Last updated on January 10, 2022
THESE TERMS OF SERVICE (THESE "TERMS") GOVERN SUBSCRIPTION TO AND USE OF NOVES'S SERVICES. BY ACCESSING OR USING NOVES'S WEBSITES AND SERVICES, YOU ACCEPT OR AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO OR ACCEPTING THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE, THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE NOVES'S SERVICES.
These Terms of Service (these "Terms") are made by and between the party on whose behalf they are accepted ("Customer") and Noves and are effective as of the date they are accepted by Customer. "Noves" means Noves, Inc., a Delaware corporation, with offices at 2300 West Sahara Avenue Suite 800, Las Vegas, NV 89102. The complete subscription agreement including these Terms (the "Agreement") is made for the purpose of granting Customer a limited subscription to use Noves's blockchain data API, support or other services (the "Services").
2.1 Services. Noves will make the Services available to Customer according to one or more online or written ordering documents (each a "Service Order"). The Agreement includes each Service Order incorporating the Agreement.
2.2 Compliance with Laws. Noves will comply with all laws and governmental regulations applicable to the Services.
2.3 Personnel and Performance. Noves will be responsible for the performance of its personnel (including employees and contractors) and their compliance with the Agreement. Noves enters into the Agreement on behalf of itself and its Affiliates. An "Affiliate" of a party is any entity (a) that the party Controls; (b) that the party is Controlled by; or (c) with which the party is under common Control, where "Control" means direct or indirect control of fifty percent (50%) or more of an entity's voting interests (including by ownership).
2.4 Security Measures. Noves will maintain administrative, physical, and technical safeguards for the security and integrity of the Services (the "Security Measures") consistent with industry standard practices. Noves will store, process, transmit and disclose electronic data and configurations submitted to the Services at the direction of or on behalf of Customer ("Customer Data") only according to the Agreement and the Documentation. The Services, independent of Customer Data, will not transmit code, files, scripts, agents, or programs intended to do harm, including, viruses, worms, time bombs, and Trojan horses ("Malicious Code").
3.1 Customer Data. As between Noves and Customer, Customer is responsible for Customer Data and the provision of Customer Data to the Services according to the Agreement.
3.2 Personnel and Performance. Customer will be responsible for the performance of its personnel (including employees and contractors) in compliance with the Agreement. Customer enters into the Agreement on behalf of its Affiliates that make use of the Services.
3.3 Non-Noves Services. Customer may choose to use services not provided by Noves ("Non-Noves Services") with the Services and in doing so grants Noves permission to interoperate with the Non-Noves Services as directed by Customer or the Non-Noves Services. Unless specified in a Service Order: (a) Noves does not warrant or support Non-Noves Services, (b) as between Noves and Customer, Customer assumes all responsibility for the Non-Noves Services and any disclosure, modification or deletion of Customer Data by the Non-Noves Services and (c) Noves shall have no liability for, and Customer is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to any unavailability of the Non-Noves Services or any change in the ability of Noves to interoperate with the Non-Noves Services.
3.4 Third Party Reports. As an intermediary, Noves may receive notices from third parties ("Reporters") regarding Customer Data or Customer's use of the Services ("Reports"). Noves will forward all Reports directly to an email address provided by Customer designated to receive Reports (the "Abuse Contact"). Upon receipt of a Report, Customer will (i) acknowledge receipt of such report to Noves within two (2) business days of receipt and (ii) address the Report promptly with the Reporter, including informing the Reporter that Customer (and not Noves) is the appropriate party to address the matter. Noves may provide the Abuse Contact to a Reporter inquiring about Customer Data or Customer's use of the Services.
3.5 Responsibilities. Customer (a) shall use the Services in accordance with the applicable Documentation; (b) shall be responsible for using commercially reasonable efforts to prevent unauthorized access to or use of the Services; (c) shall promptly notify Noves of any unauthorized access or use of the Services; (d) shall respond to Reports in accordance with Section 3.4 (Third Party Reports) and take reasonably appropriate action to resolve the reported matter; (e) shall not use the Services to store, transmit or display Customer Data for fraudulent purposes or in violation of applicable laws and governmental regulations; (f) shall not make the Services available to, or use the Services for the benefit of, anyone other than Customer's own personnel or end users; (g) shall not use the Services to store, transmit or display Malicious Code; (h) shall not interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein; (i) shall not attempt to gain unauthorized access to any of Noves's datacenters, systems or networks; (j) shall not permit direct or indirect access to or use the Services in a way that circumvents a usage or capacity limit of the Services or use the Services to access or use any of Noves's intellectual property except as permitted under the Agreement; (k) shall not sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Services except as integrated with its own offerings that provide additional functionality to its end users; (l) subject to Section 8.2 (Noves Software), shall not copy, modify or create a derivative work of the Services or any part, feature, function, or user interface thereof; (m) shall not access the Services or use the Documentation to develop a competitive product or service; (n) subject to Section 8.2 (Noves Software), except as permitted by applicable laws or governmental regulations, shall not reverse engineer, decompile, translate, disassemble or otherwise attempt to extract any or all of the source code of the Services; (o) shall not alter, remove or obscure any copyright, trademark or other proprietary notices or confidentiality legend on the Services; (p) shall obtain and maintain appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems and internet access; (q) obtain and maintain any required consents necessary to permit the processing of Customer Data by Noves under the Agreement; and (r) obtain and maintain any consents necessary to permit the processing by Noves of the personal information of Customer's personnel that serve as Customer's designated contact for purposes of the Services and the Agreement. (s) shall not multiplex usage across different accounts on the services.
3.6 Service Notices. If Noves becomes aware that Customer may violate Customer's obligations under this Section 3 (Customer's Obligations), Noves will notify the Abuse Contact by email (the "Service Notice") and request Customer to take reasonably appropriate action, including ceasing problematic usage, changing a configuration, updating account credentials or removing applicable Customer Data. If Customer fails to comply with a Service Notice within the time period set forth in the Service Notice, Noves may block Customer's access to the Services until the requested action is taken. If Customer fails to take the required action within ten (10) days or fails to comply with Customer's obligations under this Section 3 (Customer's Obligations) on two or more occasions during any rolling twelve (12) month period, Noves may terminate the Agreement immediately for cause. Noves also responds to notices of alleged copyright infringement and may block access to the applicable Service or terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act of 1998. All limitations of access, suspensions, and terminations for cause shall be made in Noves's sole discretion and Noves shall not be liable to Customer or any third party for any termination of Customer's account or access to the Services.
4.1 Term. These Terms are effective during the term of any Service Order that incorporates the Agreement. The term of a Service Order shall be specified in the Service Order. Service Orders shall renew for successive terms, unless either party gives the other at least ninety (30) days' notice of change of pricing terms or nonrenewal at the end of the applicable term.
4.2 Termination for Cause. In addition to Noves's right to terminate the entire Agreement under Section 3.6 (Service Notices), Customer or Noves may terminate the entire Agreement for cause (a) upon 30 days' written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period or (b) if the other party (i) becomes the subject of a proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors to the extent permitted by applicable laws or governmental regulations, (ii) goes out of business or (iii) ceases its operations.
4.3 Termination for Convenience. Noves may terminate this Agreement without cause by providing at least four (4) weeks' prior written notice to Customer.
4.4 Survival. Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including Sections 3.5(j), (k), (n), (o) and (p) (Customer's Obligations), Section 6.1 (Fees), Section 6.5 (Refund or Payment upon Termination), Section 7 (Confidentiality), Section 8 (Licenses and Proprietary Rights), Section 12 (Limitation of Liability), Section 13 (Exclusion of Consequential and Related Damages) and Section 15 (Indemnification).
From time to time, Noves may offer services identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import ("Beta Services"). Customer may accept or decline Beta Services. If accepted by Customer, Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by Customer for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available or is discontinued. Noves may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. NOVES DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.
6.1 Fees. Customer will pay all fees specified in Service Orders and provide accurate and updated billing contact information. Except as set forth in a Service Order, all fees payable under the Agreement shall be made in U.S. Dollars. Customer's payments of fees are neither (x) contingent on the delivery of any future functionality or features nor (y) dependent on statements not set forth in the Agreement or any Service Order.
6.2 Invoicing Terms. If the Service Order specifies that payment will occur by a method other than a credit card, Customer will provide a purchase order number in the applicable amount (or reasonable alternative proof of Customer's ability to pay the fees specified in a Service Order), and promptly notify Noves of any changes necessary for payment of an invoice. Noves will invoice Customer either monthly or according to the billing frequency stated in the Service Order. Invoices to be paid by credit card are due on the invoice date, all other invoices are due net 15 days from the invoice date. If any invoiced amount is not received by Noves by the due date, then without limiting Noves's rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) Noves may condition future subscription renewals and Service Orders on shorter payment terms. If Customer is paying for Services by credit card, Customer will provide Noves's authorized payment processor with valid credit card information and promptly notify Noves's authorized payment processor of any changes necessary to charge the credit card. The provision of credit card information to Noves's authorized payment processor authorizes Noves, through its authorized payment processor, to charge the credit card for all Services specified in a Service Order, and any renewal subscription. Customer acknowledges that Noves will not have access to Customer's credit card information.
6.3 Suspension of Service and Acceleration. If any amount owing by Customer is 15 or more days overdue, Noves may, without limiting any rights and remedies, accelerate Customer's unpaid fee obligations to become immediately due and payable, and block the provision of Services to Customer until the overdue amounts are paid in full. Noves will give Customer at least 7 days' prior notice that its account is overdue, in accordance with Section 17 (Manner of Giving Notice), before blocking Services to Customer.
6.4 Payment Disputes. Noves will not exercise any rights to block Services, accelerate payments, impose late charges or change payment terms under Section 6.2 (Invoicing Terms) and Section 6.3 (Suspension of Service and Acceleration) with respect to an overdue amount for so long as Customer is disputing the overdue amount in good faith. The parties shall cooperate diligently to resolve the dispute.
6.5 Refund or Payment upon Termination. If Customer terminates the Agreement in accordance with Section 4.2 (Termination for Cause), Noves will refund any prepaid fees covering the remainder of the term of all Service Orders after the effective date of termination. If the Agreement is terminated by Noves in accordance with Section 4.2 (Termination for Cause), Customer will pay any unpaid fees covering the remainder of the term of all Service Orders. In no event will termination relieve Customer of its obligation to pay any fees payable for the period prior to the effective date of termination. If Customer terminates without cause prior to the end of the then current term, Customer shall be immediately liable for the balance of the fees for the remainder of the term.
6.6 Taxes. Fees for Services do not include 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 whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its Service Orders. If Noves is obligated by law to pay or collect Taxes for which Customer is responsible, Noves will invoice Customer and Customer will pay that amount unless Customer can provide a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will provide Noves any information Noves reasonably requests to determine whether Noves is obligated to collect Taxes. Noves is solely responsible for taxes assessable against its income, property, and employees.
7.1 Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be confidential. Customer's Confidential Information includes the Customer Data; Noves's Confidential Information includes the Services; and Confidential Information of each party includes but is not limited to the terms and conditions of the Agreement and all Service Orders, including pricing, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by each party in connection with the Agreement. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Receiving Party; (b) was known to the Receiving Party with no obligation of confidentiality prior to disclosure by Disclosing Party, as proven by records of Receiving Party; (c) is disclosed to Receiving Party by a third party who did not directly or indirectly obtain the information subject to any confidentiality obligation; or (d) is at any time independently developed by Receiving Party without use of Disclosing Party's Confidential Information as proven by records of Receiving Party.
7.2 Protection of Confidential Information. Except as provided in Section 7.3 (Compelled Disclosure) Receiving Party shall not disclose or otherwise make available any Confidential Information of Disclosing Party to anyone except those of its employees, directors, attorneys, agents and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each party shall (x) safeguard all Confidential Information of the other party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information and (y) not use any Confidential Information of the other party for any purpose outside the scope of the Agreement.
7.3 Compelled Disclosure. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, then to the extent legally permitted, Receiving Party shall provide Disclosing Party with prior notice of the compelled disclosure and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the compelled disclosure. Any compelled disclosure shall be limited to the extent required, and shall be subject to confidentiality protections to the extent practicable. If Receiving Party is compelled by law to disclose Disclosing Party's Confidential Information as part of a civil proceeding to which Disclosing Party is a party, and Disclosing Party is not contesting the disclosure, Disclosing Party will reimburse Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8.1 Customer Data. Customer grants Noves a worldwide, nonexclusive, revocable, and limited license to store, copy, transmit, and display Customer Data and to interoperate with any Non-Noves Services as necessary in order for Noves to provide the Services in accordance with the Agreement. Subject to this limited license, Noves acquires no right, title, or interest from Customer under the Agreement in or to Customer Data.
8.2 Noves Software. Except solely with respect to open source software Noves makes available ("Open Source Software"), including language specific codes that enable easy communication with Noves Software (the "API Clients"), Noves grants Customer a limited non-exclusive, non-transferable, non-sublicensable license to use Noves Software solely in connection with the subscribed Services in accordance with the Agreement. Open Source Software, including API Clients, and Customer's use of such Open Source Software is subject to and governed by the applicable license accompanying, linked to or embedded in such Open Source Software (each an "Open Source License") and Noves grants Customer a license to use the Open Source Software to the full extent permitted by the applicable Open Source License.
8.3 Feedback. Customer grants to Noves worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer.
8.4 Support Related Deliverables. Noves hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Noves for Customer and delivered by Noves to Customer in connection with support services ("Deliverables"). Subject to Customer's ownership of its proprietary and Confidential Information disclosed to Noves under Section 7 (Confidentiality), Noves shall retain all ownership rights to the Deliverables. Deliverables that are custom code written by Noves to facilitate Customer's use of the Services that include any Customer Confidential Information shall remain subject to the confidentiality obligations under Section 7 (Confidentiality) and Customer shall retain all ownership rights to its Confidential Information. ALL SUCH CUSTOM CODE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND. NOVES DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH CUSTOM CODE.
8.5 Proprietary Rights. The Services, Noves Software and the Documentation are the proprietary information of Noves. Subject to the limited rights expressly granted in the Agreement, Noves and Noves's licensors reserve all right, title, and interest in and to the Services, Noves Software and the Documentation, including all related intellectual property rights. No rights are granted to Customer except as expressly set forth in the Agreement. No rights are granted to Noves except as expressly set forth in the Agreement.
The Services may include access to Noves Software. In such case, such Noves Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is an agency of, or contractor to, the US Government, it receives only those rights with respect to such software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. If Customer is a government agency that has a need for rights not granted under the Agreement, it must negotiate with Noves to determine if there are acceptable terms for granting those rights, and mutually acceptable written terms specifically granting those rights must be included in any applicable agreement.
The Services, Noves Software and the Documentation may be subject to export laws and regulations of the United States and other jurisdictions, and any use or transfer of the Services, Noves Software and Documentation must be permitted under these laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not enable use of the Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Crimea - Region of Ukraine, or Syria) or in violation of any U.S. export law or regulation.
Customer has not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any Noves personnel or agents in connection with the Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. If Customer becomes aware of any violation of the above restriction, Customer will promptly notify Noves at legal@noves.fi.
IN NO EVENT WILL A PARTY'S AGGREGATE LIABILITY (TOGETHER WITH ALL OF ITS AFFILIATES) ARISING OUT OF OR RELATED TO THE AGREEMENT (REGARDLESS OF THE NUMBER OF INDIVIDUAL INCIDENTS GIVING RISE TO LIABILITY) EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SUBSCRIBER AND ITS AFFILATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT SUBSCRIBER'S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT) OR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 15 (INDEMNIFICATION).
IN NO EVENT WILL A PARTY HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS, LOST OPPORTUNITIES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES OR A PARTY'S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
14.1 Customer assumes sole responsibility and liability for results obtained from the use of the Developed Software or Noves Data and for conclusions drawn from such use. Noves shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Customer in connection with the Developed Software or any actions taken by Customer.
14.2THE DEVELOPED SOFTWARE AND NOVES DATA ARE PROVIDED "AS IS" AND NOVES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE DEVELOPED SOFTWARE OR THE DEVELOPER DATA. WITHOUT LIMITING THE FOREGOING, NOVES DISCLAIMS ANY WARRANTY THAT USE OF THE DEVELOPED SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED; THAT THE DEVELOPED SOFTWARE OR NOVES DATA WILL BE FREE FROM BUGS, VIRUSES, OTHER MALICIOUS CODE, ERRORS OR PROGRAM LIMITATIONS; OR THAT ALL ERRORS WILL BE CORRECTED. NOVES FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE DEVELOPED SOFTWARE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOVES FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NOVES OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
15.1 Indemnification by Noves. Noves will indemnify and defend Customer against any and all third party claims, demands, suits or proceedings (each a "Claim Against Customer") and all related judgments, liabilities, awards, damages, costs, including reasonable attorneys' fees and expenses, arising out of or in connection with, or alleging the Services (exclusive of Open Source Software) or use of the Services (exclusive of Open Source Software) by Customer in accordance with the Agreement infringe or misappropriate the third party's intellectual property rights, provided Customer (a) promptly gives Noves written notice of the Claim Against Customer; (b) gives Noves sole control of the defense and settlement of the Claim Against Customer (except that Noves may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability related to the Claim Against Customer); and (c) gives Noves all reasonable assistance in connection with the defense or settlement of such Claim Against Customer, at Noves's expense. If Noves receives information about an infringement or misappropriation claim related to the Services, Noves may in its discretion and at no cost to Customer (x) modify the Service so that it no longer infringes or misappropriates, without breaching Noves's obligations under Section 2 (Noves's Obligations); (y) obtain a license for Customer's continued use of that Service in accordance with the Agreement; or (z) terminate Customer's subscription for the affected portion of the Service upon 30 days' written notice and refund Customer any prepaid fees covering the remainder of the term for the terminated portion of the Services. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from (i) Customer Data, (ii) Customer's use of Beta Services, (iii) a Non-Noves Service, (iv) Customer's breach of the Agreement, (v) any modification or alternation to the Services not made by Noves, (vi) any combination or use of the Services with products or services not expressly approved by Noves or (vii) Customer's continued use of the allegedly infringing portion of the Services after receiving notice from Noves regarding the same.
15.2 Indemnification by Customer. Customer will indemnify and defend Noves against any and all third party claims, demands, suits or proceedings (each a "Claim Against Noves") and all related judgments, liabilities, awards, damages, costs, including reasonable attorneys' fees and expenses, arising out of or in connection with, (i) Customer Data, or (ii) Customer's use of the Services in breach of the Agreement, provided Noves (a) promptly gives Customer written notice of the Claim Against Noves; (b) gives Customer sole control of the defense and settlement of the Claim Against Noves (except that Customer may not settle any Claim Against Noves unless it unconditionally releases Noves of all liability related to the Claim Against Noves); and (c) give Customer all reasonable assistance in connection with the defense or settlement of such Claim Against Noves, at Customer's expense. The above defense and indemnification obligations do not apply to the extent a Claim Against Noves arises from the Services or Noves's breach of the Agreement. Except with respect to a dispute between Customer and Noves, Customer will reimburse Noves for all costs and reasonable attorneys' fees for responding to third party or governmental requests for information arising out of or in connection with Customer Data or Customer's use of the Services.
15.3 Additional Indemnities. For purposes of this Section 15, (a) a Claim Against Noves shall include a claim against Noves, Noves's Affiliates, and Noves's or its Affiliates' officers, directors, and employees and (b) a Claim Against Customer shall include a claim against Customer, Customer's Affiliates, and Customer's or its Affiliates' officers, directors, and employees.
15.4 Exclusive Remedy. This Section 15 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section 15.
16.1 Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld) provided, however, either party may assign the Agreement in its entirety, without the other party's consent (a) to its Affiliate or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the immediately preceding sentence, if a party is acquired by, sells all or substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may, but is not required to, terminate the Agreement upon written notice. In the event of such a termination by Noves, Noves will refund to Customer any prepaid but unused fees covering the remainder of the term of all Service Orders after the effective date of such termination.
The Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
16.2 The Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
17.1 Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; or (c) the day of sending by email (except that email shall not be sufficient for notices of an indemnifiable claim ("Legal Notice")). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other Services related notices to Customer shall be addressed to the relevant Services system administrator or other person designated by Customer in writing or in the Services' user interface dashboard. Legal Notices to Noves should be addressed to legal@noves.fi or Noves, Inc. 2300 West Sahara Avenue Suite 800, Las Vegas, NV 89102.
The Agreement shall be governed by and construed in accordance with the controlling laws of the United States of America and the State of Nevada, excluding rules governing conflict of law and choice of law. The Federal and state courts within Las Vegas Nevada shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement if United States and the State of Nevada laws apply. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts and service of process being effected upon it by registered mail sent to the Legal Notice address provided by such party under the Agreement. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to the Agreement nor to any dispute or transaction arising out of the Agreement.
Customer consents to Noves's use of Customer's name and logo and general description of Customer's relationship with Noves in press releases and other marketing materials and appearances.
Except for payment obligations under the Agreement, neither party will be liable for failure to perform or inadequate performance to the extent caused by a condition that was beyond the party's reasonable control, including, for example, an act of God, natural disaster, act of war or terrorism, riot or civil arrest, labor conditions, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services.
The parties agree that a material breach of the Agreement adversely affecting Noves intellectual property rights in Noves Software may cause irreparable injury to Noves and/or its licensors for which monetary damages would not be an adequate remedy and Noves shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
There are no third-party beneficiaries under the Agreement or the Documentation.
The Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following, the order of precedence shall be: (i) the applicable Service Order, (ii) the Agreement (iii) the Documentation. Noves and Customer each represent that it has validly entered into or accepted the Agreement and has the legal power to do so. Noves may modify these Terms from time to time. Any and all changes to these Terms will be posted at Noves’s website and the Terms will indicate the date they were last updated and their effective date. The changes will become effective thirty (30) days after posting and Customer may terminate the Agreement without penalty upon notice to Noves within seven (7) days of the effective date of the revised Terms. Customer is deemed to accept and agree to be bound by any changes to the Agreement when Customer uses the Service after the effective date of those changes. Notwithstanding the foregoing, in the event that the parties enter into, or have entered into a separate formal written subscript agreement, the terms of that agreement shall control over the terms of the Agreement unless the parties expressly agree to supersede such agreement with this Agreement. Any term or condition stated in a Customer purchase order or other Customer order documents (excluding Service Orders) is void. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the Agreement will remain in effect. All reference in the Agreement to "including" means "including but not limited to".
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