CUSTOMER TERMS AND CONDITIONS
Last Updated July 28, 2023
Welcome to Novata!
Novata provides an on-line platform (our “Platform”) seeking to promote and advance sustainable and inclusive capitalism through collection and dissemination of information regarding corporate attainment of Environmental, Social and Governance (“ESG”) goals and provision of related services, available through our website at www.novata.com and its subdomains (together with any mobile application that we may make available from time to time, “Website”) or other related services made available by Novata through our Website, or other means, from time to time.
These Terms and Conditions are a binding agreement between you and the entity you represent (“You” or “Your”) and Novata, Inc. (“Novata,” “we,” “us” and “our”) pursuant to which You may access and use our Services. These Terms and Conditions apply to the Platform, Website and all services made available through the Platform and our Website or otherwise provided by Novata in connection therewith (collectively, including the Platform and Website, “Services”).
There are two key types of users of our Services with different rights and obligations under these Terms and Conditions:
You may access or use our Services as a Data Provider, Data Requestor or both, or as a User (as defined below) of a Data Provider or Data Requestor. These Terms and Conditions address all those potential variations of Your purposes for use of our Services. By agreeing to these Terms and conditions, You are agreeing to terms applicable to Your role as a Data Provider and/or Data Requestor. Where these Terms and Conditions do not clearly identify terms that apply specifically to Data Providers or Data Requestors, such terms shall apply regardless of whether You are a Data Provider and/or Data Requestor.
While these Terms and Conditions are intended to provide You with visibility into how all our customers interact with the Platform and each other, in some cases third party Data Providers and Data Requestors have a different written agreement with Novata which takes precedence between such third party and Novata. Also, if You have a written agreement with a Data Provider or Data Requestor, that separate agreement shall take precedence as between You and such third party, but these Terms and Conditions shall continue to apply as between You and Novata.
These Terms and Conditions may be agreed by You through a click through process on the Website, through a signed order (“Order”) or quotation (“Quotation”) in which these Terms and Conditions are attached or referenced or through any other form of mutual agreement between You and Novata.
BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON OR OTHERWISE ACCESS THE WEBSITE, PLATFORM OR USE OR REFER THE SERVICES, CAREFULLY READ THESE TERMS AND CONDITIONS. BY CLICKING ON THE “I ACCEPT” BUTTON, ACCESSING THE PLATFORM OR USING THE SERVICES, OR AGREEING TO AN ORDER OR QUOTE IN WHICH THESE TERMS AND CONDITIONS ARE ATTACHED OR REFERENCED, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE TERMS AND CONDITIONS, THEN DO NOT CLICK “I ACCEPT” AND DO NOT ACCESS OR USE OUR WEBSITE, PLATFORM OR SERVICES.
If You wish to use the Services on behalf of a company, organization or other entity, then You represent and warrant that You: (a) have the legal authority to bind such entity to these Terms and (b) agree to be bound by these Terms on behalf of such entity.
1. YOUR USE AND ACCESS TO OUR SERVICES.
1.1 Data Provider Access and Use. Subject to these Terms and Conditions, Novata hereby grants Data Provider, during the relevant subscription period for the Services agreed in connection with Data Provider’s registration on the Website or in the applicable Order or Quotation (“Subscription Term”), a limited, revocable, non-exclusive, non-transferable right for Data Provider to access and use the Services, solely for Data Provider to:
(a) upload or provide Data Provider’s data relating to ESG goals, related information, and factors (“Data Provider Submitted Information”),
(b) use the Platform, including without limitation reports generated on the Platform (“Reports”) and other text, data, charts, analyses and other materials resulting from Data Provider’s use of the Services (together with Reports, the “Output”), and access Novata Benchmarks, in each case for Data Provider’s business purposes, and
(c) disclose such Data Provider’s Data Provider Submitted Information, Output, underlying data related to such Output, list of authorized Users using or accessing the Platform on Your behalf of the Data Provider (“Your Account”), and Usage Data (as defined herein) to the Data Requestor which introduced Data Provider to the Platform and/or pays Data Provider’s Subscription Fees and other third parties approved by such Data Requestor or by Data Provider from time to time (collectively, including such Data Requestor, “Authorized Recipients”); provided that, with respect to any and all benchmarks or related data provided by or otherwise generated by Novata (“Novata Benchmarks”), Data Provider shall not distribute or disclose such benchmarks except when such disclosure is inclusive of data contributed to the Platform that describes Data Provider’s performance relative to the Novata Benchmarks. With respect to general industry benchmarks provided by S&P, Data Provider shall not distribute or disclose such benchmarks except for distribution or disclosure of a Report containing such S&P benchmarks generated by our Platform.
1.2 Data Provider Obligations. Data Provider may be subject to additional restrictions with respect to third party content to the extent set forth in Data Provider’s Order or Quotation, if applicable.
1.3 Data Requestor Access and Use. Subject to these Terms and Conditions, Novata hereby grants Data Requestor during the relevant Subscription Term, a limited, revocable, non-exclusive, non-transferable right for Data Requestor to access and use the Platform, solely:
(a) for the purpose of accessing Novata Benchmarks and/or making referrals and uploading or providing ESG data and related information to Novata regarding any current or proposed Data Provider (“Requestor-Submitted Data about a Data Provider”),
(b) to view and analyze certain Requestor-Submitted Data about a Data Provider, Data Provider Submitted Information, Output, underlying data related to such Output, list of authorized Users associated with a Data Provider’s Account, and Usage Data, of each Data Provider it submits to Novata,
(c) to generate, modify, and download Output regarding the Data Providers, individually or collectively, for which Data Requestor pays the Subscription Fees hereunder or which authorize such access through the Platform during the applicable subscription term for each such Data Provider, and
(d) to disclose the Output to third parties subject to the restrictions set forth in these Terms and Conditions; provided that, with respect to any and all Novata Benchmarks, Data Requestor shall not distribute or disclose such benchmarks except when such disclosure is inclusive of data contributed to the Platform that describes the performance of such Data Requestor, or of a Data Provider it submits to Novata, relative to the Novata Benchmarks. With respect to general industry benchmarks provided by S&P, Data Requestor shall not distribute or disclose such benchmarks except for distribution or disclosure of a Report containing such benchmarks generated by our Platform.
1.4 Restrictions. You shall cite Novata and the Novata logo (as made available by Novata from time to time), in proximity to each disclosure of any Output or Novata Benchmarks, as the source of such Output or Novata Benchmarks. You shall not, directly or indirectly, (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on any element of the Services or any related documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services, including the Platform; (d) directly or indirectly re-identify, or attempt to re-identify, any de-identified data; (e) use the Services for any purpose other than its intended purpose; (f) interfere with or disrupt the integrity or performance of the Services; (g) use the Platform or any other Services to train any algorithms or develop any product or service which may compete with the Services; or (h) attempt to gain unauthorized access to the Services. All use of Novata Benchmarks is subject to the Novata Benchmarks Disclaimer.
1.5 Users; Registration; Login Credentials. You may authorize Novata, Your employees, Authorized Recipients (where You are a Data Requestor), contractors and third party consultants (each, Your “User”) to access and use the Platform and Services on Your behalf. You and each of your Users will be required to register with Novata in order to access and use the Platform and other Services, as applicable, and to share certain registration information with Novata. Novata will enable You and each User to establish login credentials for access and use of the Platform and certain other Services (“Your Account”) during the Subscription Term. Novata may permit any authorized Users of the Platform associated with Your Account to access a list of the Users accessing and using the Platform or Services under Your Account. You are solely responsible for any and all access and use of the Platform or Services, as applicable, that occurs under Your login credentials, including those of any of Your Users. You agree to immediately notify Novata of any verified or suspected unauthorized use of, or access to, Your login credentials, including those of any of Your Users.
1.6 Access to S&P Services. You acknowledge that certain of the Services or functionality of the Platform may include or rely on third party services provided by S&P Global Market Intelligence LLC or its affiliates (collectively, “S&P”). You hereby acknowledge and agree that (a) neither Novata, S&P, any of their affiliates nor any of their suppliers shall have any liability to You for the accuracy or completeness of the information or software furnished through the Platform or Services, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages; (b) any services or data provided by S&P made available to You in the Services are not investment advice and a reference to a particular investment or security, a credit rating or any observation concerning a security or investment provided in such data or services is not a recommendation to buy, sell or hold such investment or security or make any other investment decisions; (c) S&P, their affiliates or their suppliers have exclusive proprietary rights in the services or data provided by S&P and any information and software received in connection therewith; (d) You shall not use or permit anyone to use any services or data provided by S&P for any unlawful or unauthorized purpose; (e) You are not authorized or permitted to distribute or otherwise furnish information or software of S&P to any third-party without prior written approval of S&P; (f) Your access to the services and data provided by S&P is subject to termination in the event that any agreement between Novata and S&P terminates for any reason; and (g) S&P may enforce its rights against You as the third-party beneficiary of these Terms and Conditions, even though S&P is not a party to these Terms and Conditions.
2. SUBMISSION AND USE OF YOUR CONTENT.
2.1 Submission of Data Provider Content. Data Providers may provide Data Provider Submitted Information, and Data Requestors may provide Requestor-Submitted Data about a Data Provider, to the Platform (collectively, regardless of the source, “Data Provider Content”). Data Provider Content is referred to herein as “Your Content” of the Data Provider. In addition, Data Provider may provide Data Provider Content to Novata outside the Platform for upload by Novata to the Platform or for submission by Novata to Authorized Recipients through or outside the Platform. You acknowledge that Novata is not responsible for the actions or omissions of a Data Requestor or an Authorized Recipient that has access to Data Provider Content. Data Requestor acknowledges and agrees that a Data Provider for which Data Requestor pays their Subscription Fee is not prohibited from disclosing Data Provider Content or otherwise using the Novata Platform for its own purposes.
2.2 Submission of Data Requestor Content. Data Requestors may provide certain information regarding Data Requestor and its Authorized Recipients (“Data Requestor Content”). Data Requestor authorizes Novata to use such Data Requestor Content for the purposes of the Services and to disclose such Data Requestor Content to Data Providers, for which Data Requestor pays their Subscription Fee and authorizes such disclosure, and other third parties approved by such Data Requestor or by Data Provider from time to time. You acknowledge that Novata is not responsible for the actions or omissions of a Data Provider or an Authorized Recipient that has access to Data Requestor Content. Data Requestor Content is also referred to herein as “Your Content” of the Data Requestor. In addition, Data Requestor may provide Data Provider Content to Novata outside the Platform for upload by Novata to the Platform.
2.3 No Submission of Personally Identifiable Information. Whether as a Data Provider or Data Requestor, You shall not upload or, directly or indirectly, provide to our Platform any information that can be used to identify, contact, locate, distinguish or trace an individual’s identity or household, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual.
2.4 Usage Data. Data Provider hereby authorizes Novata to collect User emails and time stamps for each instance in which any of Data Provider’s Users of the Platform added or changed an answer in the Platform during the applicable Subscription Term, in a manner which may identify the applicable User, and other data regarding each of Data Provider’s Users’ access to and use of the Platform (“Usage Data”). All such Usage Data shall constitute Data Provider’s Data Provider Content. Data Provider shall inform all its Users associated with its account of the collection and use of Usage Data arising from their use of the Services.
2.5 License to Your Content. You grant to Novata a royalty-free, nonexclusive, irrevocable, perpetual, transferable, worldwide right and license to use Your Content (a) in order to provide the Services to You; (b) to analyze and improve the Platform, Website, and any other portion of the Services; (c) to compile, analyze, use, and disclose aggregated data, de-identified data, statistics, measurements or other metrics derived from Your Content (including in combination with the aggregated or de-identified data of other Novata customers) for its own purposes and solely in an aggregated or de-identified format; (d) if You provide any proposed metrics or questions related to assessment of ESG factors (“Metrics”), to use, copy, modify, disclose, and exploit such Metrics in connection with Novata’s products and services, (e) if You are a Data Provider, to enable Your Data Requestor to view Your Content, underlying data related to Your Content, Usage Data, list of authorized Users associated with Your Account, and download Your Output on or through the Platform or otherwise through Novata’s Services; and (f) if You are a Data Provider, or represent a Data Provider hereunder, solely if authorized by You through our Platform, to enable other customers or Users of the Services to view Your Content and/or receive Your Output on or through the Platform.
2.6 Use and Disclosures of Data Provider Content, Output and Usage Data. Data Provider hereby authorizes Novata to use Data Provider Content for the purposes of the activities contemplated by these Terms and Conditions and to disclose such Data Provider’s Data Provider Content, and Output to Authorized Recipients. You agree and acknowledge that the Authorized Recipients may retain and use such Data Provider Content, and Output for any legitimate business purpose, subject to any separate written agreement between You and the applicable Data Requestor or other third party which may restrict such Authorized Recipients’ use of such Data Provider Content, or Output. Data Provider agrees that Novata may rely on the written representation of a Data Requestor that Data Provider has granted such Data Requestor the right to be an Authorized Recipient without any duty of diligence. Novata shall not disclose Your Content to third parties, except as permitted under these Terms and Conditions or under the Privacy Notice. You agree and acknowledge that Novata shall not be responsible for any acts or omissions of any third party, including without limitation a third party’s use of Your Content obtained in conformance with these Terms and Conditions.
2.7 You are Responsible for Information You Provide to the Platform. By providing Your Content, You represent, warrant and covenant that such information is correct and complete, that You have the right to provide Your Content for the purposes set forth in these Terms and Conditions, without misappropriation, violation or infringement of any third party intellectual property rights, and that the provision of Your Content complies with all applicable laws and regulations. You are solely responsible for Your Content that You submit, use, display or share in connection with the Services or these Terms and Conditions. You agree and acknowledge that Your use of any information regarding a third party which You obtain through these Services shall be subject to the terms of any agreement between You and such third party.
2.8 Removal of Your Content from the Platform. You may at any time by written notice to Novata instruct Novata to promptly cease making Your Content available to Authorized Recipients through the Platform; provided, however, that (i) if You are a Data Provider, Your Content and all Output generated prior to Your request will continue to be available to your Authorized Recipients for the duration of their respective subscriptions to the Platform and (ii) any Requestor-Submitted Data Provider Data will be removed only if requested by both You and the applicable Data Requestor. In the event of such removal of Your Content, Novata may retain and use de-identified data, any Metrics, and any aggregated data and improvements to the Platform resulting or arising from Your Content and any licenses thereto under these Terms and Conditions. Nothing in this Section 2.8 shall limit any Authorized Recipient’s retention of Your Content they possess or download during their Subscription Term.
3.1 Subscription Fees. Our Services are subject to a periodic subscription fee for each Data Provider and Data Requestor (“Subscription Fees”), which varies based on the nature and extent of such Services. Applicable Subscription Fees will be identified in the course of Your subscription for Services, whether on our Website, in the applicable Order or Quotation. Except as provided in Section 3.3, You shall be billed in advance on a periodic basis, for the applicable Subscription Fees for such Services. Novata may change the Subscription Fees in its sole discretion at any time; provided that Subscription Fees for Your then-current Subscription Term will not change until the expiration of such then-current Subscription Term.
3.2 Payment Terms. Except as provided in Section 3.3, You shall pay Subscription Fees to Novata on a periodic basis for Services as required by Novata from time to time. If Your Subscription Term renews, You agree that we may automatically charge the payment method You provided to us. You represent that You have the legal right to use any payment method that You submit to us. Unless otherwise stated in the relevant Order or Quotation, all invoices for purchases you make directly from Novata are due and payable net 30 days from the date of invoice. You will pay fees and applicable taxes for the Services as set forth on the applicable Order. If you make a purchase from a Novata-authorized reseller, payment terms are determined between you and the reseller and you agree that we may share certain information about your account and purchases with that reseller as permitted by this Agreement. All amounts payable under these Terms and Conditions will be made without setoff or counterclaim, and without any deduction. All amounts paid to Novata are non-refundable except as expressly set forth herein. Your payment and related payment information is managed through a third party payment processor; Novata is not responsible for such third party processor’s use of Your payment information.
3.3 Data Requestor Payment of Data Provider’s Subscription Fees. If Data Requestor elects to pay the Subscription Fee for one or more Data Providers, Data Requestor shall pay Novata in advance on an annual basis for Services to be provided to each such Data Provider at each time that a payment is due from such Data Provider under Section 3.2, or such other frequency and timing as may be agreed by the parties. Data Provider shall be required to pay its Subscription Fees and any applicable taxes except to the extent paid by Data Requestor. Novata is not responsible to the Data Provider for a Data Requestor’s failure to pay the applicable Subscription Fee.
3.4 Binding Orders; Taxes. All orders for Services shall be non-cancellable and all amounts paid non-refundable, unless otherwise expressly set forth in the applicable Order or Quotation. You shall pay all applicable sales, use and value-added taxes (except for taxes imposed on Novata’s net income) with respect to the Services.
4. WARRANTIES; LEGAL DISCLAIMERS.
4.1 Mutual Representations, Warranties and Covenants. You and Novata each represent, warrant and covenant that: (a) such party has the full power and authority to enter into these Terms and Conditions and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) such party’s agreement to and performance under these Terms and Conditions shall not breach any oral or written agreement with any third party or any obligation owed by such party to any third party to keep any information or materials in confidence or in trust.
4.2 Output is Dependent on Quality of Your Content. You acknowledge that the quality of Services and Output are dependent upon the accuracy and completeness of Your Content made available to Novata through the Platform or other Services. Novata will have no liability or obligation to You or any other Data Provider or Data Requestor or Authorized Recipient whatsoever in connection with the Output, the Services or these Terms and Conditions as a result of any inaccuracy, deficiency or incompleteness of Your Content.
4.3 We Do Not Provide Investment or Financial Advice or Verify any User Content. Novata does not provide, and the Platform, Website and other Services do not include or provide, nor shall they be construed to include or provide, professional investment or financial advice. Novata does not verify the content provided by any User, Data Provider or Data Requestor. The Services and Output are for informational purposes only.
4.4 Warranty Disclaimer. THE WEBSITE, PLATFORM, AND OTHER SERVICES ARE PROVIDED TO YOU ON AN AS-IS BASIS. YOUR USE OF THE WEBSITE AND OTHER SERVICES IS AT YOUR RISK. NOVATA DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE. NOVATA FURTHER DOES NOT REPRESENT OR WARRANT, AND DISCLAIMS, THAT THE WEBSITE, PLATFORM, APPS OR OTHER SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE, NOR DOES NOVATA WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
5. OWNERSHIP RIGHTS.
5.1 Ownership of Your Content. The parties acknowledge that, as between You and Novata, You are the sole and exclusive owner of Your Content, without limiting the rights set forth in these Terms and Conditions.
5.2 Ownership of the Platform and Website. You acknowledge that the Platform, Website, and all other content available through our Services (other than Your Content), and all intellectual property rights therein, are the sole and exclusive property of Novata and its licensors.
5.3 Ownership of Marks. The service marks and trademarks of Novata, including without limitation “Novata” and the Novata logo, are service marks owned by Novata, Inc. Any other trademarks, service marks, logos and trade names appearing via the Services are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
5.4 Limited Feedback License. You hereby grant to Novata, at no charge, an unrestricted, non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Platform, Website or other Services, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback or derivative works in the Services or any other products or services. Feedback is provided by You “as is” without warranty of any kind by You. Novata is not obligated to keep, retain, or use any Feedback You may submit and is not liable for any use or disclosure of the Feedback.
6.1 By using or accessing our Platform or other Services or any Output thereof, You agree to indemnify, hold harmless and defend Novata and its officers, directors, employees and suppliers from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, reasonable attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with (a) Your use of the Platform or other Services; (b) Your Content; (c) any breach or alleged breach by You of any of Your covenants, representations or warranties set forth in these Terms and Conditions; or (d) Your breach of any applicable law or regulation. Novata will notify You promptly of any claim or liability for which indemnification is sought, provided, however, that the failure to give such notice shall not relieve You of Your obligations hereunder except to the extent that You were actually and materially prejudiced by such failure. You shall not settle any claim for which indemnification is sought under this Section 6 without the prior written approval of Novata, which approval shall not be unreasonably withheld, conditioned or delayed; providedthat such settlement (a) makes no admission or acknowledgment of liability or culpability with respect to Novata, (b) includes a complete release for Novata, and (c) does not seek any relief against the Novata other than the payment of money damages to be borne by You.
7. LIMITATION OF LIABILITY.
7.1 No Consequential Damages. NOVATA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, REGARDLESS OF WHETHER NOVATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE NOVATA PLATFORM, WEBSITE OR OTHER SERVICES, OR RESULTS THEREOF. NOVATA WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
7.2 Limits on Liability. NOVATA SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY YOU TO NOVATA UNDER THESE TERMS AND CONDITIONS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY NOVATA TO YOU IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THESE TERMS AND CONDITIONS.
7.3 Essential Purpose. You acknowledge that the terms in this Section are an essential basis of the bargain described in these Terms and Conditions and that, were Novata to assume any further liability, the fees payable hereunder would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
8.1 Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to these Terms and Conditions, that is marked confidential or proprietary, or that the Disclosing Party identifies as confidential or proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential or proprietary information. Confidential Information does not include any Metrics requested by You, unless otherwise agreed in writing by the parties from time to time on a case-by-case basis. Confidential Information of Novata shall include the Novata Platform and Services and Confidential Information of You shall include Your Content.
8.2 Non-Disclosure. Each party acknowledges that in the course of the performance of these Terms and Conditions, it may obtain the Confidential Information of the other party. The Receiving Party shall (and, in the event Novata is the Receiving Party, subject to Novata’s rights under these Terms and Conditions), at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under the terms of these Terms and Conditions. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates, subcontractors, agents who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms and Conditions. Further, Novata may disclose Your Content to any third party which You authorize under these Terms and Conditions or in connection with Your use of the Platform; Novata shall not be responsible for any acts or omissions of any such third party.
8.3 Exceptions to Confidential Information. The obligations set forth in Section 8.2 shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of these Terms and Conditions or any obligation of confidentiality by the Receiving Party. Nothing in these Terms and Conditions shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
8.4 Publicity. Each party may use the other party’s name and logo to publicly disclose that You are a customer of Novata’s services, in printed, online or other media. All goodwill arising from use of a party’s trademarks shall inure to such party.
8.5 Data Security. Novata will maintain the security of Your Content in accordance with the Novata Information Security Schedule available at https://trust.novata.com.
8.6 Data Processing Agreement. In the event that any of Your Content is subject to the European Union General Data Protection Regulation (“EU GDPR”) or the UK Data Protection Act 2018 and the UK General Data Protection Regulation (together, the “UK Data Protection Law”)) (hereinafter, “Personal Data”), Novata will only process such Personal Data in accordance the data processing agreement at www.novata.com/dpa (“DPA”) If applicable, You hereby agree that the DPA reflects the parties’ agreement with respect to the processing of Personal Data by us on Your behalf in connection with the Services under these Terms and Conditions. The DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which may be specified in these Terms and Conditions, an Order or an executed amendment thereto. In case of any conflict or inconsistency with the terms of the Agreement, the DPA will take precedence over the terms of these Terms and Conditions to the extent of such conflict or inconsistency. Should you require an executed and signed version of the DPA, please email email@example.com.
9. DURATION, RENEWAL AND TERMINATION OF YOUR SUBSCRIPTION TERM.
9.1 Subscription Term; Renewals. Your Subscription Term shall be for a period of one (1) year from the date of the applicable Order or Quotation, unless a different Subscription Term is specified in such Order or Quotation. Unless otherwise specified in the applicable Order or Quotation, for any successive renewal term, Client shall pay Novata’s then-standard fees, or any other fees mutually agreed in writing by the Parties from time to time.
9.2 Termination. Either party may terminate these Terms and Conditions (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) becomes insolvent or bankrupt, admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and Conditions and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree to in writing.
9.3 Effects of Termination. Upon expiration or termination of these Terms and Conditions, Your use of and access to, and right to refer, the Platform and other Services, and Your right to access and use the Website, shall cease and Novata shall have no obligation to maintain or provide any of Your Content and may at our discretion, unless legally prohibited, delete all Your Content in our systems or otherwise in our possession or under our control.
10.1 Entire Agreement. These Terms and Conditions, together with the applicable Order or Quotation, the Novata Privacy Notice, if applicable under Section 8.6, the DPA, and any applicable Professional Services Addendum, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, except for written agreements which expressly provide that such agreements supersede these Terms and Conditions.
10.2 Changes to these Terms and Conditions. These Terms and Conditions may be amended only in a written agreement that is signed by duly authorized representatives of both parties or through a click through agreement provided by Novata that is accepted by You; provided that these Terms and Conditions as applicable to Users of our Website (excluding Data Requestors with a paid subscription with Novata) may be unilaterally amended by Novata by posting of such update Terms and Conditions on the Website and shall be effective from and after such posting.
10.3 Waiver; Severability. No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party. If any provision of these Terms and Conditions is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
10.4 Governing Law. These Terms and Conditions and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the State of New York, USA, without regard to conflict of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms and Conditions. The parties consent to exclusive jurisdiction and venue in the state or federal courts located in the State of New York, USA.
10.5 Arbitration. Any dispute, controversy or claim arising out of or relating to these Terms and Conditions, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules.The Tribunal will consist of one (1) arbitrator. The place of arbitration will be New York, NY, USA. Despite the foregoing, the parties may jointly agree in writing that any arbitration hearing(s) be conducted remotely via appropriate videoconferencing technology. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in the state or federal courts located in the State of New York, USA. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
10.6 Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms and Conditions due to fire, explosion, earthquake, pandemic, epidemic, outbreak of disease, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms and Conditions); or any other event beyond the reasonable control of the party whose performance is to be excused. If performance is delayed as a result of a force majeure event, the affected party shall provide prompt written notice to the other party and shall be excused from default or delay in performance while such circumstances prevail so long as such party continues to use commercially reasonable efforts to recommence performance as soon as possible.
10.7 Export Controls and Sanctions. Each party agrees to comply with all applicable export control and sanctions laws and regulations, including regulations promulgated by the U.S. Treasury Department’s Office of Foreign Assets Control, and other relevant local export laws as they apply to the Services. Each party agrees not to export, reexport, or retransfer any goods or Services received in connection with these Terms and Conditions or related Subscription Term(s) in violation thereof or applicable export controls and sanctions, including territory-wide sanctions imposed by the U.S. Government. Each Party further certifies that it will not cause the other party to violate any applicable export control and sanctions laws and regulations of the United States or other relevant local export laws as they apply to the Services. Failure to comply with all applicable export control and sanctions laws will be deemed a material breach of these Terms and Conditions.
10.8 Anti-corruption. Each party agrees to comply with all applicable anti-corruption laws and regulations, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Each party agrees not to perform, offer, give or receive bribes or otherwise engage in corrupt actions in connection with these Terms and Conditions and related Subscriptions. Failure to comply with anti-corruption laws will be deemed a material breach of these Terms and Conditions.
10.9 Successors and Assigns. These Terms and Conditions will bind and benefit the parties and their successors and permitted assigns.
10.10 Subcontractors. Novata may utilize subcontractors and subprocessors (“Subcontractors”) in connection with the activities contemplated by these Terms and Conditions; provided that Novata shall remain liable for the acts and omissions of any such Subcontractors as if they were acts and omissions of Novata under these Terms and Conditions.
10.11 Relationship of the Parties. Novata is an independent contractor to You. There is no relationship of agency, partnership, joint venture, employment, or franchise between You and Novata. Neither party has the authority to bind the other or to incur any obligation on its behalf.
10.12 Contact Us. Please contact us at firstname.lastname@example.org if You have any questions about these Terms and Conditions, or our Services.
Copyright © July 2023 Novata, Inc.
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