Terms and Conditions

Novata, Inc.

CUSTOMER TERMS AND CONDITIONS

Welcome to Novata!  Novata is 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 from time to time make available, “Website”) or other related services made available by Novata from time to time.  

These Terms and Conditions apply to the Platform, Website and all services made available through the Platform and our Website or in connection therewith (collectively, including the Platform and Website, “Services”). These Terms and Conditions are a binding agreement between you and the entity you represent (“You” or “Your”) and Novata, Inc. (“Novata”) pursuant to which (1) You may access and use the Services as a “Data Provider” (otherwise known as a “Service User”) in order to (a) upload or provide Your data relating to ESG goals and factors and (b) review, download and share outputs of the Services relating to Your attainment of ESG goals and factors, and/or (2) You may refer the Services as a Data Requestor (otherwise known as a “Service Referrer”) to one or more third party Data Providers, as applicable.  You may be either or both a Data Provider or Data Requestor hereunder, as the context may require, depending on the manner in which You use or interact with the Platform or Services.  The date You first agree to these Terms and Conditions is referred to herein as the “Effective Date.”  

Your use or referral of the Services is also subject to our Privacy Policy available on our Website at https://www.novata.com/privacy-policy as such Privacy Policy may be updated from time to time.  Your use of our Website is also subject to our Website Terms of Use at https://www.novata.com/terms-of-use; provided that these Terms and Conditions shall govern in the event of any conflict with such Website Terms of Use.  Further, You agree and acknowledge that Your use of our Services is also subject to Your acceptance of, and continued compliance with, the S&P Terms set forth in Section 1.6.  

These Terms and Conditions may be agreed by You through a click through process on the Website, through a signed order form (“Order Form”) 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 FORM 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 authority to bind such entity to these Terms and (b) agree to be bound by these Terms on behalf of such entity.

  1. OUR PLATFORM AND OTHER SERVICES.
    1. Data Provider Access and Use.  Subject to the terms and conditions of 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 (“Subscription Term”), a limited, revocable, non-exclusive, non-transferable right for Data Provider to access and use the Services, solely for Data Provider’s internal business use.  Data Provider is responsible for obtaining, deploying and maintaining all computer hardware, software, modems, routers and other equipment necessary for Data Provider to access and use the Services via the Internet.  Data Provider may (i) upload or provide Data Provider data relating to ESG goals and factors, (ii) 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”), in each case for Data Provider’s internal business proposes and (ii) disclose the metrics and analyses included in such Output to third parties (provided that, with respect to general industry benchmarks provided by S&P, You shall not distribute or disclose such benchmarks except for distribution or disclosure of a Report containing such benchmarks generated by our Platform); provided that (a) You may be subject to additional restrictions with respect to third party content to the extent set forth in Your Order Form or Quotation, if applicable; and (b) Data Provider shall cite Novata and the Novata logo (as made available by Novata from time to time), in proximity to each disclosure of any Output, as the source of such Output.  
    2. Data Requestor Access and Use.  Subject to the terms and conditions of these Terms and Conditions, Novata hereby grants Data Requestor a limited, revocable, non-exclusive, non-transferable right for Data Requestor to access and use the Platform, solely (i) for the purpose of making referrals and uploading or providing ESG data to Novata on behalf of any Referred Company (as defined below) in furtherance of any referral, (ii) to view and analyze the data of each Referred Company it submits to Novata and generate and download Reports and other Outputs regarding Referred Companies, individually or collectively, during the applicable subscription term for each such Referred Company and (iii) disclose the metrics and analyses included in such Output to third parties (provided that, with respect to general industry benchmarks provided by S&P, You shall not distribute or disclose such benchmarks except for distribution or disclosure of a Report containing such benchmarks generated by our Platform).  Data Requestor is responsible for obtaining, deploying and maintaining all computer hardware, software, modems, routers and other equipment necessary for Data Requestor to access and use the Platform via the Internet.  
    3. Restrictions.  You shall not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on any element of the Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services, including the Platform; (iv) directly or indirectly re-identify, or attempt to re-identify, any anonymized data; (v) use the Services for any purpose other than its intended purpose; (vi) interfere with or disrupt the integrity or performance of the Services; (vii) use the Platform or any other Services to train any algorithms or develop any product or service which may compete with the Services; or (viii) attempt to gain unauthorized access to the Services.
    4. Users; Registration; Login Credentials.  Data Providers and Data Requestors may authorize their employees, contractors and third party consultants (each, a “User”) to access and use the Platform and Services on behalf of such Data Provider or Data Requestor.  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. In order to register, You and each User will be required to share certain information with Novata.  Novata will enable You and each User to establish a username and password for access and use of the Platform and certain other Services during the Subscription Term. You are responsible for maintaining the confidentiality and security of all such login credentials for You and each of your Users.  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 unauthorized use of, or access to, Your login credentials, including those of any of Your Users.  
    5. 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 Data Provider or Data Requestor.  The Services and Output are for informational purposes only.
    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 (i) 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; (ii) 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; (iii) 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; (iv) You shall not use or permit anyone to use any services or data provided by S&P for any unlawful or unauthorized purpose; (v) 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; (vi) 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 (vii) 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 CONTENT THROUGH THE PLATFORM.

You may upload information to our Platform, or authorize one or more third parties’ to provide Your information from other platforms or sources, from time to time (“Your Content”); provided, however, that You may not and 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, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual.  You may request that we remove Your Content regarding You (but not any other Data Requestor or Data Provider) from the Platform at any time by written notice to Novata, and Novata will remove such content from the Platform reasonably promptly following receipt of such notice, subject to Novata’s rights under Section 6.2.  You are responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of all Your Content that You submit to the Platform or otherwise provide to Novata in connection with these Terms and Conditions.  By providing any of Your Content, You represent, warrant and covenant 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 shall not submit, upload, post, display or share any of Your Content that You do not have the right to copy, use or share for the purposes set forth in these Terms and Conditions.  Your Content is subject to Novata’s rights set forth in 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.  

  1. DATA PROVIDER FEES.  
    1. Subscription Fees.  Some of our Services are provided free of charge while other Services are subject to a fee (“Subscription Fee”) which varies based on the nature and extent of such Services.  Any applicable Subscription Fees will be identified in the course of Data Provider’s subscription for Services.  For any Services subject to a Subscription Fee, Data Provider will be billed in advance on a periodic basis, for the applicable Subscription Fees for such Services.  Data Provider shall be responsible for all such Subscription Fees to the extent such amounts are not paid by a third party Data Requestor on Data Provider’s behalf.  Except as otherwise specified on the Website at the time of Data Provider’s purchase, subscriptions and Subscription Fees are non-cancellable during the Subscription Term.  Novata may change the Subscription Fees in its sole discretion at any time; provided that Subscription Fees for Data Provider’s then-current Subscription Term will not change until the expiration of such then-current Subscription Term.  Further, Novata may limit the availability or duration of any free Services at any time in Novata’s discretion.
    2. Data Provider Payment Terms.  To the extent such amounts are not paid by a third party Data Requestor, Data Provider shall pay the Subscription Fees to Novata on a periodic basis for Services as required by Novata from time to time.  If  Data Provider, agrees to a subscribe to Services on a recurring basis (i.e., automatic subscription renewal), Data Provider agrees that we may automatically charge the payment method Data Provider has provided at the agreed intervals, unless and until Data Provider cancels Data Provider’s Subscription Term by submitting cancellation in writing.  Data Provider represents that Data Provider has the legal right to use any payment method that Data Provider submits to us.  Data Provider shall pay Novata the amount due under any invoice within thirty (30) days after the date of invoice by such payment methods as are supported by Novata at the time of payment.  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.  Data Provider 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 Data Provider’s payment information.
    3. 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 Form or Quotation.  Data Provider shall pay all applicable sales, use and value-added taxes (except for taxes imposed on Novata’s net income) with respect to the Services.
  2. sERVICE REFERRER FEES.
    1. Data Requestor Fees.  In Your capacity as a Data Requestor hereunder, You may refer the use of our Services to one or more third parties (each, a “Referred Company”).  Each Referred Company that desires to use our Services shall enter into Terms and Conditions substantially in the form of these Terms and Conditions as a Data Provider, as a condition to the use and access to our Services.  For each Referred Company, Data Requestor shall provide the name of the applicable Referred Company and contact information of an officer or representative of such Referred Company that has the authority to bind such Referred Company to an agreement for use of the Services as a Data Provider.  For each referral Data Requestor makes to Novata, Data Requestor represents and warrants that it has the right to make such referral and provide such contact information to Novata.  Data Requestor may elect to pay the Subscription Fee for any such Referred Company.  If Data Requestor so elects, such Referred Company’s continued use of the Services will be subject to Data Requestor’s or the Referred Company’s continued payment of the applicable Subscription Fees and Data Requestor will be billed in advance for the applicable Subscription Fees for Services provided to such Referred Company as set forth in Section 4.2.  With respect to each Referred Company that subscribes to the Services, such Referred Company’s Subscription and Subscription Fees are non-cancellable during the applicable subscription term of that Referred Company.  Novata may change the Subscription Fees for any Referred Company in its sole discretion at any time; provided that Subscription Fees for the Referred Company’s then-current fee-bearing subscription term of that Referred Company will not change until the expiration of such then-current subscription term.  Further, Novata may limit the availability or duration of any free Services to any Referred Company or other user at any time in Novata’s discretion.
    2. Data Requestor Payment Terms.  If Data Requestor elects to pay the Subscription Fee for one or more Referred Companies, Data Requestor shall pay Novata in advance on an annual basis for Services to be provided to each such Referred Company, or such other frequency and timing as may be agreed in the applicable Order Form or Quotation.  If Data Requestor agrees to pay the Subscription Fees for  a Referred Company that subscribes to the Services on a recurring basis (i.e., automatic subscription renewal) or if Data Requestor or Referred Company renews the Referred Company’s subscription to the Services at the end of the applicable subscription term, Data Requestor agrees that we may automatically charge the payment method Data Requestor has provided at the agreed intervals, unless and until Data Requestor cancels the subscription term of the applicable Referred Company by submitting a notice to Novata in writing in accordance with the Terms and Conditions by and between Novata and the Referred Company.  Novata may reflect increases in its standard Subscription Fees in the amounts charged to Data Requestor for each such renewal.  Data Requestor represents that Data Requestor has the legal right to use any payment method that Data Requestor submits to us.  Data Requestor shall pay Novata the amount due under any invoice within thirty (30) days after the date of invoice by such payment methods as are supported by Novata at the time of payment.  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.  Data Requestor 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 Data Requestor’s payment information.
    3. Taxes.  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 for which You pay fees hereunder.
  3. Warranties; DISCLAIMERS.
    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.
    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 Referred Company 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.
    3. Warranty Disclaimer.  THE WEBSITE, PLATFORM AND OTHER SERVICES ARE PROVIDED TO YOU ON AN AS-IS BASIS.  YOUR USE AND ANY REFERRED COMPANY’S USE OF THE WEBSITE AND OTHER SERVICES IS AT YOUR OR SUCH REFERRED COMPANY’S OWN RISK.  NOVATA DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NOVATA DISCLAIMS ALL LIABILITY FOR THE LOSS OF DATA ENTERED INTO OR SAVED IN THE WEBSITE OR PLATFORM.  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.
  4. PROPRIETARY RIGHTS.
    1. Ownership. The parties acknowledge that, as between You and Novata, You are the sole and exclusive owner of Your Content.  You acknowledge that the Platform, Website and 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.  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/or 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.
    2. License to Your Content.  You grant to Novata a royalty-free, nonexclusive, irrevocable, perpetual, transferable, worldwide right and license to use Your Content that You submit to Novata, the Platform or the Services (a) in order to provide the Services; (b) to analyze and improve the Platform, Website and any other portion of the Services; (c) to compile, analyze, use and disclose aggregate or de-identified data, statistics, measurements or other metrics derived from Your Content (including in combination with the aggregate or de-identified customer data of other Novata customers) for its own purposes; (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 and download Your Output on or through the Platform; and/or (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 of the Services to view Your Content and/or receive Your Output on or through the Platform.  Aggregate or de-identified data means data that does not identify You or any other individual or entity.  You may at any time by written notice to Novata withdraw any portion of Your Content regarding You from the Platform or the Services and Novata will reasonably promptly remove such portion of Your Content from the Services; provided, however, that Novata may retain and use any Metrics, aggregated data and improvements to the Platform resulting or arising from Your Content and any licenses thereto under this Section 6.2 prior to such removal. 
    3. Disclosure of Your Content.  Novata shall not disclose Your Content to third parties, except as permitted under these Terms and Conditions or under the Privacy Policy.  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.
    4. Limited Feedback License.  You hereby grant to Novata, at no charge, a 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 and/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.
  5. Indemnification.

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, 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 7 without the prior written approval of Novata, which approval shall not be unreasonably withheld or delayed.

  1. Limitation of Liability.
    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.
    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. 
    3. Essential Purpose.  You acknowledge that the terms in this Section 8 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 8 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.
  2. CONFIDENTIALITY
    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 and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (i) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (ii) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; and (iii) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business. 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.
    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 Section 6.2), 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.  Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section.  The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates, subcontractors and agents who need access to such Confidential Information in order to effect the intent of these Terms and Conditions and 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 in connection with Your use of the Platform; Novata shall not be responsible for any acts or omissions of any such third party.
    3. Exceptions to Confidential Information.  The obligations set forth in Section 9.2 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.
    4. Publicity.  Novata authorizes You to use Novata’s name and logo to disclose that You use Novata’s Services and to disclose the source of Your Output, in printed, online or other media.  You authorize Novata to use Your name and logo to 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.
    5. 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”)), You and Novata will enter into a separate data processing agreement (“DPA”) to address the requirements of such laws and regulations with respect to Your Content.
  3. TERM AND TERMINATION.
    1. Term.  The term of these Terms and Conditions shall commence on the Effective Date and continue until the later of expiration or termination of Your Subscription Term(s) or the expiration or termination of all Referred Company subscription terms for Services, unless earlier terminated as provided in these Terms and Conditions.
    2. Termination.  Novata reserves the right to terminate these Terms and Conditions for no reason in its sole discretion at any time; provided that, in the event such termination of fee-bearing Services without cause, Novata will provide a pro-rata refund to You of any pre-paid fees for the then-current Subscription Term.  Further, 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 or 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.
    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.
  4. Miscellaneous.
    1. Entire Agreement; Precedence.  These Terms and Conditions, together with any supplemental terms expressly agreed by the parties through the Platform or Website concurrently herewith or subsequent hereto, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.  In the event of a conflict between or among the terms of these Terms and Conditions, such conflict will be governed in the following order of precedence: (i) any DPA, solely with respect to the matters covered therein; (ii) these Terms and Conditions; (iii) the attachments to these Terms and Conditions (other than any DPA); (iv) the Order Form, unless the Order Form specifically references the conflicting term, and (v) any other terms incorporated by reference.
    2. Changes to these Terms and Conditions; Waiver.  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 users 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.  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. 
    3. Severability.  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.
    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 giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country.  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. For any disputes arising out of these Terms and Conditions, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in the New York, New York, USA. 
    5. Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms and Conditions due to fire, explosion, earthquake, epidemic, 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.
    6. Successors and Assigns.  These Terms and Conditions will bind and benefit the parties and their successors and permitted assigns. 
    7. 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.
    8. Contact Us.  Please contact us at support@novata.com if You have any questions about these Terms and Conditions, or our Services.  

These Terms and Conditions last updated on September 2, 2022.

Copyright © 2022 Novata, Inc.

[End of Terms and Conditions]