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This Agreement (this “Agreement”) governs your test use of a version of the proprietary software platform, including any associated web interfaces, and mobile applications, (the “Monument Cloud”) made available to you by Monument Labs, Inc. (“Monument”) hereunder, which is currently under development and is designed to serve as a private photo backup and organization service to upload media files through the Monument Cloud ("Customer Files"). By clicking on the “I accept” below or by installing or using the Monument Cloud or any portion thereof, you accept all terms of this Agreement. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must stop using Monument Cloud.
1. Access and Use Rights for Testing and Evaluation
Monument grants you a limited, personal, nonexclusive, nontransferable, non-sublicensable, revocable right, during the term of this Agreement, to access and use the Monument Cloud, solely for the personal use only, and not for general production or any other commercial purposes; provided that you do not (and do not permit any other person or entity to): (a) use the Monument Cloud in any manner beyond the scope of the rights expressly granted to you in this Agreement, (b) modify or create derivative works of the Monument Cloud, in whole or in part; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Monument Cloud; (d) sell, resell, rent or lease use of the Monument Cloud to any other person or entity, or otherwise allow any other person or entity to use the Monument Cloud for any purpose; (e) remove or alter any proprietary notice on or in the Monument Cloud; (f) use the Monument Cloud to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data for which you do not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Monument Cloud; (g) interfere with, or disrupt the integrity or performance of, the Monument Cloud, or any data or content contained therein or transmitted thereby; (h) access the Monument Cloud (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Monument Cloud features provided by Monument for use expressly for such purposes; or (i) use the Monument Cloud or any other Confidential Information for competitive analysis or benchmarking purposes, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Monument Cloud.
2. Feedback and Ownership
You will use good faith efforts to use the Monument Cloud and cooperate with Monument in evaluating the Monument Cloud, and work with Monument to identify and help resolve any errors, problems or defects in the Monument Cloud. Any suggestions, descriptions, test results, requests or other feedback provided orally or in writing by you to Monument regarding the Monument Cloud will constitute “Feedback” and will be solely owned by Monument. You assign all of your right, title and interest (including all intellectual property rights) in and to any Feedback to Monument and will take all actions and execute all documents requested by Monument to give effect to such assignment. As between Monument and you, Monument will solely own all right, title and interest (including all intellectual property rights) in and to the Monument Cloud and all copies, improvements, modifications, and derivative works thereof.
2.1 Use of Customer Files
You understand that all content stored on the Monument Cloud is encrypted using the secure private key generated by the Monument Cloud app which is controlled by the client software automatically during the initial sign up. According to the best of Monument's knowledge and the current state of the art technology, encrypted content cannot be decrypted or inverted by any unauthorized third party.
This Agreement does not grant Monument any ownership over the Customer Files, except for the limited rights that are reasonably necessary for Monument to provide the Monument Cloud service, in particular to store, backup or organize Customer Files.
3. Confidential Information
“Confidential Information” means: (a) Any results or output produced by, and features, functionalities, layouts, interfaces, designs and other information relating to, the Monument Cloud and all Feedback; (b) any business or technical information of Monument, including any information relating to Monument’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is identified at the time of disclosure as confidential or, given the circumstances of disclosure or the nature of the information, reasonably should be considered to be confidential. Confidential Information does not include any information that: (a) is or becomes generally known to the public through no fault or breach of this Agreement by you; (b) is rightfully known by you at the time of disclosure without an obligation of confidentiality (as can be demonstrated by written records or other reasonable evidence); (c) is independently developed by you without access to or use of any Confidential Information (as can be demonstrated by written records or other reasonable evidence); or (d) is rightfully obtained by you from a third party without restriction on use or disclosure (as can be demonstrated by written records or other reasonable evidence).
You will not disclose any Confidential Information to any third party or use any Confidential Information except as necessary to test and evaluate the Monument Cloud and to provide Feedback in accordance with this Agreement. You will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure. You may disclose Confidential Information only to those of your employees who have a bona fide need to know such Confidential Information for the testing and evaluation of the Monument Cloud and providing Feedback, provided that each such employee first executes or is otherwise already bound by a written agreement that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement.
4.1 Warranty Disclaimers
Monument Cloud and Confidential Information are being provided “AS IS” without any warranties. MONUMENT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, MONUMENT HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE MONUMENT CLOUD WILL BE ERROR- FREE, BUG-FREE OR UNINTERRUPTED.
4.2 Acknowledgment of Development Status of the Monument Cloud
You acknowledge and agree that: (a) the Monument Cloud is still under development and has not been commercially released by Monument or otherwise disclosed to the public; (b) the Monument Cloud is not in final form and may not operate properly or be fully functional; (c) the Monument Cloud may contain errors, design flaws or other problems; (d) it may not be possible to make the Monument Cloud fully functional; (e) the information obtained using the Monument Cloud may not be accurate; (f) use of the Monument Cloud may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss, and it is your responsibility to back up and restore any data that you store in or transmit through the Software; (g) Monument is under no obligation to release a commercial version of the Monument Cloud; and (h) Monument has the right unilaterally to abandon development of the Software and services, at any time and without any obligation or liability to you.
5. Limitation on Liability
IN NO EVENT WILL MONUMENT OR ANY OF ITS AFFILIATES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE MONUMENT CLOUD OR FOR ANY ERROR OR DEFECT IN THE MONUMENT CLOUD, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT MONUMENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
6. Term And Termination
This Agreement will extend for a period of six (6) months, unless sooner terminated as provided below or extended by mutual written agreement of the parties. Either party may terminate this Agreement at any time, with or without cause, upon seven (7) days' written notice to the other party. Monument may terminate this Agreement immediately upon written notice to you in the event that you breach Section 1 or Section 3. Upon any termination or expiration of this Agreement: (a) the rights and licenses granted to you under this Agreement will automatically terminate; and (b) as soon as reasonably practicable (and in any event within seven (7) days) after any such termination or expiration, you will be responsible to download and remove all uploaded Customer Files to the Monument Cloud and destroy all copies of the Monument Cloud and any other Confidential Information (including any notes derived therefrom) in your possession or control, and will certify in writing to Monument that you have complied with the foregoing. The provisions of Sections 2-7 will survive any termination or expiration of this Agreement.
7. General Provisions
You may not assign this Agreement or any of your rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of Monument, and any attempt to do so without consent will be of no effect. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois (excluding its body of law controlling conflicts of law). If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. This Agreement constitutes the entire and exclusive agreement between the parties pertaining to its subject matter, and supersedes all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may be modified, or any rights under it waived, only by a written document executed by both parties. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.