BY USING THE WEBSITE OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. Any individual using the Website or Services on behalf of a company further represents and warrants that they are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
5. LIMITED LICENSE TO USE THE WEBSITE AND SERVICES
Subject to Your compliance with the terms and conditions of this Agreement, Monarca grants You a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Website and Services. The Website, or any portion of the Website, and, as applicable, the Services, may not be reproduced, relicensed, duplicated, copied, modified, sold, resold, transferred, exchanged, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of Monarca. Except as expressly set forth herein, this Agreement grants You no rights in or to the intellectual property of Monarca or any other party. The license granted in this section is conditioned on Your compliance with the terms and conditions of this Agreement. Your rights under this section will immediately terminate in the event that You breach, actually or potentially in the sole judgment of Monarca, any provision of this Agreement.
6. LIMITED LICENSE TO USE AND REPRODUCE INSTRUCTIONAL MATERIALS
Monarca creates and provides worksheets and other educational materials, which may include images, artwork, text, and other creative material (collectively, the “Instructional Materials.”) The Instructional Materials created by Monarca are licensed subject to the terms of this Agreement, and are not sold. A “Unit” means a single license unit of specific Instructional Materials, to be used by a single student.
(a) LICENSE GRANT AND RESTRICTIONS
Subject to the terms of this Agreement, Monarca grants You a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to print, photocopy, or otherwise reproduce one (1) physical copy of the Instructional Materials for each Unit you have purchased as part of your Membership subscription (“Membership”) with Monarca, or in the case of customized curricular Instructional Materials, as part of your customized license (“License”). The rights granted to You in this subparagraph are subject to the following restrictions: with respect to any given Unit, You shall not (i) print, photocopy, or otherwise reproduce more than one (1) copy of the Instructional Materials for each Unit of such Instructional Materials purchased by You as part of your Membership or Licensewith one (1) single exception per Unit for a single replacement copy, or (ii) modify or create derivative works of any Instructional Materials. All copyright and other proprietary notices on any Instructional Materials must be retained on all copies thereof.
You acknowledge and agree that all rights, including copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Instructional Materials are owned by Monarca and/or Monarca’s suppliers. The provision of Instructional Materials to You through the Services does not transfer to You or any third party any intellectual property rights thereto. Monarca and its suppliers reserve all rights not granted in this Agreement. Monarca grants no implied licenses in this Agreement.
7. EFFECT OF TERMINATION UPON LICENSES
Your prompt payment of the Membership or License Fees is an essential condition for your access and limited license to the Services and Instructional Materials. Absent prompt payment of Membership or License Fees, Monarca reserves the right to immediately terminate this Agreement and Your Membership or License and revoke Your access and any limited license granted to use or reproduce the Instructional Materials. Any termination of this Agreement automatically terminates all licenses granted to You under this Agreement, including all rights to use the Website, Services and to use or reproduce for use the Instructional Materials. Additionally, Your licensed use of the Instructional Materials is limited entirely to the number of Units comprising Your Membership or License and the duration of Your Membership or License. You must permanently delete all digital copies at the end of Your Membership, or License, unless You promptly renew Your Membership, or License, at the agreed-upon term. Upon termination, Monarca may, but has no obligation to, in Monarca’s sole discretion, rescind any services, including without limitation, Membership or License services, and/or delete from Monarca’s systems all Your Personal Information and any other files or information that You made available to Monarca or that otherwise relate to Your use of the Website, Services, or Instructional Materials. Subsequent to termination, Monarca reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Website, Services, and Instructional Materials, including without limitation technological barriers such as IP blocking and direct contact with Your Internet Service Provider. For additional information, see the section concerning Termination, below. ALL FEES ARE NON-REFUNDABLE UPON TERMINATION, INCLUDING ANY UNUSED PORTION OF ANY FEE AT THE TIME OF TERMINATION.
8. NO RELIANCE ON THIRD-PARTY CONTENT
Opinions, advice, statements, or other information made available by means of the Website and Services by third-parties, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. MONARCA DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY INFORMATION ON THE WEBSITE; OR (II) ADOPT, ENDORSE, OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY A THIRD-PARTY BY MEANS OF THE WEBSITE AND SERVICES. UNDER NO CIRCUMSTANCES WILL MONARCA BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE WEBSITE OR TRANSMITTED TO OR BY ANY THIRD-PARTY.
9. ASSUMPTION OF RISK; RELEASE
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE WEBSITE AND SERVICES OR USING OR REPRODUCING FOR USE THE INSTRUCTIONAL MATERIALS. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY MONARCA AND ITS STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, CONSULTANTS, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “MONARCA PARTIES”) FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, THAT MAY RESULT FROM YOUR USE OF THE WEBSITE AND SERVICES AND USE OR REPRODUCTION OF THE INSTRUCTIONAL MATERIALS.
10. USER INFORMATION; PASSWORD PROTECTION
You represent and warrant that all user information You provide in connection with Your use of the Website and Services will be current, complete, and accurate, and that You will update that information as necessary to maintain its completeness and accuracy.
The primary account holder using the Website, Services, and Instructional Materials (“Primary User”) may be asked by Monarca to create an account, user name, and password in connection with that use. Upon a written request to Monarca that the primary account holder (e.g., the administrator of a school account) desires to grant any officers, directors, employees (including teachers), agents, affiliates, consultants, representatives, sublicensees, successors, and/or assigns (collectively, “Secondary Users”) access to the Primary User’s account on behalf of the Primary User, Monarca may create user names and passwords for each Secondary User. Primary Users are entirely responsible for maintaining the confidentiality of their own passwords and those of their Secondary Users. Secondary Users are entirely responsible for maintaining the confidentiality of their own passwords as well. You must promptly notify Monarca if Your user name or password is lost or stolen.
You represent and warrant that all account information You provide in connection with Your use of the Website, Services, and Instructional Materials will be current, complete, and accurate, and that You will update that information as necessary to maintain its completeness and accuracy. If any information on file is inaccurate or changed, including without limitation the employment status of any Secondary Users on the Primary User’s account, Primary User represents and warrants that he or she will immediately notify Monarca of the changes and provide updated accurate information.
You may not use the user name or password of any other individual at any time, including without limitation those of other users on an account to which You have access through an individualized username and password. You agree to notify Monarca immediately of any unauthorized use of Your account, user name, and/or password, or those of Secondary Users on Your school account. Monarca shall not be liable for any loss that You incur as a result of someone else using Your account, user name, and/or password, or those of other users on an account to which You have access, either with or without Your knowledge. You may be held liable for any Claims or losses incurred by the Monarca Parties due to someone else’s use of Your account, user name, or password, or Your use of someone else’s account, user name, or password, including without limitation Your use of a user name and password of another user on an account to which You have access through an individualized username and password
11. YOUR INTERACTIONS WITH OTHER MEMBERS
You are solely responsible for Your interactions with other Monarca users. You agree to hold Monarca harmless in connection with any dispute or claim You make against any other user. You acknowledge and understand that Monarca has the right but not the obligation to: (a) screen its users; (b) inquire into the backgrounds of its users; or (c) review or verify the statements of its members. Monarca does not represent, warrant, endorse, or guarantee the conduct of its users. You must conduct all necessary, appropriate, and/or prudent investigations, inquiries, research, and due diligence with respect to any user, user conduct, and/or user content. In no event shall Monarca be liable for indirect, special, incidental, or consequential damages arising out of or relating to any user’s conduct in connection with such user’s use of the services, including for example bodily injury, property damage, wrongful death, emotional distress, loss of privacy or any other damages resulting from communications or meetings between members.
12. CONSENT TO RECEIVE EMAIL FROM MONARCA
By subscribing for Membership through the Website, or purchasing a License through the Website, You thereby consent to receive periodic email communications regarding the Services and Instructional Materials, new product offers, promotions, and other matters.
13. MONARCA’S MEMBERSHIP OR LICENSE FEES
(a) RESERVED RIGHTS
You acknowledge and agree that Monarca reserves the right to charge for limited access to the Website, limited use of the Services, and limited use and reproduction of the Instructional Materials, and to change its fees from time to time in Monarca’s sole discretion. ALL FEES AND CHARGES ARE NONREFUNDABLE AND THERE ARE NO REFUNDS AND THERE ARE NO CREDITS FOR PARTIALLY USED MEMBERSHIP TERMS OR LICENSE TERMS. MONARCA RESERVES THE RIGHT, IN MONARCA’S SOLE DISCRETION, TO CHANGE THE FEES AND CHARGES IN EFFECT, OR TO ADD NEW FEES AND CHARGES, BY POSTING SUCH CHANGES ON THE WEBSITE OR PROVIDING NOTICE TO YOU.
By opting for Membership subscription, purchasing a License, or purchasing other paid services, You authorize Monarca, or its payment processor, to charge the applicable fees to the credit card, debit card, or other payment method You provide, in addition to applicable sales taxes and other applicable taxes. Use of PayPal to pay Monarca constitutes Your binding Agreement to all applicable terms in the PayPal Terms of Services. In the event of a discrepancy pertaining to fee collection, You have ten business days from the date of the completed charge to send notification to Monarca about the discrepancy, after which all charges are no longer subject to change. Monarca’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement shall not affect Monarca’s subsequent ability to exercise such right or require such performance at any time thereafter. Nor shall Monarca’s waiver of Your breach constitute Monarca’s waiver of any subsequent breach.
(b) MEMBERSHIP AND LICENSE FEES
To qualify for limited term access to Instructional Materials, either through Membership or a License you must maintain a current balance, renewing the license at the end of each term (and thereby become and stay a “Member,” or for customized curriculum customers, maintain the License). In exchange for providing limited term access to the Instructional Materials, Monarca shall charge applicable “Membership or License Fees” as publicized on the website and/or provided in customized curriculum estimates. Applicable fees vary, and are due and collected in full at the beginning of each term that users renew their license for the services. All fees are non-recurring and do not automatically renew.
Your limited term access to the Instructional Materials will terminate at the end of the term of Your Membership or License, which includes terminating all rights established in this Agreement held by You (including without limitation, the rights to use or reproduce the Instructional Materials) or third parties who have received the copies of the material from You (again, including without limitation, the rights to use or reproduce the Instructional Materials), until You renew Your Membership or License and pay the applicable fees for a new term.
(c) FEES FOR ADDITIONAL PAID SERVICES
Monarca shall also charge additional fees, beyond Membership fees, for users who avail themselves of additional services. Fees for these services are due and collected in full before the services are rendered.
14. THIRD-PARTY WEBSITES
The Website is linked with the websites of third parties (“Third-Party Websites”), some of whom may have established relationships with Monarca and some of whom may not. Monarca does not have control over the content and performance of Third-Party Websites. Monarca has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on or through third-party websites. Accordingly, Monarca does not represent, warrant, or endorse any third-party website, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through third-party websites. Monarca disclaims, and You agree to assume, all responsibility and liability for any damages or other harm, whether to You or to third parties, resulting from Your use of third-party websites.
15. USER CONTENT
You hereby represent and warrant that You own all rights, title, and interest in and to User Content or are otherwise authorized to grant the rights provided the Monarca Parties under this section. You further represent and warrant that all User Content fully complies with Monarca’s prohibitions against Objectionable Content, as detailed in Section 16.
16. PUBLIC FORUMS
“Public Forum” is any area, site or feature offered as part of the Website (including without limitation discussion forums, message boards, blogs, chat rooms, emails or personal messaging features) that enables You (a) to upload, submit, post, display, perform, distribute, and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other Website members or other Website visitors. You acknowledge that Public Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything You upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum may be viewed on the Internet by the general public, and therefore, You have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content You upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum and for the consequences of submitting or posting same. Monarca disclaims any perceived, implied, or actual duty to monitor Public Forums and specifically disclaims any responsibility or liability for information provided thereon.
17. YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
You agree and understand that You may be held legally responsible for damages suffered by other Website members or third-parties as the result of Your remarks, information, feedback, or other content posted or made available on the Website that is deemed defamatory or otherwise legally actionable. Under the Federal Communications Decency Act of 1996, Monarca is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback, or other content posted or made available on the Website.
18. OBJECTIONABLE CONTENT
19. PROHIBITED USES
Monarca imposes certain restrictions on Your use of the Website and the Services. You represent and warrant that You will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to Monarca or any other member; (c) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (d) while, using the Website and Services, use “ad blocking” software or similar built-in web browser options designed to hide, block or prevent the proper display of online advertising; (e) modify or change the placement and location of any advertisement appearing on the Website; (f) harvest or otherwise collect information about Monarca users, including email addresses and phone numbers; (g) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third-party websites; (h) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (i) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorization; (j) interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (k) use the Website or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (l) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website or Services; or (m) attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Monarca Parties in providing the Website or Services. Any violation of this section may subject You to civil and/or criminal liability.
20. INTELLECTUAL PROPERTY
(a) COMPLIANCE WITH LAW
You represent and warrant that, when using the Website, Services, and/or the Instructional Materials, You will obey the law and respect the intellectual property rights of others. Your use of the Website, Services, and Instructional Materials is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. Subject to the terms of this Agreement, You further agree not to upload, post, transmit, display, perform, or distribute any content, information or other materials in violation of Monarca’s or any third-party’s copyrights, trademarks, or other intellectual property or proprietary rights. You shall be solely responsible for any violations of any laws and for any infringements of third-party rights caused by Your use of the website and services. Your bear the sole burden of proving that content, information, or other materials do not violate any laws or third-party rights.
Monarca and the “Monarca logo” (collectively, the “Monarca Marks”) are trademarks or registered trademarks of Monarca. Other trademarks, service marks, graphics, logos, and domain names appearing on the Website may be the trademarks of third-parties. Neither Your use of the Website, Services, or Instructional Materials, nor this Agreement grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the Monarca Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the Monarca Marks generated as a result of Your use of the Website and Services will inure to the benefit of Monarca, and You agree to assign, and hereby do assign, all such goodwill to Monarca. You shall not at any time, nor shall You assist others to, challenge Monarca’s right, title, or interest in or to, or the validity of, the Monarca Marks.
(c) COPYRIGHTED MATERIALS; COPYRIGHT NOTICE
All content and other materials available through the Website and Services, including without limitation the Instructional Materials, Monarca logo, design, text, graphics, and other files, and the selection, arrangement, and organization thereof, are either owned by Monarca or are the property of Monarca’s licensors and suppliers. Except as explicitly provided, neither Your use of the Website, Services, or Instructional Materials, nor this Agreement grant You any right, title, or interest in or to any such materials.
(d) DMCA POLICY
As Monarca asks others to respect Monarca’s intellectual property rights, Monarca respects the intellectual property rights of others. If You believe content located on or linked-to by the Website violates Your copyright, You are encouraged to please immediately notify Monarca by means of emailed notice (“Infringement Notice”), providing the information described herein. If Monarca takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by such party to Monarca. Please be advised that You may be held liable for damages based on certain material misrepresentations contained in an Infringement Notice. Thus, if You are not sure content located on or linked-to by the Website infringes Your copyright, You should consider first contacting an attorney.
All Infringement Notices should include the following:
1. A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
2. An identification of the copyright claimed to have been infringed;
3. A description of the nature and location of the material that You claim to infringe Your copyright, in sufficient detail to permit Monarca to find and positively identify that material;
4. Your name, address, telephone number and email address; and
5. A statement by You: (i) that You believe in good faith that the use of the material that You claim to infringe Your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in Your Infringement Notice is accurate, and that You are either the copyright owner or a person authorized to act on their behalf.
Infringement Notices should be sent to the email address DMCA at MonarcaLanguage dot com with the subject line “DMCA Notice – [INSERT YOUR NAME OR YOUR COMPANY’S NAME]”.
Monarca will respond to all such notices, including as required or appropriate by removing the offending material or disabling all links to the offending material.
21. DISCLAIMERS; LIMITATION OF LIABILITY
(a) NO WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, MONARCA, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE OR INSTRUCTIONAL MATERIALS, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NO ENCUMBRANCE, TITLE, OR WORKMANLIKE QUALITY, IN ADDITION TO ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALL SERVICES ARE PROVIDED ON AN AS-IS BASIS WITH NO GUARANTEED OUTCOME. NEITHER MONARCA NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE, THE SERVICES, OR THE INSTRUCTIONAL MATERIALS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE LIABILITY OF MONARCA FOR DAMAGES ARISING OUT OF THE FURNISHING OF SERVICES PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS, OR OTHER DEFECTS, REPRESENTATIONS, OR ARISING OUT OF THE FAILURE TO THE FURNISH SERVICES, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, OR ANY OTHER DAMAGE OCCURRING, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. MONARCA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF MONARCA, MONARCA PARTIES, OR MONARCA USERS, OR THEIR AGENTS OR REPRESENTATIVES. YOU HEREBY AGREE THAT MONARCA PARTIES SHALL HAVE NO LIABILITY TOWARDS YOU OR ANYONE ELSE FOR ANY ACTION OR INACTION TO ENFORCE THESE TERMS AGAINST ANY ACTUAL OR POTENTIAL VIOLATION IN CONTENT OR CONDUCT BY ANY USER OR THIRD PARTY.
(b) YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD MONARCA OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC DISK FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
(c) LIMITATION OF LIABILITY
THE LIABILITY OF MONARCA AND ITS LICENSORS AND SUPPLIERS IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL MONARCA OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO MONARCA OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF MONARCA AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES SHALL BE $50.00. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN MONARCA AND YOU. THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND MONARCA OR BETWEEN YOU AND ANY OF MONARCA’S LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. MONARCA’S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS, AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
22. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Website and Services, and Your use or reproduction of the Instructional Materials, will be in accordance with this Agreement and any other Monarca policies, and with any applicable laws or regulations.
23. INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You (the “Indemnitor”) agree to defend, indemnify and hold harmless Monarca and the Monarca Parties (collectively, the “Indeminitees”) from and against any and all claims, actions, demands, causes of action, and other proceedings (collectively, “Claims”), including but not limited to legal costs and fees, arising out of or relating to: (i) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) Your access to or use of the Website, the Services, or the Instructional Materials; (iii) Your provision to Monarca or any of the Indemnitees of information or other data; or (iv) Your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (v) Your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify, or hold harmless any, each, and/or all Indeminitees. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
24. GOVERNING LAW; JURISDICTION AND VENUE
The Website, Services, Instructional Materials, and this Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of Washington and shall be governed by and construed in accordance with the laws of the State of Washington without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE WEBSITE, SERVICES, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
(a) BINDING ARBITRATION
If You and Monarca cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s). YOU HEREBY ACKNOWLEDGE THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT WITH A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), available at the AAA website www.adr.org. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Monarca may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator.
(b) RESTRICTIONS AGAINST JOINDER OF CLAIMS
You and Monarca agree that any arbitration shall be limited to each Claim individually. To the full extent under the law, (1) no arbitration shall be joined with any other arbitration; (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures; and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.
(c) REMEDIES IN AID OF ARBITRATION; EQUITABLE RELIEF
This Agreement to arbitrate will not preclude You or Monarca from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this Agreement to arbitrate will not preclude You or Monarca from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. As used herein, “Court of Competent Jurisdiction” means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in the State of Washington.
(d) LAWS OF THE STATE OF WASHINGTON
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of Washington and shall be governed by and construed in accordance with the laws of the State of Washington without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS LOCATED IN OR NEAREST TO THE STATE OF WASHINGTON. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
(a) BY MONARCA
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, MONARCA RESERVES THE RIGHT TO, IN MONARCA’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE WEBSITE AND/OR SERVICES TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION PROMPT PAYMENT FOR ALL SERVICES AND INSTRUCTIONAL MATERIALS, OR OF ANY APPLICABLE LAW OR REGULATION.
(b) AUTOMATIC TERMINATION UPON BREACH BY YOU
This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by Monarca.
(c) BY YOU
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to Monarca notice of Your intention to do so, in the manner required by this Agreement.
(d) EFFECT OF TERMINATION
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Website, Services, and/or to use or reproduce for use the Instructional Materials. Additionally, Your licensed use of the Instructional Materials is limited entirely to the duration of Your Membership, and You must permanently delete all digital copies and return all unused paper copies to Monarca at the end of Your Membership if You do not promptly renew Your Membership subscription. Upon termination, Monarca may, but has no obligation to, in Monarca’s sole discretion, rescind any services and/or delete from Monarca’s systems all Your Personal Information and any other files or information that You made available to Monarca or that otherwise relate to Your use of the Website, Services, or Instructional Materials. Subsequent to termination, Monarca reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Website, Services, and Instructional Materials, including without limitation technological barriers such as IP blocking, direct contact with Your Internet Service Provider, and full enforcement of its intellectual property rights in a court of competent jurisdiction or otherwise. ALL FEES ARE NON-REFUNDABLE UPON TERMINATION, INCLUDING ANY UNUSED PORTION OF ANY FEE AT THE TIME OF TERMINATION.
(e) LEGAL ACTION
If Monarca, in Monarca’s discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, Monarca will be entitled to recover from You as part of such legal action, and You agree to pay, Monarca’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The Monarca Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.
Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 1, 2-4, 8-9, 10-12 and 13-27 will survive any termination of this Agreement.
All notices required or permitted to be given under this Agreement must be in writing. Monarca shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Monarca. You agree that any notice received from Monarca electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH MONARCA IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY MONARCA OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Monarca by means of email to Info at MonarcaLanguage dot com
This Agreement constitutes the entire Agreement between Monarca and You concerning Your use of the Website and Services, and will be amended by incorporating Monarca’s invoices to You regarding Your use or reproduction of the Instructional Materials. This Agreement may only be otherwise modified by a written amendment signed by an authorized executive of Monarca or by the unilateral amendment of this Agreement by Monarca and by the posting by Monarca of such amended version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of Monarca. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns. You and Monarca are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Except for the Monarca Parties and the Indemnified Parties as and to the extent set forth in Sections 9, 10, 15, 19, 21, 23, and 25, and Monarca’s licensors and suppliers as and to the extent expressly set forth in Section 19, there are no third-party beneficiaries to this Agreement. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by You would cause irreparable injury to Monarca and Monarca’s licensors and suppliers, and would therefore entitle Monarca or Monarca’s licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.