Monk Master Subscription Agreement

This Master Subscription Agreement (the “Agreement”) is entered into between Endurance Solutions Inc., doing business as Monk (“Monk”), and the customer identified on an Order Form (“Customer”). By executing an Order Form that references this Agreement, or by accessing or using the Services, Customer agrees to this Agreement.

1. Definitions

“Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means ownership of more than 50% of the voting interests.

“Aggregated Data” means data derived from Customer Data that has been aggregated and de-identified such that it does not identify, and cannot reasonably be used to identify, Customer, Customer’s Affiliates, Customer’s customers, or any individual.

“Customer Data” means all data, content, and materials submitted by or on behalf of Customer to the Platform, or ingested by the Platform from systems Customer connects to it.

“Customer Personal Data” means Customer Data that constitutes personal data, personal information, or an analogous term under applicable Data Protection Laws.

“Data Protection Laws” means all privacy and data protection laws applicable to the processing of Customer Personal Data under this Agreement, including those of the European Union, the European Economic Area and its member states, Switzerland, the United Kingdom, and the United States.

“DPA” means the Monk Data Processing Agreement, which Monk will provide to Customer on request. The DPA applies where Monk processes Customer Personal Data on Customer’s behalf and, once provided to Customer, supplements this Agreement as set out in Section 7.5.

“Order Form” means an ordering document executed by both parties that references this Agreement and sets out the Services purchased, the Fees, and the Term.

“Pilot Period” means the evaluation period, if any, identified on an Order Form.

“Platform” means Monk’s hosted accounts receivable and revenue automation platform, including the modules identified on an Order Form.

“Services” means the Platform and any support, implementation, or professional services identified on an Order Form.

“Subscription Period” means the committed paid term identified on an Order Form, beginning at the end of the Pilot Period (if any).

“Term” means the period beginning on the Order Form Effective Date and continuing until the expiration or termination of all Order Forms.

“Users” means individuals authorized by Customer to access the Platform under Customer’s account.

2. Orders and Provision of the Services

2.1 Order Forms. Each Order Form is a separate agreement that incorporates this Agreement. Customer’s Affiliates may purchase under this Agreement by executing their own Order Form, in which case that Affiliate is the “Customer” for that Order Form.

2.2 Access. Subject to this Agreement, Monk grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access and use the Services for Customer’s internal business purposes, in accordance with the scope set out on the Order Form.

2.3 Provision. Monk will provide the Services, and will provide support, at the level identified on the Order Form.

2.4 Changes. Monk may modify the Platform from time to time, provided that no modification will materially reduce the core functionality of the Services purchased under an active Order Form.

2.5 Early access features. Monk may make pre-release, beta, or early access features available. Those features are provided “as is,” are excluded from any service commitment or warranty, and may be modified or discontinued at any time.

3. Customer Responsibilities and Restrictions

3.1 Responsibilities. Customer is responsible for (a) the accuracy and legality of Customer Data, (b) its Users’ acts and omissions, which are deemed Customer’s own, (c) maintaining the security of account credentials, and (d) obtaining and maintaining any third-party systems, accounts, and consents necessary for the Services to operate.

3.2 Restrictions. Customer will not, and will not permit any third party to: (a) copy, modify, or create derivative works of the Platform; (b) license, resell, sublicense, or otherwise make the Platform available to any third party except as expressly permitted; (c) reverse engineer, decompile, or attempt to derive the source code, structure, or algorithms of the Platform, except to the extent this restriction is unenforceable under applicable law; (d) access or use the Services to build a competing product or service; (e) submit to the Platform any data that infringes third-party rights, violates applicable law, or contains malicious code; or (f) knowingly submit to the Platform any special categories of personal data (as defined under applicable Data Protection Laws) or protected health information. The Services are not intended for the processing of such data. For clarity, invoice, billing, remittance, and bank account or payment method details provided in connection with the Services are not restricted by this Section, and incidental inclusion of other information by a Recipient in a communication is not a breach of this Section.

3.3 Suspension. Monk may suspend Customer’s access to the Services on notice if Customer’s use (a) poses a material security risk, (b) may subject Monk to liability, or (c) is in breach of Section 3.2. Monk will limit any suspension in scope and duration to what is reasonably necessary and will restore access promptly once the cause is resolved. Suspension does not relieve Customer of its payment obligations.

4. Fees, Invoicing, and Payment

4.1 Fees. Customer will pay the fees set out on the Order Form (the “Fees”). Fees are stated in U.S. dollars and are exclusive of taxes.

4.2 Term commitment. Customer’s purchase under an Order Form is a commitment to the full Subscription Period. Fees for the entire Subscription Period are fixed and become due and owing as of the first day of the Subscription Period, and are not contingent on Customer’s continued use of, or continued access to, the Services.

Any monthly, quarterly, or other periodic invoicing schedule stated on an Order Form is a payment convenience only. It does not create a month-to-month, at-will, period-by-period, or pay-as-you-go arrangement; it does not mean that Fees accrue period by period or only as invoiced; and it does not reduce, prorate, defer, or extinguish Customer’s obligation to pay the full Fees for the Subscription Period.

The Fees were negotiated and priced on the basis of Customer’s commitment to the full Subscription Period, including in reliance on the implementation, integration, and configuration work Monk performs at the outset of the relationship at little or no separate charge. Any waiver, discount, or crediting of an implementation fee or other fee does not reduce or limit Customer’s obligation under this Section.

4.3 Invoicing. Unless the Order Form provides otherwise, Monk will invoice Fees in advance on the schedule stated on the Order Form. Invoices are payable within thirty (30) days of the invoice date.

4.4 Fees on early termination. If an Order Form terminates, expires early, or is purported by Customer to be terminated or cancelled before the end of its Subscription Period, for any reason other than (a) Customer’s timely termination during the Pilot Period under Section 5.3 or (b) Customer’s termination for Monk’s uncured material breach under Section 5.5, then all Fees for the entire Subscription Period that remain unpaid become immediately due and payable as of the effective date of that termination, and Monk may invoice them in a single invoice.

This Section applies however the termination arises, including: termination or attempted termination by Customer for convenience; any notice of cancellation, non-renewal, or intent to stop service given by Customer; Customer ceasing to use the Services; Monk’s termination for Customer’s material breach or non-payment; and suspension under Section 3.3.

For the avoidance of doubt and for all purposes under this Agreement, the amounts described in this Section 4.4 are “Fees owed,” are “owed as of” the effective date of termination, and are payable notwithstanding that Monk has not yet issued an invoice for them. The parties agree that these amounts are Fees that Customer has already committed to pay under Section 4.2, and are not a penalty, a termination fee, or liquidated damages.

4.5 Non-refundable and non-cancelable. Except as expressly provided in Section 5.3, Section 5.5, or Section 11.3, all Fees are non-refundable and all payment obligations are non-cancelable. “Non-cancelable” refers to Customer’s commitment to the Fees for the entire Subscription Period and is not limited to invoices Monk has already issued.

4.6 Disputes. Customer must notify Monk in writing of any good-faith dispute regarding an invoice within fifteen (15) days of the invoice date, describing the basis of the dispute in reasonable detail. Undisputed amounts remain payable when due. The parties will work in good faith to resolve disputed amounts promptly.

4.7 Late payment. If any undisputed amount remains unpaid more than fifteen (15) days after written notice, Monk may suspend the Services under Section 3.3.

4.8 Taxes. Fees exclude all sales, use, VAT, GST, withholding, and similar taxes. Customer is responsible for all such taxes other than taxes on Monk’s net income. If Customer is required to withhold any amount, Customer will gross up the payment so Monk receives the full invoiced amount.

4.9 Scope and volume. The Fees are based on the scope, modules, and transaction or invoice volumes stated on the Order Form. If Customer’s actual usage materially and consistently exceeds that stated scope, the parties will negotiate revised Fees in good faith. Absent agreement, Monk may adjust the Fees proportionally on thirty (30) days’ written notice, effective no earlier than the start of the next billing period.

4.10 Survival of payment obligations. Customer’s obligation to pay Fees, including Fees that become due under Section 4.4, survives the expiration or termination of this Agreement or any Order Form for any reason, and is not reduced or discharged by the termination of Customer’s access to the Services, by Customer ceasing to use the Services, or by any notice given by Customer.

5. Term and Termination

5.1 Agreement term. This Agreement begins on the Order Form Effective Date of the first Order Form and continues until all Order Forms have expired or terminated.

5.2 Order Form term. Each Order Form begins on its Order Form Effective Date and continues for the Term stated on it, consisting of the Pilot Period (if any) followed by the Subscription Period.

5.3 Pilot Period exit. If an Order Form includes a Pilot Period, Customer may terminate that Order Form for any reason by written notice to Monk delivered no later than ten (10) days before the end of the Pilot Period. If Customer does so, the Subscription Period will not commence, no further Fees will accrue, and Monk will refund a prorated portion of the Pilot Period Fees paid, corresponding to the remainder of the Pilot Period following the effective date of termination, within thirty (30) days, in each case as and to the extent stated on the Order Form. Monk will notify Customer of the exit deadline at least twenty (20) days before it falls. If Customer does not deliver notice by the deadline, the Subscription Period commences automatically and is non-cancelable.

5.4 No termination for convenience. Except as expressly set out in Section 5.3, neither party may terminate an Order Form for convenience, and the Subscription Period is non-cancelable. No notice of cancellation, non-renewal, or termination given by Customer other than under Section 5.3 or Section 5.5 will reduce Customer’s obligation to pay the full Fees for the Subscription Period. Any such notice is ineffective to terminate Customer’s payment obligations, and Section 4.4 applies.

5.5 Termination for cause. Either party may terminate this Agreement or any Order Form if the other party (a) materially breaches and fails to cure within fifteen (15) days after written notice describing the breach, or (b) becomes insolvent, makes a general assignment for the benefit of creditors, or has a receiver or bankruptcy proceeding instituted against it that is not dismissed within sixty (60) days. If Customer terminates under this Section 5.5, Monk will refund any prepaid, unused Fees for the terminated portion of the Subscription Period.

5.6 Effect of termination. On expiration or termination of an Order Form: (a) Customer’s right to access the Services under that Order Form ends immediately; (b) Customer will pay all Fees owed as of the effective date of termination and all Fees that become owed under Section 4.4; (c) each party will, within thirty (30) days of the other party’s written request, return or destroy the other party’s Confidential Information in its possession or control, except for copies retained in routine backups or as required by law, which remain subject to Section 6; and (d) Customer Data will be returned or deleted in accordance with Section 7.8.

5.7 No automatic renewal. No Order Form renews automatically. Each Order Form expires at the end of its Subscription Period unless the parties execute a new Order Form. Expiration at the end of the Subscription Period does not affect, reduce, or discharge Fees owed for that Subscription Period.

5.8 Survival. Sections 1, 3.2, 4 (including Sections 4.4 and 4.10), 5.6, 5.8, 6, 7, 8, 9.3, 10, 11, and 13 survive expiration or termination.

6. Confidentiality

6.1 Definition. “Confidential Information” means information disclosed by or on behalf of a party (the “Disclosing Party”) to the other (the “Receiving Party”) that is designated as confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure, including trade secrets and non-public business, technical, and financial information. Customer Data is Customer’s Confidential Information. The Platform and non-public pricing are Monk’s Confidential Information.

6.2 Obligations. The Receiving Party will (a) protect Confidential Information with at least reasonable care, (b) use it only as necessary to exercise its rights and perform its obligations under this Agreement, and (c) disclose it only to its employees, Affiliates, advisors, and contractors who need to know it and who are bound by confidentiality obligations at least as protective as these.

6.3 Exclusions. Confidentiality obligations do not apply to information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party without restriction before disclosure, (c) is rightfully received from a third party without restriction, or (d) is independently developed without reference to the Disclosing Party’s Confidential Information.

6.4 Compelled disclosure. The Receiving Party may disclose Confidential Information to the extent required by law or legal process, provided it gives the Disclosing Party prompt notice where legally permitted and reasonable cooperation in seeking protective treatment.

6.5 Duration. Obligations under this Section continue for three (3) years after termination of this Agreement, and indefinitely with respect to trade secrets and Customer Data.

7. Customer Data, Privacy, and Security

7.1 Ownership. As between the parties, Customer owns and retains all right, title, and interest in and to Customer Data. No rights in Customer Data are granted to Monk other than the limited rights expressly stated in this Section 7.

7.2 License. Customer grants Monk a non-exclusive, royalty-free, worldwide license during the Term to host, copy, process, transmit, display, and otherwise use Customer Data solely to (a) provide, maintain, and support the Services to Customer and its Users, (b) communicate with Customer, its Users, and Recipients on Customer’s behalf and at Customer’s direction as described in Section 8, and (c) secure, monitor, and prevent abuse of the Platform.

7.3 No model training. Monk will not use Customer Data to train, fine-tune, or otherwise improve any artificial intelligence or machine learning model, other than models used solely to provide the Services to Customer. Monk’s model providers are engaged as subprocessors and are bound by written agreements imposing obligations substantially similar to those in this Section 7.

7.4 Aggregated Data. Monk may create Aggregated Data in the course of providing the Services and may use it to operate, secure, analyze, and improve the Services. Monk will not combine Customer Data with data obtained from or on behalf of sources other than Customer except for the purpose of creating Aggregated Data, and will not disclose Aggregated Data in any form that identifies Customer, Customer’s Affiliates, Customer’s customers, or any individual. Aggregated Data is not Customer Data and is not Customer Personal Data.

7.5 Data protection. Where Monk processes Customer Personal Data on Customer’s behalf, Monk acts as a processor (or service provider) and Customer acts as a controller (or business). Monk will process Customer Personal Data only in accordance with Customer’s documented instructions, which include this Agreement, any Order Form, and Customer’s use of the Services. Monk will ensure that personnel authorized to process Customer Personal Data are bound by confidentiality obligations, and will not sell or share Customer Personal Data, retain or use it outside the direct business relationship between the parties, or combine it with data from other sources except as permitted by Section 7.4.

Monk will notify Customer without undue delay after becoming aware of any breach of security leading to the accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of or access to Customer Personal Data.

Taking into account the nature of the processing and the information available to it, Monk will provide reasonable assistance to Customer in responding to data subject requests, regulatory inquiries, and data protection impact assessments. Monk may charge a reasonable fee for assistance under this paragraph; where Monk is at fault, each party bears its own costs.

7.6 Security. Monk will maintain an information security program aligned to the SOC 2 framework, including at a minimum: role-based access control on a least-privilege basis; multi-factor authentication for privileged and production access; encryption of Customer Data in transit using TLS 1.2 or higher and at rest using AES-256 or an equivalent industry-standard algorithm; segregation of production and non-production environments; security logging, monitoring, and alerting; secure development and vulnerability management practices; documented incident response procedures; regular backups and documented recovery procedures; confidentiality obligations and security training for personnel; and due diligence on subprocessors. Monk may update these measures provided the updates do not materially diminish the overall level of protection. A full description is available on request.

7.7 Subprocessors. Customer authorizes Monk to engage subprocessors to process Customer Data. Monk will provide its current subprocessor list to Customer on request. Monk will enter into a written agreement with each subprocessor imposing obligations substantially similar to those in this Section 7, and remains responsible for its subprocessors’ performance. Monk will give Customer at least thirty (30) days’ notice before engaging a new subprocessor, during which Customer may object on reasonable grounds that the engagement would result in a material violation of Data Protection Laws. The parties will work in good faith to resolve the objection; if they cannot, either party may discontinue the affected part of the Services.

7.8 Return and deletion. Within thirty (30) days after expiration or termination of an Order Form, Customer may request in writing that Monk return Customer Data, delete it, or both. Monk will complete the request within thirty (30) days of the election. Absent a timely election, Monk will delete Customer Data in accordance with its standard procedures. Monk may retain Customer Data to the extent required by applicable law, and copies persisting in routine backups or archival systems will be deleted on Monk’s standard retention cycle and in any event no later than thirteen (13) months after deletion from production systems, remaining subject to Sections 6 and 7 until deleted.

7.9 Data Processing Agreement. Monk maintains a Data Processing Agreement containing its full processor commitments, including standard contractual clauses for international transfers, a subprocessor list, a description of its technical and organizational measures, and audit rights. Monk will provide the DPA to Customer on request. On execution or written acceptance by both parties, the DPA supplements this Agreement, and in the event of conflict between the DPA and the remainder of this Agreement with respect to the processing of Customer Personal Data, the DPA prevails. The version of the DPA in effect on an Order Form’s Effective Date governs that Order Form for its Term and is not changed by any later update. Absent a DPA, this Section 7 governs Monk’s processing of Customer Personal Data.

8. Collections Communications

8.1 Nature of the Services. The Services include sending communications to Customer’s own customers and their personnel (“Recipients”) regarding invoices, payment reminders, disputes, and collections. Depending on the modules purchased, those communications may be sent by email, by messaging platform, or by automated voice call, and may be generated using automated and AI-assisted processing.

8.2 Customer authorization. Customer instructs and authorizes Monk to send communications to Recipients on Customer’s behalf, in Customer’s name, using Customer’s sending domains, telephone numbers, accounts, and branding where Customer configures the Services to do so. Customer may withdraw or limit that authorization at any time through the Platform or on written notice to Monk.

8.3 Customer responsibilities. As between the parties, Customer is the party with the underlying commercial relationship with each Recipient and is responsible for: (a) the accuracy, currency, and lawful sourcing of Recipient contact details supplied to or synced with the Platform; (b) having the right to contact each Recipient for the purposes of the Services; (c) the underlying validity of the amounts claimed and the substance of the communications Customer configures; and (d) determining that the Services, as configured by Customer, are appropriate for Customer’s business and its regulatory environment. Customer represents and warrants that its use of the Services in accordance with this Agreement will not violate applicable law.

8.4 Configuration and human review. Monk makes controls available in the Platform, including draft-versus-autosend modes, send limits, exclusion and suppression lists, stop-on-reply behavior, escalation rules, and approval steps. Selecting and maintaining the configuration appropriate to Customer’s business is Customer’s responsibility. Monk will advise on configuration on request and will notify Customer promptly if Monk becomes aware that the Services have sent a materially incorrect communication on Customer’s behalf.

8.5 Opt-outs and suppression. Customer will promptly record in the Platform, or notify Monk of, any Recipient request to cease or limit communications, any disputed invoice, and any Recipient that Customer requires be suppressed. Monk will give effect to suppression and opt-out instructions recorded in or notified to the Platform without undue delay, and will honor opt-out mechanisms included in communications sent through the Services.

8.6 Voice communications. Where Customer purchases the AI voice module, Customer acknowledges that calls may be recorded and that Recipients may be located in jurisdictions requiring the consent of all parties to a recording. Customer is responsible for determining the disclosure and consent requirements applicable to calls placed on its behalf and for configuring the disclosures made at the start of a call accordingly. Monk will make available, and will not disable, the call disclosure and recording-consent controls provided in the Platform. Monk will disclose, or make available for Customer to disclose, that the caller is an automated system where the Platform provides that function.

8.7 Third-party portals. Where Customer purchases AP portal automation, Customer authorizes Monk to access supplier and accounts payable portals, and to submit and retrieve invoices, remittance information, and supporting documentation, on Customer’s behalf and using credentials Customer provides or authorizes. Customer is responsible for ensuring that its use of those portals and Monk’s authorized access comply with Customer’s agreements with the relevant portal operators and Recipients. Monk will use the credentials only to perform the Services and will protect them in accordance with Section 7.6.

8.8 Agency limited to communications. Section 14.7 notwithstanding, Monk acts as Customer’s agent solely for the limited purpose of sending communications and accessing portals as described in this Section 8, and for no other purpose. Monk has no authority to settle, compromise, forgive, or write off any amount, to commence legal proceedings, to enter into any payment arrangement, or otherwise to bind Customer, except where Customer expressly configures the Services to do so.

8.9 Allocation. Customer will defend and indemnify Monk against third-party claims arising from clauses (a) through (d) of Section 8.3. Monk will defend and indemnify Customer against third-party claims arising from Monk’s failure to give effect to suppression or opt-out instructions recorded in or notified to the Platform in accordance with Section 8.5, or from Monk’s disabling of the controls described in Section 8.6. Each indemnity under this Section 8.9 is subject to the procedure in Section 11.5 and the limitations in Section 12.

9. Intellectual Property

9.1 Monk IP. Monk owns and retains all right, title, and interest in and to the Platform, the Services, and all software, models, algorithms, know-how, and technology underlying them, together with all enhancements, updates, configurations, and other improvements to any of the foregoing (“Improvements”), whether or not developed in the course of providing the Services to Customer. All rights not expressly granted are reserved.

9.2 Feedback. Customer may provide suggestions, ideas, or other feedback regarding the Services (“Feedback”). Customer grants Monk a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to use and incorporate Feedback into the Services. Feedback is provided voluntarily, and Customer is not obligated to provide it. This Section grants Monk no rights in Customer Data or in Customer’s other intellectual property.

9.3 No other license. Nothing in this Agreement grants Monk any license to Customer’s intellectual property other than as expressly stated in Sections 7.2 and 9.2.

10. Representations, Warranties, and Disclaimers

10.1 Mutual. Each party represents and warrants that it is validly existing and in good standing, has full power and authority to enter into and perform this Agreement, and that the individual executing an Order Form on its behalf is duly authorized.

10.2 Monk warranties. Monk further represents and warrants that (a) it has all requisite rights, licenses, and consents to grant the rights and licenses and perform its obligations in this Agreement, (b) Customer’s exercise of its rights and licenses under this Agreement will not infringe, misappropriate, or violate any third-party rights or violate any applicable laws, and (c) Monk will not introduce into the Platform any corrupted data, viruses, or other harmful code.

10.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. MONK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY PARTICULAR COLLECTIONS, CASH APPLICATION, OR FORECASTING OUTCOME WILL BE ACHIEVED. THE SERVICES USE AUTOMATED AND AI-ASSISTED PROCESSING; CUSTOMER IS RESPONSIBLE FOR CONFIGURING THE HUMAN REVIEW AND APPROVAL CONTROLS MADE AVAILABLE IN THE PLATFORM IN A MANNER APPROPRIATE TO ITS BUSINESS.

11. Indemnification

11.1 By Monk. Monk will defend Customer, its Affiliates, and their respective officers, directors, and employees against any third-party claim alleging that (a) the Platform, as provided by Monk and used in accordance with this Agreement, infringes or misappropriates that third party’s intellectual property rights, or (b) there has been unauthorized access to or disclosure of Customer Data resulting from Monk’s failure to use commercially reasonable technical and organizational measures to protect Customer Data. Monk will indemnify Customer against damages, liabilities, and costs finally awarded or agreed in settlement in connection with such a claim.

11.2 Exclusions. Monk has no obligation under Section 11.1 to the extent a claim arises from (a) Customer Data, (b) modifications to the Platform not made by Monk, (c) combination of the Platform with products or systems not provided by Monk where the claim would not have arisen but for the combination, or (d) use of the Platform in breach of this Agreement.

11.3 Remedies. If the Platform is, or Monk reasonably believes it may become, the subject of a claim under Section 11.1(a), Monk may at its option and expense (i) procure the right for Customer to continue using the Platform, (ii) modify or replace it so that it is non-infringing while materially preserving its functionality, or (iii) terminate the affected Order Form and refund prepaid, unused Fees. Sections 10.1(a), 10.2, and 10.3 state Monk’s entire liability and Customer’s exclusive remedy for third-party intellectual property claims.

11.4 By Customer. Customer will defend and indemnify Monk against any third-party claim arising from (a) Customer Data, including any allegation that it infringes third-party rights or was submitted in violation of applicable law, or (b) Customer’s breach of Section 3.2.

11.5 Procedure. The indemnified party will promptly notify the indemnifying party of the claim, give the indemnifying party sole control of the defense and settlement, and provide reasonable cooperation at the indemnifying party’s expense. The indemnifying party will not settle any claim in a manner that imposes liability or an admission of fault on the indemnified party without its prior written consent, not to be unreasonably withheld. The indemnified party may participate with counsel of its own choosing at its own expense.

12. Limitation of Liability

12.1 Exclusion of indirect damages. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOST DATA, OR BUSINESS OR REPUTATIONAL HARM, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2 General cap. EXCEPT AS SET OUT IN SECTION 12.3, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

12.3 Enhanced cap. NOTWITHSTANDING SECTION 12.2, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO (A) ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.9 OR SECTION 11, (B) ITS BREACH OF SECTION 6 (CONFIDENTIALITY), (C) ITS BREACH OF SECTION 7 OR ANY DPA ENTERED INTO BY THE PARTIES, OR (D) ITS OWN FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, WILL NOT EXCEED TWO (2) TIMES THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. NO LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT IS UNCAPPED.

12.4 Payment obligations are not liability. Sections 12.1 through 12.3 limit each party’s liability for damages. They do not apply to, limit, or cap Customer’s obligation to pay Fees due under this Agreement, including Fees that become due under Section 4.4, which is a debt owed for services contracted rather than a claim for damages. Nothing in this Section 12 relieves Customer of that obligation or reduces the amount payable.

12.5 Aggregate application. The caps in this Section 12 are aggregate across all claims, causes of action, and Order Forms, and, where a DPA has been entered into, apply to this Agreement and the DPA taken together. Multiple claims do not enlarge a cap.

12.6 Allocation and severability. The parties agree that these limitations reflect an agreed allocation of risk, are reflected in the Fees, form an essential basis of the bargain, and apply notwithstanding the failure of any limited remedy. If any limitation in this Section is held unenforceable as to a particular claim, it remains in full effect as to all other claims, and liability for that claim is limited to the maximum extent permitted by applicable law.

13. Publicity and References

13.1 Identification. Monk may identify Customer by name and logo as a customer of Monk on Monk’s website and in Monk’s investor and sales materials, subject to Customer’s trademark usage guidelines provided to Monk. Customer may revoke this right on thirty (30) days’ written notice.

13.2 Other use. Any case study, quotation, press release, or description of Customer’s use of the Services requires Customer’s prior written consent, which may be given by email and will not be unreasonably withheld.

13.3 References. Customer will, on reasonable request and no more than twice per calendar quarter, serve as a reference for prospective Monk customers or investors, subject to Customer’s availability and internal policies.

14. General

14.1 Order of precedence. In the event of conflict, the following order controls: (a) the DPA, where the parties have entered into one, with respect to the processing of Customer Personal Data; (b) the Order Form; (c) this Agreement. Terms in a Customer purchase order, vendor portal, or other Customer-issued document are of no force or effect and are expressly rejected, even if Monk signs or acknowledges that document, unless Monk expressly agrees to those terms in a writing that identifies this Section 14.1.

14.2 Negotiated agreements. If the parties have executed a separate written master agreement covering the Services, that agreement governs and supersedes this Agreement with respect to Order Forms that reference it.

14.3 Versioning. Monk may update this Agreement from time to time by publishing a revised version at https://monk.com/msa. The version in effect on an Order Form’s Effective Date governs that Order Form for its Subscription Period and is not changed by any later update. A revised version applies only to Order Forms executed after its effective date. Monk will retain prior versions and provide a copy of any version on request.

14.4 Amendment. Except as set out in Section 14.3, this Agreement may be amended only by a writing signed by both parties.

14.5 Notices. Notices must be in writing and are effective on delivery. Notices to Monk go to the Monk email address stated on the Order Form; notices to Customer go to the Contact email address stated on the Order Form (and not to any billing or accounts payable address stated there). Email satisfies any requirement that a notice be in writing.

14.6 Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except that either party may assign it in its entirety to a successor in connection with a merger, acquisition, or sale of all or substantially all of its assets, on notice to the other party. Any other attempted assignment is void.

14.7 Independent contractors. The parties are independent contractors. Neither has authority to bind the other, except for the limited agency described in Section 8.8.

14.8 Force majeure. Neither party is liable for any delay or failure to perform caused by events beyond its reasonable control. This Section does not excuse any obligation to pay amounts due.

14.9 Governing law and venue. This Agreement is governed by the laws of the State of New York, without reference to conflict of laws principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in Manhattan, New York.

14.10 Severability; waiver. If any provision is held unenforceable, it will be modified to the minimum extent necessary to make it enforceable and the remainder will continue in effect. No waiver is effective unless in writing, and no failure to enforce is a waiver.

14.11 Entire agreement. This Agreement, together with all Order Forms and any DPA entered into by the parties, is the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements, proposals, and understandings, written or oral.

14.12 Counterparts; electronic signature. Order Forms may be executed in counterparts and by electronic signature, each of which is an original.