Main Services Agreement
This Main Services Agreement (“Agreement”) governs Customer’s use of the Services provided by Notabene, Inc. or Notabene ID GmbH, as stated in an applicable Order Form (“Notabene”), and is effective between Customer and Notabene as of the date that Customer accepts this Agreement by (1) executing an Order Form that references or incorporates this Agreement or (2) clicking a box indicating acceptance (“Effective Date”). Under this Agreement, Notabene gives Customer access to the Services, and Customer accesses and uses these Services. This Agreement was last updated on July 14, 2025.
1. ORDER FORM
1.1. Services. The “Services” are Notabene’s software-based services made available through Notabene’s platform. The Services include integrations with “Integrated Products,” which are third-party services that are usable on Notabene’s platform, so long as Customer separately pays the provider of these third-party services for their use.
1.2. Ordering Services. Customer executes an “Order Form” to order certain of these Services at agreed upon prices. Upon mutual agreement of the Parties, Order Forms may be upgraded or increased (for example, in terms of packages or price) at any time by entering into a new Order Form, but Order Forms may not be canceled without a new Order Form in effect.
1.3. Agreement. The terms of this Agreement are incorporated into each applicable Order Form as if fully set forth therein.
1.4. Binding Authority. The individual accepting or signing this Agreement for Customer represents that this individual has the authority to bind Customer and its Affiliated Entities, if any, to this Agreement. “Affiliates” are any entities that directly or indirectly control, are controlled by, or are under common control with the subject entity. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Affiliated Entities” are Affiliates of Customer that are set forth as an “Included Entity” or as “Additional Entities” (or similar language) in an applicable Order Form.
1.5. User Information. “Documentation” includes the security and other information available to Customer at https://trust.notabene.id/, as well as other technical materials related to the Services which Notabene makes available to Customer, as updated from time to time.
1.6. Order of Precedence. In the event of any conflict or inconsistency among the following, the order of precedence is, first, the applicable Order Form, then this Agreement, and lastly the Documentation.
2. SERVICES
2.1. Customer License. In consideration for Customer’s payment of Fees, and subject to the terms of this Agreement, Notabene hereby grants Customer and its Affiliated Entities (if any) a limited, non-exclusive, non-sublicensable, non-transferable (except for permitted assignees) right to access and use the Services (including the Integrated Products, provided that Customer pays for them separately) during the Term (defined below) and in the jurisdictions that pertain to an applicable Order Form, solely for Customer’s internal business purposes and in accordance with the terms of an applicable Order Form (collectively, the “Purpose”).
2.2. Provision of Services. Notabene will comply with the Service Level Agreement at https://notabene.id/agreements/service-level-agreement (“SLA”), as updated from time to time. The sole remedy for violation of this Section 2.2 is as stated in, and in accordance with, the “Termination” section of the SLA.
2.3. Users. An “Authorized User” is an employee or contractor whom Customer or any Affiliated Entities have authorized to use the Services. Authorized Users will be subject to written confidentiality obligations that are at least as protective as those herein, and contractors may use the Services only on a need-to-know basis. Customer will not allow anyone other than Authorized Users to access or use the Services. Each Authorized User will use the Services solely for the Purpose and in accordance with Customer’s license grant and will comply with the terms of this Agreement and the applicable Order Form. Customer is fully liable for any Authorized User’s breach or violation of anything in the previous sentence and for any Authorized User’s acts or omissions in connection with their access or use of the Services. Customer will secure user names, passwords, hardware, and software that are used to access the Services in accordance with customary security protocols, and will require Authorized Users to do the same. Customer will promptly notify Notabene if Customer knows or reasonably suspects that any user name, password, and/or other means of accessing the Services has been compromised. Customer is fully liable for the acts or omissions of its Affiliated Entities, or for any breach of this Agreement by its Affiliated Entities, as if Customer had itself undertaken such acts or omissions or had itself breached this Agreement.
2.4. Use Restrictions. Customer will not at any time and will not permit anyone (including, without limitation, Affiliated Entities or Authorized Users) to, directly or indirectly: (i) use or access the Services in an unauthorized manner or beyond the scope of rights expressly granted in this Agreement, 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 to anyone or any entity or otherwise allow anyone to use the Services other than for the benefit of Customer in accordance with this Agreement; (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of a third party or that violates any applicable law, including but not limited to privacy laws; (vi) provide or use, or permit Notabene or its Affiliates to use, Customer Data 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 laws; (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 controls or other protection mechanism 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 software routine or hardware components designed to permit unauthorized access or to disable, erase, or harm software, hardware, or data; or (x) use the Services, Documentation, or any other Notabene Confidential Information for benchmarking or competitive analysis for competitive or related products or services, or to develop, commercialize, license or sell any product, service, or technology that could, directly or indirectly, compete with the Services. For clarity, the foregoing also restricts the use of the Integrated Products to the extent applicable. Any use of the Services in breach of this Section 2.4 may result in Notabene’s immediate suspension of the Services (upon Notabene’s written notice, which is permitted by email), provided that Notabene reserves all other remedies available to it under this Agreement.
2.5. Additional Responsibilities. When using any Integrated Product, Customer is responsible for adhering to the applicable terms of service imposed by such Integrated Product’s third-party provider, in addition to Section 2.4 above as applicable. Customer is also responsible for paying such third-party provider the full amount of subscription fees or other charges due for use of an Integrated Product. Notabene disclaims all liability in the event that Customer does not fulfill the foregoing responsibilities.
2.6. Feedback. From time to time, Customer or its Affiliated Entities or its or their employees, contractors, or representatives may provide Notabene with suggestions, comments, feedback, or the like with regard to the Services (collectively, “Feedback”). Customer hereby grants Notabene a perpetual, irrevocable, sublicensable, royalty-free, and fully-paid up license to use and exploit all Feedback in connection with Notabene’s business purposes, including, without limitation, the testing, development, maintenance, and improvement of the Services.
3. CUSTOMER DATA
3.1. Definition. “Customer Data” means all information, data, content, and other materials, in any form or medium, that is submitted, posted, collected, transmitted, or otherwise provided by or on behalf of Customer or its Affiliated Entities through the Services or to Notabene in connection with Customer’s or its Affiliated Entities’ use of the Services, but excluding Aggregated Data (defined below) and any other information, data, data models, content, or materials that Notabene owns or controls and makes available in connection with the Services.
3.2. Notabene License. Customer hereby grants Notabene a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Data solely for the purpose of hosting, operating, improving, and providing the Services and Notabene’s related products, services, and technologies during the Term.
3.3. Warranties. Customer represents and warrants that (i) it has obtained all necessary rights, authority, and licenses required for Notabene to access and use the Customer Data to provide the Services or as otherwise contemplated by this Agreement, and (ii) Notabene’s use of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party. If Customer fails to obtain such rights, authority, or license at any time during the Term, Customer shall promptly inform Notabene.
3.4. Processed Data. Where Notabene processes, on behalf of Customer, Customer Data that are “personal data” or “personal information” that are not the names or professional contact details of Customer’s representatives, Notabene qualifies as a Customer processor under applicable data protection laws, and the Data Processing Agreement at notabene.id/agreements/dpa applies.
3.5. Aggregated Data. Notwithstanding anything herein, Notabene may collect, store, compile, use, analyze, disclose, or distribute any anonymized data that is derived or aggregated in de-identified form from (i) any Customer Data, (ii) any use of the Services by Customer, its Affiliated Entities, and/or its Authorized Users, 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.
4. OWNERSHIP
4.1. Rights of Each Party. Subject to the rights expressly granted in this Agreement, Customer solely owns the Customer Data and reserves all rights, title and, interest in and to the Customer Data. Subject to the rights expressly granted in this Agreement, Notabene solely owns the Notabene IP (defined below) and reserves all rights, title, and interest in and to the Notabene IP. No intellectual property rights or other proprietary rights are granted (whether by implication, estoppel, exhaustion, or otherwise) other than as expressly set forth in this Agreement.
4.2. Definition. “Notabene IP” means the Services (excluding the Integrated Products), Documentation, Aggregated Data, and Notabene’s APIs; the software, websites, programs, interfaces, and applications used for the Services, and the user experience and look and feel of the foregoing; the source code, algorithms, technology, data, databases, tools, processes, methods, and materials used to provide the Services; all improvements, modifications or enhancements to, or derivative works of, any of the foregoing (regardless of inventorship or authorship); and all intellectual or proprietary property rights in and to any of the foregoing, recognized in any country or jurisdiction in the world and however designated, whether arising by operation of law, contract, license, or otherwise, including 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.
5. FEES AND PAYMENT
5.1. Fees. Customer will pay Notabene the amount set forth as “Total Fees” in any applicable Order Form (“Fees”) in accordance with the terms of such Order Form. Customer is obligated to pay all Fees, for the Term, regardless of billing frequency, payment terms, or any term in this Agreement or otherwise, and Notabene reserves the right to enforce this obligation. Unless otherwise stated in an applicable Order Form, Notabene may update the Fees or applicable charges at the end of an Order Term or any Renewal Term to Notabene’s then-current rates for the Services. The updated Fees will be reflected in Customer’s next applicable invoice.
5.2. Payments. Notabene will issue invoices to Customer (by email, digitally, or otherwise) according to the billing frequency specified in an applicable Order Form (if none is specified, then annually in advance). Customer will pay all Fees and other charges (including, but not limited to, transaction overages) set forth on any invoice within thirty (30) days of the invoice’s date of issuance (unless stated otherwise in an Order Form), subject to Section 5.4 below. Payments due to Notabene under this Agreement will be made in the currency specified in an Order Form (if none is specified, then U.S. dollars) by electronic transfer of immediately available funds to an account designated by Notabene or such other payment method mutually agreed by the Parties. Except as expressly provided herein, all payments made are non-refundable. Without limiting the foregoing, in the event that Customer is charged transaction fees, Customer will pay an additional amount, so that Notabene receives the due Fees in full, as if no transaction fees were charged.
5.3. Failure to Pay. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month (or, if lower, the maximum rate permitted by applicable law), and Notabene may suspend Services until all payments due are made in full. Notabene reserves the right to claim reimbursement from Customer for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
5.4. Disputes. An invoice will be final if it is not disputed within fifteen (15) days of its date of issuance. Subject to the foregoing sentence, in the event that Customer timely disputes an invoice or payment in good faith and provides Notabene with written notice and an explanation for the dispute, Notabene will temporarily suspend the remedies in Section 5.3 for thirty (30) days only, during which the Parties will discuss in good faith to endeavor to reach resolution, and after which, if not resolved, Notabene may pursue any available remedies, including but not limited to those in Section 5.3.
5.5. Taxes. Customer is responsible for paying all taxes and duties of any kind, whether to Notabene or to a tax authority, on amounts payable by Customer to Notabene under this Agreement, other than any taxes imposed on Notabene’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Notabene, Customer will pay an additional amount, so that Notabene receives the due Fees in full, as if there were no withholding or deduction.
6. CONFIDENTIAL INFORMATION
6.1. Definition. “Confidential Information” means any information that one Party (the “Discloser”) provides to the other Party (“Recipient”) in connection with this Agreement, whether orally or in writing (including digital or electronic means), that is designated as confidential or that reasonably should be considered confidential given the nature of the information and/or the circumstances of disclosure. The Notabene IP, the Documentation, and Order Forms (including but not limited to pricing) are Confidential Information. However, Confidential Information will not include any information that: (i) is or became public without any act or omission by the Recipient; (ii) was lawfully known by the Recipient without any restriction or confidentiality obligation; (iii) was rightfully disclosed to the Recipient by a third party that did not have a confidentiality obligation; or (iv) was independently developed by the Recipient without use of or access to Discloser’s Confidential Information.
6.2. Obligations. 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. Except with the Discloser’s prior written consent, the Recipient will use Confidential Information solely as necessary to perform its obligations or exercise its rights under this Agreement. The Recipient will promptly notify the Discloser if the Recipient discovers any misuse or misappropriation of Confidential Information.
6.3. Exceptions. The Recipient will not disclose, or cause to be disclosed, any of the Discloser’s Confidential Information to any third party, except: (i) to employees, service providers, representatives, or contractors of the Recipient or its Affiliates (for Customer, its Affiliated Entities only) who are subject to written confidentiality obligations that are at least as protective as those herein and have a bona fide need to know such Confidential Information to perform under this Agreement; (ii) if the Recipient is required to disclose Confidential Information by law, a court order, subpoena, or a competent governmental authority, subject to the Recipient providing to the Discloser (if legally permitted) prompt written notice to allow the Recipient to seek protective measures or other remedies to prevent or limit disclosure, at the Discloser’s sole expense; or (iii) as otherwise provided in this Agreement. The Recipient is fully liable for any breach or violation of Section 6 of this Agreement by its Representatives (whether by act or omission). Notabene may disclose the content of this Agreement and any applicable Order Form to the third-party provider of an Integrated Product that is subject to written confidentiality obligations that are at least as protective as those herein, but only to the extent necessary to perform Notabene’s obligations pursuant to this Agreement.
6.4. Term of Non-Disclosure. Each Party’s non-disclosure obligations for Confidential Information are effective for one year following the Term or for a total of three (3) years, whichever is longer. However, for Confidential Information that is a trade secret under applicable law, non-disclosure obligations last for as long as the Confidential Information remains subject to trade secret protection.
6.5. Due Diligence. Notwithstanding anything herein, the content and existence of this Agreement may be disclosed to a Party’s advisors and attorneys, and to actual or potential acquirers, investors, or other sources of funding, and their respective advisors and attorneys, for due diligence purposes.
7. WARRANTIES
7.1. Notabene Warranties. Notabene warrants that, during the Term, Notabene will not materially decrease the overall security of the Services and will not materially decrease the overall functionality of the Services (excluding the Integrated Products). For any breach of a warranty in this Section 7.1, the sole remedy is termination in accordance with Section 11 below (except as otherwise provided in this Agreement or any applicable linked documents).
7.2. Mutual Warranties. Each Party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement are within that Party’s corporate powers, have been duly authorized, and have resulted in a valid and binding agreement by that Party; and (iii) each Party complies, and will continue to comply, with all applicable laws and regulations, including but not limited to those pertaining to privacy and export compliance.
8. INDEMNIFICATION
8.1. Notabene Indemnity. Notabene will defend Customer and its employees, service providers, directors, agents, and Affiliated Entities against any action, suit, or proceeding brought by a third party (“Claim”) alleging that the Services, excluding the Integrated Products, infringe or misappropriate such third party’s intellectual property rights, and Notabene will indemnify Customer from any damages, attorneys’ fees, and costs finally awarded against Customer, or for amounts paid by Customer under a settlement, resulting from such Claim. However, the foregoing defense and indemnity will not apply to a Claim arising out of or relating to: (i) Customer’s misuse or unauthorized use of the Services, (ii) Customer’s breach of this Agreement, negligence, willful misconduct, or fraud; (iii) any Customer Data or any Integrated Products; (iv) Customer’s failure to use any enhancements, modifications, or updates to the Services that Notabene provided to Customer and notified Customer to implement; (v) modifications to the Services by anyone other than Notabene; or (vi) combinations of the Services with software, data, or materials not provided by Notabene.
8.2. IP Remedies. If Notabene reasonably believes the Services (or any component thereof) could infringe any third party’s intellectual property rights, Notabene may, in its sole discretion and at its sole expense, (i) modify or replace the Services, or any component or part of the Services, so they are no longer claimed to be infringing; (ii) obtain the right for Customer to continue use of the Services in accordance with this Agreement; or (iii) terminate the applicable Order Form and/or this Agreement by providing written notice to Customer. In the event of such termination, Notabene will refund to Customer, on a pro-rated basis, any Fees that have been pre-paid for Services that will not be provided due to the termination. Notwithstanding the foregoing, with respect to the Integrated Products, Notabene disclaims all liability associated with any actual or potential infringement of a third party’s intellectual property rights. Sections 8.1 and 8.2 state Customer’s sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Services.
8.3. Customer Indemnity. Customer will defend Notabene and its employees, service providers, directors, agents, and Affiliates against any Claim arising out of or relating to (i) any misuse or unauthorized or illegal use of the Services (including but not limited to a violation of this Agreement, an Order Form, or the Documentation) by Customer, its Authorized User(s), or an Affiliated Entity, or (ii) any Customer Data or the use of Customer Data with the Services (unless such Claim results directly from Notabene’s willful misconduct, fraud, or unauthorized use of such Customer Data under this Agreement), including, but not limited to, a violation of applicable law, or an infringement, misappropriation, or violation of a third party’s intellectual property rights, or privacy or other rights, and Customer will indemnify Notabene from any damages, attorneys’ fees, and costs finally awarded against Notabene, or for amounts paid by Notabene under a settlement, resulting from such Claim.
8.4. Procedures. For Sections 8.1 and 8.3, the Party seeking defense or indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the Claim for which defense or indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement of such Claim. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible; provided that the Indemnifying Party may not settle any Claim without the Indemnified Party's prior written approval (unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party's business). If the Indemnifying Party entirely refuses to defend the Indemnified Party, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
9. DISCLAIMER
9.1. General. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE NOTABENE IP AND THE SERVICES, INCLUDING THE INTEGRATED PRODUCTS, ARE PROVIDED “AS IS” AND AT CUSTOMER’S AND ITS AFFILIATED ENTITIES’ SOLE RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NOTABENE DISCLAIMS, TO THE MAXIMUM EXTENT THAT APPLICABLE LAW PERMITS, ALL WARRANTIES AND REPRESENTATIONS, EXPRESSED 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. EXCEPT AS EXPRESSLY PROVIDED HEREIN, 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 CUSTOMER, ITS AFFILIATED ENTITIES, OR ITS AUTHORIZED USERS MAY HAVE UNDER APPLICABLE LAW.
9.2. Integrated Products. Notwithstanding anything herein, Notabene may discontinue access to any Integrated Product at any time in Notabene’s sole discretion, and Notabene disclaims any and all responsibility, without exception and to the maximum extent that applicable law permits, for the performance or accuracy of the Integrated Products.
10. LIMITATIONS OF LIABILITY
10.1. Exclusion of Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES (FOR CUSTOMER, ITS AFFILIATED ENTITIES ONLY) HAVE ANY LIABILITY 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, WHETHER SUCH LIABILITY ARISES FROM CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR FROM ANY OTHER THEORY OF LIABILITY, AND EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS IN ITS ESSENTIAL PURPOSE.
10.2. Total Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES (FOR CUSTOMER, ITS AFFILIATED ENTITIES ONLY) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES (AND TRANSACTION OVERAGES) PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATED ENTITIES, OR OTHERWISE DUE, UNDER THIS AGREEMENT OR ANY APPLICABLE ORDER FORM FOR THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, WHETHER SUCH LIABILITY ARISES FROM CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR FROM ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THIS LOSS OR DAMAGE; BUT NOTHING IN THIS SECTION 10 WILL LIMIT CUSTOMER'S AND ITS AFFILIATED ENTITIES’ PAYMENT OBLIGATIONS UNDER SECTION 5 (“FEES”) ABOVE.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date that the Customer first accepts it and continues until Customer no longer has any Order Forms that are in effect (the “Term”).
11.2. Term of Order Forms. The “Order Term” is as specified in an applicable Order Form. Except as otherwise specified in an applicable Order Form, at the end of the Order Term, an Order Form automatically renews for successive one-year terms (or for a different term length as specified in an applicable Order Form) (each, a “Renewal Term”), unless (i) either Party provides sixty (60) days’ prior written notice to terminate the Order Form at the end of the Order Term or any Renewal Term, or (ii) Customer signs a new Order Form with increased total fees and/or upgraded packages or terms prior to the end of the Order Term or any Renewal Term, at which point the new Order Form is in effect and subject to the terms herein.
11.3. Termination. Notwithstanding the foregoing, either Party may terminate this Agreement only (i) upon material breach by the other Party which is not cured within thirty (30) days of the receipt of written notice, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. If a Party terminates this Agreement pursuant to this Section 11.3, then any Order Form in effect will terminate.
11.4. Refund to Customer. If Customer terminates this Agreement pursuant to Section 11.3 above, Notabene will refund to Customer, on a pro-rated basis, any Fees that have been pre-paid for Services that will not be provided due to the termination. Notwithstanding the foregoing, no expiration or termination of this Agreement will relieve Customer of its obligations under Section 5 (“Fees”) for payments that are payable or due for the period prior to expiration or the effective date of termination.
11.5. Return or Destroy Confidential Information. Within thirty (30) days of the expiration or effective termination date of this Agreement, each Party will destroy (or will return, if the other Party so requests) all of the other Party’s Confidential Information in the possession or control of the first Party. Any such destruction will include the permanent deletion of Confidential Information from storage devices or other hosting environments, consistent with customary industry practices. Upon request, each Party will certify in writing that the Confidential Information has been destroyed (or returned).
11.6. Survival. Provisions of this Agreement which are reasonably intended to survive termination of this Agreement, or that are needed subsequent to termination, will survive termination.
12. PUBLICITY
Unless explicitly advised in writing otherwise, each Party shall have the right to publicly announce the existence of the business relationship between the Parties. Unless explicitly advised in writing otherwise, Notabene may, during the Term, use Customer’s name, trademarks, and logos on Notabene’s website and in its marketing materials to identify Customer as Notabene’s customer. If Customer provides any usage guidelines directly to Notabene, Notabene will use commercially reasonable efforts to follow them.
13. GENERAL
13.1. Governing Law and Jurisdiction. This Agreement will be governed by and construed under the laws of the State of New York without regard to any conflicts of law provisions, and 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. Notwithstanding the foregoing, if Customer is domiciled in the European Economic Area, the United Kingdom, or Switzerland, this Agreement will be governed by and construed under the laws of Switzerland without regard to any conflicts of law provisions, and the Parties unconditionally consent to resolve all disputes exclusively in a competent federal or cantonal court in the Canton of Zug, Switzerland.
13.2. Regulatory Compliance. The European Regulatory Compliance Exhibit at notabene.id/agreements/european-union-regulatory-compliance-exhibit will apply to (i) to Customer if it is domiciled in the European Economic Area, or in Switzerland, San Marino, Monaco, or Vatican City and/or (ii) to any of Customer’s Affiliated Entities that are domiciled in the European Economic Area, or in Switzerland, San Marino, Monaco, or Vatican City. The Singapore Regulatory Compliance Exhibit at notabene.id/agreements/sg_regs will apply to Customer if it is domiciled in Singapore and regulated by the Monetary Authority of Singapore and/or to any of Customer’s Affiliated Entities that is/are domiciled in Singapore and regulated by the Monetary Authority of Singapore. These exhibits will not apply (x) to any companies or entities that do not meet the foregoing requirements or (y) in the event that no payment is or will be made, under an Order Form, for such companies or entities to use the Services.
13.3. Local Law. In the event that either Party requires any exhibit, appendix, or amendment to this Agreement in order to comply with the laws of any applicable jurisdiction, such Party will notify the other Party in writing, and, upon this notice, the Parties agree to negotiate such exhibit, appendix, or amendment in good faith. The Parties further agree that this Agreement and/or any Order Form may be accepted or executed with the intent of the Parties to negotiate such an exhibit, appendix, or amendment in good faith subsequent to this acceptance or execution.
13.4. Assignment. Neither Party may assign or transfer this Agreement or any Order Form without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement or any Order Form without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement or any Order Form to (i) an Affiliate (for Customer, only to an Affiliated Entity) upon at least thirty (30) days’ prior written notice or (ii) to a third party that succeeds to all or substantially all of the assigning Party’s business and assets, whether by sale, merger, acquisition, operation of law, or otherwise. Subject to the foregoing, this Agreement is binding upon, and will inure to the benefit of, solely the Parties and their respective successors and permitted assigns, and no other rights will be implied or construed to any other entity or third party.
13.5. Notices. Any notice required under this Agreement (or any Order Form) will be via email (pdf files are also permitted) with a request for a responsive email. The notice will be deemed effective when the sender receives a responsive email that the notice has been received; provided that, if no response is received after three (3) business days, then another email shall be sent, and if no response is received after another three (3) business days, then the notice will be deemed effective. If, at any time, the sender receives an email stating that the notice has bounced or not been transmitted, then the notice shall be sent to a second email address (or a third and so on, as necessary), and the process above shall be repeated until the notice is sent without bouncing. Notabene will be notified at [email protected] (or, if necessary, at [email protected] or [email protected]), and Customer’s email addresses are as provided in an applicable Order Form or as otherwise communicated to Notabene.
13.6. Equitable Relief. A Party’s breach or threatened breach of any obligations under Section 6 (“Confidential Information”) 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.
13.7. Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) 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 changes in law, war, terrorism, riots, or acts of God.
13.8. Waiver. No failure or delay in enforcing any term or right or exercising any option in this Agreement or any Order Form will be deemed a waiver, unless a waiver is in writing and signed by the grantor.
13.9. Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement shall be construed to establish any partnership, joint venture, or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other, except with the other Party’s prior written consent.
13.10. 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.
13.11. Headings. The headings in this Agreement are for convenience only and will not affect the meaning or interpretation of this Agreement.
13.12. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
13.13. Entire Agreement. This Agreement, including all documents linked herein, constitutes the complete and exclusive agreement between the parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications, and understandings (including, but not limited to, any prior non-disclosure agreements), both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
13.14. Changes to this Agreement. Notabene may modify this Agreement from time to time by posting a revised version at notabene.id/agreements/main-services-agreement, which modifications will become effective immediately upon the start of the Customer’s next Renewal Term following the version’s posting (“Renewal Date”) (except that if the version is posted within thirty (30) days of the Renewal Date, then the revised Agreement will become effective one year from the Renewal Date); provided that Customer may elect, at its discretion, to accept the revised version at any time after it is posted. If Customer objects to the revised Agreement, as its sole and exclusive remedy, Customer may choose not to renew in accordance with Section 11.3.