End User License Agreement for Services through Resellers
This End User License Agreement for Services through Resellers (this “Agreement”) governs End User’s access to and use of Notabene’s services made available through Notabene’s platform, including Notabene Transact, Notabene Flow, and any other services, products, or features made available to End User through an authorized reseller (collectively, the “Services”). The Services include all related or incorporated software, software components, code, data, databases, algorithms, technologies, processes, methods, and APIs. This Agreement also governs the use of the security policies and procedures at https://trust.notabene.id/ and other technical materials related to the Services, as updated from time to time (“Documentation”).
This Agreement is by and between Notabene, Inc., a Delaware corporation (“Notabene”), and the individual or legal entity identified in the applicable order form, purchase document, invoice, online flow, or other customer document between End User and Reseller (“Customer Document”) as the customer or user of the Services (“End User” or “you”). The “Reseller” is the third-party entity that Notabene has authorized to market and resell the Services to End Users and that is making these Services and the Documentation available to you.
NOTABENE PROVIDES THE SERVICES, INCLUDING ANY ASSOCIATED SOFTWARE AND DOCUMENTATION, SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT THE END USER ACCEPTS AND COMPLIES WITH THEM. BY ACCESSING OR USING THESE SERVICES, YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND ALSO REPRESENT AND WARRANT THAT: (1) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT AND (2) IF END USER IS A COMPANY, CORPORATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF END USER AND TO BIND END USER TO ITS TERMS. IF END USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS THE SERVICES OR DOCUMENTATION.
1. Access Rights.
a. Rights Granted. Subject to the terms and conditions of this Agreement, Notabene hereby grants End User a limited, non-exclusive, non-sublicensable, non-transferable license to use and access the Services solely for End User’s internal business purposes. If the Services include Notabene Flow, the Notabene Flow Addendum at https://notabene.id/agreements/flow-addendum applies and is incorporated into this Agreement as if fully set forth herein.
b. Documentation. Notabene or Reseller may provide or otherwise make available to End User the Documentation associated with the Services, and End User may use and refer to this Documentation in accessing and using the Services as authorized in this Agreement. End User will not copy, redistribute, transfer, adapt, or in any way use the Documentation except for the purposes necessary pursuant to this Agreement.
c. Rights Reserved. Notabene reserves all license rights not expressly granted under this Agreement. This Agreement does not convey to you an interest in or to the Services or Documentation, but only a limited right of use and access that is revocable in accordance with the terms of this Agreement. You acknowledge that Notabene retains ownership of all intellectual property rights that are embodied in or practiced by the Services and Documentation. No title to any intellectual property rights in, or to any copy of, the Services or Documentation is transferred to you by this Agreement.
d. Limitations and Restrictions. You will not act, or permit anyone else to act, outside or beyond the scope of the access rights that are expressly granted by this Agreement. You will not and will not permit anyone to, directly or indirectly: (i) use or access the Services or Documentation in an unauthorized manner or otherwise misuse the Services; (ii) modify, or create derivative works of, the Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iv) frame, mirror, distribute, sell, resell, rent, or lease the use of the Services or otherwise allow anyone to use the Services other than for the benefit of End User in accordance with this Agreement; (v) use the Services that in any manner infringes, misappropriates, or otherwise violates any intellectual property right of a third party or other right of a third party or that violates any applicable law, including but not limited to privacy laws; (vi) provide, submit, or use, in conjunction with the Services, any data or other materials that infringe, misappropriate, or otherwise violate any intellectual property right or other right of a third party or that violate any applicable law, including but not limited to privacy law; (vii) interfere with or encumber, or disrupt the integrity or performance of, the Services or any data or content that the Services contain or transmit; (viii) interfere with, modify, bypass, or disable any security measures or controls or other protection mechanisms of or in the Services, or share any access credentials with a third party; (ix) introduce or expose the Services to malware, viruses, trojan horses, worms, or other harmful or disabling software routines or components or those which permit unauthorized access or disable, erase, or harm software or data; (x) use the Services, Documentation, or any other Notabene Confidential Information (defined below) for benchmarking or competitive analysis for competitive or related products or services, or (xi) use or reference the Services, Documentation, or any other Notabene Confidential Information in any way, in whole or in part, to develop, commercialize, license, or sell any product, service, or technology that could, directly or indirectly, compete with the Services.
e. Compliance. You may access and use the Services and Documentation only for lawful purposes. You represent and warrant that you comply, and will continue to comply, with all Applicable Law in connection with this Agreement, the access rights granted above, and your use of the Services and Documentation. “Applicable Law” means all laws, statutes, regulations, rules, and binding guidance applicable to End User, including, but not limited to, those relating to anti-money laundering, counter-terrorism financing, sanctions, anti-bribery and anti-corruption, export controls, data protection, privacy, and unfair or deceptive trade practices. Without limiting the generality of the foregoing, you agree to comply fully with all applicable export control, anti-boycott, and economic sanctions laws, including those administered by OFAC, the European Union, and OFSI. You will not use, access, or enable use of the Services for the benefit of any country, territory, organization, or individual on any applicable sanctions list, any country or territory subject to comprehensive sanctions, or any prohibited end use, including activities involving weapons of mass destruction, terrorism, or other illegal conduct.
2. Intellectual Property Rights.
The Services and Documentation are made available on a limited access basis, and no ownership right, or any other intellectual property right, is conveyed to you, irrespective of the use of terms such as “purchase” or “sale” by Reseller or otherwise. As between Notabene and you, Notabene has and retains all right, title, and interest, including all intellectual property rights, in and to the Services and Documentation. Such intellectual property rights include, without limitation, patent rights (including, without limitation, patent applications, filings, and disclosures, whether provisional or otherwise), inventions, trademarks, service marks, copyrights, trade secrets, know-how, data and database rights, mask work rights, and all applications or registrations for the protection of such rights, recognized in any country or jurisdiction in the world and however designated, whether arising by operation of law, contract, license, or otherwise.
3. Scope of Services.
a. Updates. You acknowledge that the Services are online, subscription-based products, and that Notabene may modify, update, replace, suspend, or discontinue the Services, or any feature or functionality of the Services, from time to time. Notabene will use commercially reasonable efforts to avoid discontinuing the Services in their entirety during an active End User subscription term unless required by Applicable Law, necessary to address a security, legal, regulatory, or operational risk, or otherwise permitted under this Agreement or the applicable Customer Document.
b. Third Party Software. The Services may contain or be accompanied by certain third-party software that is provided to you under terms and conditions that are different from this Agreement. Such terms and conditions will govern your use of the third-party software. Neither Notabene nor Reseller will be responsible or liable in any way for this third-party software or for your use of it, including but not limited to its performance or functionality.
c. Feedback. From time to time, you may choose to submit to Notabene suggestions, comments, feedback, or the like with regard to the Services, any support provided, or any other services provided to you in connection with your use of the Services (“Feedback”). By submitting any Feedback to Notabene, you hereby grant Notabene the rights and license to freely use, copy, disclose, license, distribute, and exploit such Feedback in any manner without any obligations, royalties, or restrictions based on intellectual property rights or otherwise.
4. Use and Collection of Your Data.
a. Rights Granted. End User grants Notabene a non-exclusive, worldwide, royalty-free license to use, host, reproduce, display, perform, and process End User data submitted to, or used in connection with, the Services (“End User Data”) solely to operate, provide, secure, support, and improve the Services in accordance with this Agreement.
b. Aggregated Data. Notwithstanding anything herein, End User acknowledges that Notabene may, directly or indirectly, collect, store, compile, use, analyze, disclose, or distribute any anonymized data that is derived or aggregated in de-identified form from (i) any End User Data, (ii) your use of the Services including, without limitation, any usage data or trends with respect to the Services, or (iii) performance of the Services (“Aggregated Data”), provided that Notabene does not use any “personal data” or “personal information” to derive Aggregated Data.
5. Reseller.
a. Purchases Made Through Reseller. You will pay any applicable fees to Reseller, as you and the Reseller have agreed. Notabene may suspend or terminate your rights to use the Services if Notabene does not receive the fees that Reseller has agreed to pay Notabene in conjunction with your use of the Services. Reseller is responsible for the accuracy of the information in the applicable Customer Document and for communicating such information to Notabene as necessary to provide the Services. Reseller shall be solely responsible for setting prices with you, accepting payment from you, and, if applicable, refunding any amounts to you. Reseller is not authorized to modify this Agreement or to make any representations, warranties, promises, or other commitments on behalf of Notabene. Notabene will not be bound by any obligations to you other than as set forth in this Agreement.
b. Support Services. Reseller is responsible for user setup and ongoing customer and technical support for End User, unless Notabene expressly agrees otherwise in a separate written agreement or other terms accepted by Notabene. Notabene has no obligation to provide support, implementation, configuration, training, consulting, professional services, or other services to End User unless Notabene expressly agrees to provide them in separate written terms accepted by Notabene, in which case such terms will govern these services.
c. Platform. Reseller is providing you with access to its platform (and the infrastructure that integrates this platform with the Services) (collectively, the “Platform”) under terms and conditions (including but not limited to an applicable Customer Document and/or any services agreement) that you and Reseller independently agree to and that are different from this Agreement. Such terms and conditions between you and Reseller govern your use of the Platform. Notabene will not be responsible or liable in any way for the Platform or your use of it, including but not limited to its performance or functionality.
6. Term and Termination.
a. Term. This Agreement begins when End User first accepts this Agreement or first accesses or uses the Services, whichever occurs first, and continues while End User has an active right to access the Services through Reseller, another Notabene-authorized reseller, a direct agreement with Notabene, or other terms accepted by Notabene.
b. Termination. End User’s access rights will terminate upon expiration or termination of the applicable Customer Document unless End User has transitioned to another Notabene-authorized reseller, entered into a direct agreement with Notabene, or Notabene otherwise agrees in writing. Notabene may suspend or terminate End User’s access to the Services if End User breaches this Agreement, if Reseller fails to pay amounts due to Notabene for End User’s access, if continued access creates legal, regulatory, sanctions, security, operational, or reputational risk, or if suspension or termination is required by law or governmental authority.
c. Effects of Termination. End User will immediately cease accessing and using the Services when End User’s access rights terminate or this Agreement expires or terminates. Provisions of this Agreement which are reasonably intended to survive termination, or that are needed subsequently, will survive termination.
7. Disclaimer.
a. General. THE SERVICES (AND ANY THIRD PARTY SOFTWARE) ARE PROVIDED “AS IS” AND AT END USER’S SOLE RISK. NOTABENE MAKES NO WARRANTIES OF ANY KIND, AND NOTABENE DISCLAIMS, TO THE MAXIMUM EXTENT THAT APPLICABLE LAW PERMITS, ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NOTABENE DISCLAIMS ANY WARRANTY THAT THE USE OF THE SERVICES WILL BE ERROR-FREE, BUG-FREE, OR UNINTERRUPTED. USE OF THE SERVICES DOES NOT REPLACE, NOR DELEGATE TO NOTABENE, ANY OBLIGATIONS THAT END USER MAY HAVE UNDER APPLICABLE LAW.
b. No Regulatory Reliance. The Services, the Documentation, and any workflow, message, or other functionality of the Services do not guarantee compliance with any law or regulation, including, but not limited to, the Travel Rule. Notabene disclaims any and all liability for End User’s legal, regulatory, AML, CTF, sanctions, Travel Rule, licensing, reporting, and operational obligations.
c. Additional Disclaimers. Notabene is not responsible for, and disclaims all liability arising out of or relating to: (i) Customer Documents, customer support provided by Reseller, or any service, platform, infrastructure, data, or other materials provided by Reseller or on its behalf; (ii) End User’s relationship, agreements, or disputes with any Reseller; (iii) End User’s acts, omissions, data, or use of the Services; or (iv) any security incident or compromise involving the Services to the extent caused by End User.
8. Limitation of Liability.
IN NO EVENT WILL NOTABENE OR ITS AFFILIATES HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF INCOME, LOSS OF DATA, LOSS OF REVENUE, LOSS OF GOODWILL, COVER, OR BUSINESS INTERRUPTION, AND IN NO EVENT WILL THE AGGREGATE LIABILITY OF NOTABENE OR ITS AFFILIATES TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES EXCEED TEN THOUSAND U.S. DOLLARS ($10,000). THE FOREGOING SENTENCE APPLIES WHETHER ANY SUCH LIABILITY ARISES FROM CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR FROM ANY OTHER THEORY OF LIABILITY, AND WHETHER NOTABENE OR ITS AFFILIATES KNEW, SHOULD HAVE KNOWN, OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR IF ANY REMEDY OTHERWISE FAILS IN ITS ESSENTIAL PURPOSE. THIS PARAGRAPH WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU ACKNOWLEDGE THAT THIS PARAGRAPH IS AN ESSENTIAL PART OF THIS AGREEMENT, WITHOUT WHICH THE ECONOMIC TERMS AND OTHER PROVISIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
9. Confidentiality.
“Confidential Information” means any information that you or Notabene (the “Discloser”) provides to the other party (“Recipient”), respectively, in connection with this Agreement or the Services, whether orally, digitally, or in writing, that is designated as confidential or that reasonably should be considered confidential given the nature of the information and/or the circumstances of disclosure. Without limiting the foregoing, the Services are Notabene’s Confidential Information. However, Confidential Information will not include any information that: (i) is or became public without any act or omission by Recipient; (ii) was lawfully known by Recipient without any restriction or confidentiality obligation; (iii) was rightfully disclosed to Recipient by a third party that did not have a confidentiality obligation; or (iv) was independently developed by Recipient without use of or access to Discloser’s Confidential Information.
The Recipient will maintain the Discloser’s Confidential Information in strict confidence, using at least the same degree of care as the Recipient uses to protect its own Confidential Information of a similar nature and importance, but in any event no less than a commercially reasonable standard of care. The Recipient will use Confidential Information solely as necessary to perform its obligations under this Agreement and will promptly notify the Discloser if the Recipient discovers any misuse or misappropriation of Confidential Information. The Recipient will not disclose, or cause to be disclosed, any of Discloser’s Confidential Information to any third party, except to Recipient’s employees, personnel, service providers, representatives, contractors, or affiliates that are subject to written confidentiality obligations at least as protective as those herein and that have a bona fide need to know such Confidential Information to perform under this Agreement.
In addition, the Recipient may disclose Confidential Information if required by law so long as Recipient provides the Discloser (i) prompt written notice of such requirement prior to disclosure and (ii) assistance in obtaining an order to protect any Confidential Information from public disclosure, if applicable.
10. Personal Data.
Where Notabene processes, on behalf of End User, End User Data that are "personal data" or "personal information," Notabene qualifies as a processor under applicable data protection laws, and the Data Processing Agreement at https://notabene.id/agreements/dpa applies. Where Notabene is a controller of End User Data, Notabene’s privacy policy at https://notabene.id/privacy-policy applies.
11. General
a. Governing Law and Jurisdiction. This Agreement will be governed by and construed under the laws of the State of New York in the United States without regard to any conflicts of law provisions. The parties unconditionally consent to resolve all disputes exclusively in a competent federal or state court in Kings County, New York, in the United States.
b. Equitable Relief. End User and Notabene acknowledge that a breach of any confidentiality or proprietary rights provision of this Agreement would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law. In such event, the other party will have the right to seek equitable relief or remedies, without posting a bond or other security, provided that such relief or remedies are not exclusive.
c. Force Majeure. Neither party will be responsible for any failure or delay in the performance of its obligations under this Agreement due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials, or supplies, failure or degradation of internet service or other telecommunication services, network intrusions or denial-of-service attacks, pandemics, epidemics, public health emergencies, governmental orders and acts (including travel restrictions and quarantines), material legal changes, war, terrorism, riots, or acts of God.
d. Waiver. No failure or delay in enforcing any term or right or exercising any option in this Agreement will be deemed a waiver, unless a waiver is in writing and signed by the grantor.
e. Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, that provision will not affect the validity, legality, or enforceability of the remaining provisions of this Agreement which will remain in full force and effect.
f. Assignment. End User may not assign its rights or delegate its obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of Notabene. Any attempted assignment or delegation without such consent will be null and void. Notabene may freely assign its rights or delegate its obligations, either in whole or in part, whether by operation of law or otherwise, without any prior written consent of End User. The rights and liabilities of the parties under this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns. For the purpose of this paragraph, a change of control, merger, acquisition, or sale of all or substantially all of a party’s business and assets shall constitute an assignment.
g. Entire Agreement. This Agreement, including any documents linked herein, is the complete agreement between you and Notabene regarding the use of the Services and Documentation.
h. Changes to Agreement. Notabene may modify this Agreement from time to time by posting a revised version at https://notabene.id/agreements/eula-reseller or another URL designated by Notabene. Unless otherwise stated in the revised Agreement, modifications will become effective upon posting, provided that material modifications will apply to End User no earlier than thirty (30) days after posting. End User’s continued access to or use of the Services after the effective date of the revised Agreement constitutes acceptance of the revised Agreement. If End User objects to the revised Agreement, End User’s sole and exclusive remedy is to stop using the Services.