Confidential Information shall): (a) not use or exploit the Confidential
Information in any way except solely in connection with the Purpose; and/or (b) not disclose
or make available the Confidential Information in whole or in part to any third party, except
as expressly permitted by these MONDA ToS; and/or (c) not copy, adapt, disclose, confirm
or deny (in each case orally, or in writing or in any other way) or otherwise record the
Confidential Information except as strictly necessary for the Purpose (and any such copies,
reductions to writing and records shall be Confidential Information of the Disclosing Party);
and/or (d) not modify, decompile, reassemble, reverse engineer, or otherwise analyze any
parts of the Confidential Information without the Disclosing Party’s explicit written consent.
Notwithstanding the preceding sentence, nothing in this Agreement shall be read or
construed so as to impose an obligation on the Receiving Party that would conflict with any
obligations imposed on the Receiving Party by Applicable Laws, in which case the Receiving
Party shall notify the Disclosing Party of such obligation unless prohibited to do so under
such Applicable Laws.
11.2 Restrictions of Use. The Receiving Party may only disclose the Disclosing Party’s
Confidential Information to those of its Representatives who need to know the relevant
Confidential Information for the Purpose and provided that: (a) it informs the relevant
Representative of the confidential nature of the Confidential Information prior to any such
disclosure; (b) at the request of the Disclosing Party, the Receiving Party shall ensure that
any such Representative signed an undertaking (in such terms as the Disclosing Party may
reasonably require) to be bound by the obligations contained in this Agreement or is under
professional secrecy obligations; (c) at all times, the Receiving Party is responsible for its
Representatives’ compliance with the obligations set out in these MONDA ToS; and (d) it
keeps a written record of each such Representative..
11.3 Security Precautions; Notification. The Receiving Party agrees to: (a) take (at its own
expense) all reasonable security precautions or other steps (at least as great as the
precautions and steps taken in respect of its own Confidential Information, but in any event
in a manner not less than reasonable care appropriate to the nature of the Confidential
Information) to protect the Disclosing Party’s Confidential Information and ensure that the
obligations of these MONDA ToS are met; and (b) notify the Disclosing Party immediately
upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential
Information or any other breach of this section 11 and will cooperate with the Disclosing
Party to prevent further unauthorized use or disclosure.
11.4 Aggregated Data. For the avoidance of doubt, Aggregated Data shall not constitute
Confidential Information of Customer. Aggregated Data shall, however, be Confidential
Information of MONDA.
11.5 Disclosure on Legal Reasons. Other than permitted pursuant to the preceding
paragraphs of this section 11. the Receiving Party may disclose Confidential Information
only to the extent required by Applicable Law, by any governmental or other regulatory
authority or by a court or other authority of competent jurisdiction provided that, to the
extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such
disclosure as possible and, where notice of disclosure is not prohibited and is given in
accordance with this section 11.5, it takes into account the reasonable requests of the
Disclosing Party in relation to the content of such disclosure. Without prejudice to the
generality of the foregoing, the Receiving Party shall use all reasonable efforts to protect
the Confidential Information by appropriate procedural measures, corresponding to the
nature of the Confidential Information.
11.6 Return or Destruction. At the written request of the Disclosing Party, however, at the
latest upon expiration or termination of the Order Form, the Receiving Party shall promptly:
(a) destroy or (at the option of the Disclosing Party) return to the Disclosing Party all
Confidential Information, together with all documents and materials (and any copies) in its
possession or control containing, reflecting, incorporating, relating to, derived from or
based on the Disclosing Party's Confidential Information; (b) erase all the Disclosing Party’s
Confidential Information to the extent possible from its computer systems and any other
device or storage media in its possession or control; (c) undertake not to keep copies or
duplicates of any such items; and (d) certify in writing (signed by an authorized
Representative of the Receiving Party) to the Disclosing Party that it has complied with the
requirements of this section 11.6, provided that a Receiving Party may retain documents
and materials containing, reflecting, incorporating, or based on the Disclosing Party’s
Confidential Information to the extent required by law or any applicable governmental or
regulatory authority, and to the extent reasonable to permit the Receiving Party to keep
evidence that it has performed its obligations under the Order Form including these
MONDA ToS, as well as copies of any computer records and files containing Confidential
Information that have been created by Receiving Party’s routine and automatic archiving /
backup procedures. The confidentiality provisions of these MONDA ToS shall continue to
apply to any such documents and materials retained by the Receiving Party.
11.7 Remedies. The Receiving Party acknowledges that damages alone would not be an
adequate remedy for the breach of any of the provisions of this section 11. Accordingly,
without prejudice to any other rights and remedies it may have, the Disclosing Party shall
be entitled to the granting of equitable relief (including without limitation injunctive relief
and specific performance) in addition to any damages or other remedy to which it may be
entitled, concerning any threatened or actual breach of any of the provisions of this section
11. The Receiving Party shall be liable to the Disclosing Party for the actions or omissions
of its Representatives in relation to the Confidential Information as if they were the actions
or omissions of the Receiving Party.
11.8 Survival. The foregoing confidentiality obligations shall survive termination or expiration
of the Order Form, regardless of cause, and shall continue to apply for a period of five (5)
years from the effective date of such termination or expiration.
11.9 Prevalence. For the avoidance of doubt, the preceding paragraphs of this section 11 shall
not apply where, prior to the Effective Date, the Parties have entered, or, after the Effective
Date, enter into a separate agreement on the Parties’ obligations as regards the respective
other Party’s Confidential Information relating to the Purpose.
12.1 Processing by the Parties. The Parties hereto acknowledge that, for the purposes of
entering into and execution of the Order Form, they may be required to Process Personal
Data of the respective other Party, such other Party’s Representatives, or, in the case of
Customer, other Channel Users. The Parties shall, in such event, always observe the duties
imposed on them in accordance with applicable Data Protection Laws. MONDA shall, in
particular, make available to any Team Member, the privacy policy available in the
respectively current version under [LINK].
12.2 Data Processing on Behalf of Customer. Where Customer submits to the Platform any
Data Offering that consists of, comprises, or contains Personal Data, MONDA Processes
Personal Data as a Processor on Customer’s behalf, who will be the Controller. The
Processing of Personal Data will be carried out in accordance with the obligations and
information set forth in the Data Processing Agreement.
12.3 Evaluation of Compliance. Notwithstanding any liability obligation on the part of MONDA,
Customer, in order to best mitigate the adverse effects of such discovery, shall immediately
inform MONDA if, under Data Protection Laws, any Data Offering, Usage Data, or
Aggregated Data would constitute, consist of or contain a category of data the Processing
of which by MONDA, in accordance with such Data Protection Laws, would impose further
obligations on Customer, MONDA, or both Parties.
13.1 Escalation Procedure. In the event of any controversy or claim arising out of or relating to
the Order Form including these MONDA ToS, the Parties agree to consult and negotiate
with each other and, recognizing their mutual interests, attempt to reach a satisfactory
amicable solution. Notwithstanding either Party’s right to seek injunctive relief, the Parties
shall attempt to find an amicable settlement at least for a period of sixty (60) days upon
occurrence of the controversy or claim, and the Parties shall bring to the competent court
of jurisdiction any controversy or claim only upon expiry of said settlement period.
Governing Law. The Order Form and these MONDA ToS will be governed by the laws of
(a) the state of Delaware if Customer is located in the United States or Canada; or (b) the
Federal Republic of Germany if Customer is located anywhere else, in each case without
regard to the choice or conflicts of law provisions of any jurisdiction, and with the exception
of the United Nations Convention on the International Sale of Goods.
13.2 References. Any references to the application of statutory provisions in these MONDA ToS
shall be for clarification purposes only. Even without such clarification, statutory provisions
of Applicable Laws shall apply unless they are modified or expressly excluded in these
MONDA ToS.
13.3 Jurisdiction. Any disputes, actions, claims or causes of action arising out of or in
connection with the Order Form including these MONDA ToS, regardless of their cause or
legal nature, will be subject to the exclusive jurisdiction of the courts located in (a) the state
of Delaware if Customer is located in the United States or Canada; or (b) Berlin, Germany
(Landgericht Berlin) if Customer is located anywhere else.
13.4 Waiver. The failure of either Party to enforce any right or provision of these MONDA ToS
will not constitute a waiver of such right or provision unless acknowledged and agreed to
by that Party in writing.
14.1 Changes to these Monda ToS. MONDA reserves the right to modify or amend the terms
and conditions of these MONDA ToS, including all other documents referenced herein, on
important grounds, including without limitation (a) changes in the legal or statutory
framework (e.g. in tax or customs law, or due to changes in the validity and effect of
comprehensive trade agreements with relevance for the contractual relationship); (b)
regulatory gaps in the terms and conditions of these MONDA ToS; or (c) changes required
upon a modification of the Platform, including the introduction of new Features and/or
Services. Any such changes shall enter into force only on the date respectively specified by
MONDA and communicated in advance to Customer. For this purpose, MONDA shall
inform Customer in writing in good time, i.e. no later than six (6) weeks before the changes
shall come into force. This reservation of right to make changes shall not include changes
that would unreasonably disadvantage Customer by significantly disturbing the contractual
balance between the Parties, including by introducing changes that would counteract
individual arrangements between MONDA and the Customer in an Order Form.
14.2 Special Right of Termination. In the event of a modification or an amendment to these
MONDA ToS, Customer shall have a special right of termination. Customer may exercise
this right until the announced change takes effect, and it may terminate this MONDA ToS
as of the date the changes take effect.
15.1 Mutual Representations and Warranties. Each Party represents and warrants that: (a) it
is an officially registered company, established in accordance with all provisions of
Applicable Law at such Party’s seat of business, and with a recognized and active legal
entity, that has the power to enter into and perform the Order Form including these
MONDA ToS; (b) the execution of the Order Form has been duly authorized by all necessary
corporate action of the Party; (c) the Order Form including these MONDA ToS constitutes a
valid and binding obligation on it, enforceable in accordance with its terms; (d) neither it
nor its Representatives has or have offered or will offer any illegal bribe, kickback, payment,
gift, or thing of value in connection with the Order Form; and (e) neither the Party itself nor
the natural persons acting on behalf of that Party is not named on any applicable Sanctions
List.
15.2 Entire Agreement. The Order Form including these MONDA ToS and all documents
referenced herein comprises the entire agreement between Customer and MONDA, and it
supersedes all prior or contemporaneous negotiations, discussions or agreements,
whether written or oral, between the Parties regarding its subject matter. No text or
information set forth on any purchase order, preprinted form or document other than an
executed Order Form will add to or vary the terms and conditions of these MONDA ToS.
No modification or amendment of these MONDA ToS shall be effective unless in writing.
15.3 Severability. If any provision of these MONDA ToS is held to be invalid or unenforceable
by the competent court (section 13.4), all other provisions shall remain in full force and
effect.
15.4 Relationship of the Parties. No joint venture, partnership, employment, or agency
relationship exists between Customer and MONDA as a result of the collaboration under
the Order Form including through these MONDA ToS.
15.5 Force Majeure. A Party will not be liable to the other Party for any delay or inability to
perform its obligations or otherwise, if such delay or inability arises from a Force Majeure
Event. In such a Force Majeure Event, the time for performance will be extended for a
period of time equal to the length of the delay or inability to perform. Either Party may
terminate the Order Form if the Force Majeure Event continues for more than eight (8)
weeks.
15.6 Assignment; Change of Control. The Order Form and the rights and obligations
thereunder may not be assigned by either Party, whether by operation of law or otherwise,
without the prior written consent of the other Party, which will not be unreasonably
withheld. Notwithstanding the foregoing, either Party may assign the Order Form in its
entirety, without consent of the other Party, in connection with a merger, acquisition,
corporate reorganization, or sale of all or substantially all of its assets not involving a
competitor of the other Party. In the event of an assignment as described in the preceding
sentence, the assigning Party shall provide the other Party with written notice of the
assignment. Neither Party may assign the Order Form to a competitor of the other Party
without that other Party’s consent. Subject to the foregoing, the Order Form will bind and
inure to the benefit of the Parties, their respective successors and permitted assigns. Any
assignment in violation of this section 15.6 shall be deemed void ab initio. The previous
sentences of this section 15.6 shall not apply, and nothing herein shall restrict the Parties
from assigning to a third party any payment claims existing under the Order Form.
15.7
15.7 Written Form Requirements. If “written form” is required in these MONDA ToS, or if it is
stipulated in these MONDA ToS that declarations of the Parties are to be made “in writing”,
the Parties acknowledge and agree that this written form requirement shall also be
satisfied (a) in case of signing by means of electronic signature (for example via DocuSign);
(b) by electronic exchange of scanned handwritten signed documents; or (c) electronic
messages sent via the Platform. However, the sending of a simple e-mail or other electronic
message, other than electronic messages sent via the Platform, does not comply with the
agreed form.
15.8 Headings. The headings in these MONDA ToS are for convenience purposes only, and they
shall not in any case be understood as to alter, limit, amend, augment, or otherwise change
the meaning of any section of these MONDA ToS.
15.9 Language. These MONDA ToS are written in the English language. For the avoidance of
doubt, the English language version of these MONDA ToS shall prevail over any translation
thereof. However, where a German translation of a word or phrase appears in the text of
these MONDA ToS, the German translation of such word or phrase shall prevail.
16.1 Contracting MONDA Entity. MONDA operates globally but acts through different entities
depending on Customer's location as indicated in the Order Form. The contracting MONDA
entity listed in the table below for Customer’s location is your sole and only contracting
partner with respect to the Order Form (“Contracting MONDA Entity”), and no other
MONDA entity assumes any liability for the Contracting MONDA Entity or should be
considered jointly and severally liable with the Contracting MONDA Entity.
16.2 Notices to MONDA. All notices to the Contracting MONDA Entity must be sent to the
address indicated in the table above, or by e-mail to platform@monda.ai.
16.3 Notices to Customer. All notices to Customer will be sent to the physical address indicated
in the Order Form or the e-mail address provided by Customer in the course of executing
the Order Form, or any other e-mail address provided by Customer at a later point in time.
“Acceptable Use Policy” means the acceptable use policy that regulates the means of using the
Platform for Customer and all Team Members, as published and updated from time to time by
MONDA [LINK].
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common
control with a subject entity; “control”, for purposes of this definition, means direct or indirect
ownership or control of more than fifty percent (50%) of the voting interests of the subject entity,
or the right to direct the affairs of a subject entity;
“Aggregated Data” means statistical information (a) related to Usage Data for MONDA’s internal
and customer reporting purposes in an aggregated form that does not identify Customer, Team
Members, or any other natural person, and/or (b) derived from other Channel User’s data
submitted to the Platform or otherwise made available to MONDA for the purposes of developing
and enhancing the Platform prior to or during the Term;
“Applicable Laws” means all laws, statutes, ordinances, and other governmental authority,
however designated, that apply to a Party and the operation or use of the Platform notwithstanding
the choice of law set forth in section 13.2;
“Availability” means the availability of the SaaS Infrastructure;
“Channel” means a distribution channel that Customer may use to disseminate its Data Offering
to Channel Users;
“Channel Terms” means the separate terms that may be issued by the provider of a Channel for
Customer’s use of such Channel;
“Channel User” means a user of a Channel, which may, at its discretion, contact Customer with
respect to Customer’s Data Offering that Customer has disseminated to that Channel subject to
the terms of these MONDA ToS;
“Commencement Date” means the date as of which Customer may access its Customer Account
on the Platform, thus the date on which MONDA shall activate Customer’s login credentials for the
Platform;
“Confidential Information” means any information disclosed by a Party (the “Disclosing Party”)
to the other Party (the “Receiving Party”), in any form, that is designated confidential or that
reasonably should be understood to be confidential given its nature and the circumstances
surrounding the disclosure. Confidential Information includes, but is not limited to, the MONDA
Technology, the Documentation, MONDA’s pricing, and the terms and conditions of the Order
Form and these MONDA ToS. Notwithstanding the foregoing, Confidential Information shall not
include any information that: (i) is or becomes generally known to the public without breach by the
Receiving Party of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party
prior to its disclosure by the Disclosing Party; (iii) is received from a third party without an obligation
of confidentiality; or (iv) was independently developed by the Receiving Party without use of the
Disclosing Party's Confidential Information;
“Controller” means the entity that alone or jointly with others determines the purposes and means
of the Processing of Personal Data.
“Customer Account” means the user account for the Platform that Customer has registered for in
accordance with these MONDA ToS;
“Customer Ideas” means any of Customer’s suggestions, ideas, enhancement requests, feedback,
recommendations or other information relating to the Platform or any other Services, whether
provided or made available to MONDA in written or oral form or by any other means;
“Data Offering” means any Data Product Customer provides, submits or uploads to a Channel
through the Platform for the Purpose;
“Data Processing Agreement” means the agreement made between MONDA as a Processor of
Personal Data for which Customer is the Controller under applicable Data Protection Laws as made
available at [LINK], incorporated herein by reference and, thus, concluded between the Parties as
of the Effective Date;
“Data Product” means the part of Customer’s Data Offerings that are set up with descriptive
content and information about the Data Resources that Customer wishes to offer to Channel
Users;
“Data Protection Laws” means all applicable laws and regulations relating to Personal Data
protection or privacy laws that apply to Processing of Personal Data under the Order Form
including these MONDA ToS;
“Data Resource” means any data types that Customer describes in a Data Product in formats of
flat files, APIs, data feeds, data samples, databases, data platforms, or data related services;
“Data Subject” means the individual to whom Personal Data relates;
“Documentation” means the entirety of all printed or online documentation containing the
performance description of the Platform (including the Plan Overview) and the instruction
materials, as provided or made available to Customer and/or Team Members, and as updated from
time to time by MONDA, describing the use and operation of the Platform;
“Downtime” means any timespan in which Customer is unable to transmit data through and/or
receive data from the Platform, but does not include the effects of any Internet, Customer network,
or other connectivity issues which are not within MONDA’s control;
“Effective Date” means the date on which Customer has signed in writing or otherwise declared
its acceptance of the terms and conditions comprised in an Order Form;
“Emergency Maintenance” means maintenance works which may cause a Downtime or otherwise
delay or interrupt Customer’s use of the Platform, and the necessity of which is not known to
MONDA in advance of its occurrence;
“Feature” means a feature of the Platform the availability of which may be dependent on the
Subscription Plan selected by Customer;
"
"Force Majeure Event” means fire, natural disaster, pandemic or epidemic disease, act of
government, riot, civil disturbance, or any other cause beyond a Party’s reasonable control;
“Initial Term” means a period of twelve (12) months commencing at the Commencement Date,
unless agreed otherwise in writing between the Parties;
“Intellectual Property Rights” means any inventions, patent applications, patents, design rights,
copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-
how and trade secret rights, and all other Intellectual Property Rights, derivatives thereof and all
renewals thereto as well as other forms of protection of a similar nature anywhere in the world;
“Limitation” means a limitation concerning Customer’s use of the Platform and/or any Feature or
Service as set forth for the Subscription Plan selected by Customer;
“MONDA Technology” means all MONDA technology (including software, algorithms, data
aggregation processes, data analyses, user interfaces, trade secrets, know-how, techniques,
designs and other tangible or intangible technical material or information) which MONDA makes
available to Customer in providing the Platform;
“Payment Fees” means any fees imposed by banks, payment service providers or other parties
involved in a payment procedure, including, for example, fees for cross-border transfer of money;
“Personal Data” means information relating to an identified or identifiable natural person that is
Processed by the Parties for the purposes of, or subject to the provisions of, the Order Form
including these MONDA ToS; for purposes of these Monda ToS: (i) where applicable Data Protection
Laws define Personal Data more broadly than defined in these MONDA ToS, then the term
Personal Data is defined as set forth in applicable Data Protection Laws; (ii) the term Personal Data
shall be construed to include any equivalent term that may be used in applicable Data Protection
Laws, including without limitation personal information or personally identifiable information; and
(iii) Personal Data shall not include data that is excluded from the scope of applicable Data
Protection Laws;
“Plan Overview” means an overview of all Features, Options, Limitations, and Services prepared
and provided by MONDA including all Subscription Fees or other remuneration payable by
Customer to MONDA, as published and updated from time to time by MONDA under [LINK] or any
other link communicated to Customer;
“Platform” means the online data commerce platform, as reflected in the Documentation, that has
been developed and is operated by MONDA, and that is made available to Customer for the
Purpose at a website designated by MONDA;
“Process” means any operation or set of operations which is performed upon Personal Data,
whether or not by automatic means, such as collection, recording, organization, structuring,
storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination, restriction, erasure or
destruction;
“Processor” means the entity which Processes Personal Data on behalf of the Controller;
“Purpose” means the purpose for which MONDA grants to Customer access and the necessary
rights of use to the Platform, namely to enable Customer, within the Territory, to distribute through
the Channels its Data Offerings, in order to enable Customer to commercially exploit its Data
Offerings by establishing contact to other Channel Users;
“Renewal Term” means a period of twelve (12) months or a period of time equivalent to the Initial
Term, whatever is longer, unless agreed otherwise in writing between the Parties;
“Representatives” means the employees, agents, officers, professional advisers (including any
merchant bankers, stockbrokers, consultants, accountants, solicitors, contractors, sub-contractors
and other professionals (including partners in and directors and employees of such professional
advisers) and other representatives of a Party advising in relation to the Purpose;
“Restricted Person” means any individual or entity listed, or 50% or more (direct or indirectly)
owned or controlled by (if control is used under the relevant Sanctions Regulations) any party
listed, on a Sanctions List;
“SaaS Infrastructure” means the IT infrastructure procured by MONDA from its suppliers, run and
maintained by such suppliers, and used by MONDA to provide to Customer the Platform;
“Sanctions Authority” means any competent authority of: (a) the United States of America; or (b)
the European Union; or (c) the Federal Republic of Germany in charge of the enactment,
administration, implementation and enforcement of Sanctions Regulations;
“Sanctions Regulations” means any applicable economic, financial or trade sanctions laws,
regulations, embargoes or other restrictive measures enacted, administered, implemented and/or
enforced from time to time by any Sanctions Authority;
“Sanctions List” means any of the lists of designated sanctions targets whose assets are frozen
and maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (the
specially designated nationals or blocked persons lists), by the European Union (the consolidated
list of persons, groups and entities subject to Sanctions Regulations) or the Federal Republic of
Germany, each such list as amended, supplemented or substituted from time to time;
“Scheduled Maintenance” means maintenance works which may cause a Downtime or otherwise
delay or interrupt Customer’s use of the Platform, and the necessity of which is known to MONDA
in advance of its occurrence; MONDA will provide Customer with an advance notice prior to
Scheduled Maintenance and shall schedule Scheduled Maintenance to the extent practicable
during periods of non-peak usage among its customers base;
“Service” means any service rendered by MONDA to Customer in addition to the provision of a
Customer Account and the grant of rights concerning the Platform, subject to the Subscription Plan
selected and paid by Customer;
“Subscription Fees” means the fees payable by Customer in accordance with the Plan Overview
for the Subscription Plan selected by Customer;
“Subscription Plan” means the subscription plan for Customer’s use of the Platform, including
certain Features, Limitations and Services, as offered by MONDA and selected by Customer;
“Taxes” means any taxes, levies, duties or similar governmental assessments of any nature,
including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction
based on amounts paid or payable under the Order Form;
“Team Member” means an individual authorized by Customer to use the Platform and access the
Platform;
“Term” means the Initial Term and all Renewal Terms (if any) of the Order Form together;
“Territory” means a certain territory, location, Customer business site or establishment, to which
Customer’s rights to use the Platform are limited pursuant to the Documentation; for the
avoidance of doubt, even if the Documentation does not explicitly state any Territory, the Territory
never includes, and Customer must never use the Platform in any country or region that is on an
embargo list of the United States of America, the Federal Republic of Germany, or the European
Union;
“Usage Data” means data on Customer’s and its Team Members’ use of the Platform and/or any
Channel.
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