This Agreement provides the terms under which Notabene provides access to its Subscription Services to Customer, and Customer will access and use such Subscription Services. This Agreement includes and incorporates the following exhibits:
Exhibit A – Order Form
Exhibit B - Terms and Conditions
Exhibit C - Definitions
IN WITNESS WHEREOF, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties have executed this Agreement as of the Effective Date.
EXHIBIT A - Order Form
The primary purpose of this subscription is to allow Customer to respond to incoming Travel Rule transactions from Notabene customer VASPs. It allows unlimited incoming transactions, and a limited number of outgoing transactions.
Services: The primary services provided are:
- Transaction Compliance platform
- Compliance Dashboard
- Travel Rule Transaction Switch with support for TR:Now
- Backend API
- Compliance Rule Engine
- Unlimited incoming transaction volume from Notabene customers
- Maximum monthly outgoing volume per month in USD: $10,000
Annual Cost: FREE
EXHIBIT B – TERMS AND CONDITIONS
1. SUBSCRIPTION SERVICES; ACCESS AND USE.
a) Subscription Services. Subject to the terms and conditions of this Agreement, Notabene hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 12(f)) right to Use the Subscription Services during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Licensed Volume.
b) Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Notabene account. This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Notabene account.
c) Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Subscription 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 Subscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Subscription Services to any other Person, or otherwise allow any Person to use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Notabene for use expressly for such purposes; or (viii) use the Subscription Services, Documentation or any other Notabene Confidential Information for benchmarking or competitive analysis with respect to 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 Subscription Services.
d) Authorized Users. Customer will not allow any Person other than Authorized Users to access or use the Subscription Services. Customer may permit Authorized Users to Use the Subscription Services, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their use of the Subscription Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Notabene if Customer knows or reasonably suspects that any user name and/or password has been compromised.
e) Reservation of Rights. Subject to the limited rights expressly granted hereunder, Notabene reserves and, as between the Parties will solely own, the Notabene IP and all rights, title and interest in and to the Notabene IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
f) Feedback. From time to time Customer or its employees, contractors, or representatives may provide Notabene with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”). Customer hereby grants Notabene a perpetual, irrevocable, royalty-free and fully-paid up license (with the right to sublicense) to use and exploit all Feedback in connection with Notabene’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.
2. FEES AND PAYMENT.
a) Fees. Customer will pay Notabene the non-refundable fees set forth in the Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. If you add additional features or exceed limits as specified in the order form, any additional items will be added to either a new invoice or the next regular invoice. Notabene reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon sixty (60) days’ prior notice to Customer (which may be sent by email).
b) Payments. Payments due to Notabene under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Notabene or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. 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 highest rate permitted by applicable law and Notabene may suspend Services until all payments are made in full. Customer will reimburse Notabene for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
c) Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Notabene hereunder, 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 hereunder, Customer will pay an additional amount, so that Notabene receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
3. CONFIDENTIAL INFORMATION.
a) As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Subscription Services and the Documentation will be deemed Confidential Information of Notabene. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or
iv. are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
b) The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Notabene may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
c) Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
d) The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
4. SUPPORT AND SERVICE LEVELS.
a) Support. Notabene will provide Customer with technical support for the Subscription Services in accordance with the support terms set forth in Exhibit D.
b) Service Levels. Subject to the terms and conditions of this Agreement, Notabene will use commercially reasonable efforts to make the Subscription Services available in accordance with the service levels set forth in Exhibit D. Customer acknowledges and agrees that the service levels are performance targets only and any failure of Notabene to meet any service level shall not result in any breach of this Agreement or any liability of Notabene to Customer.
5. CUSTOMER MATERIALS AND DATA.
a) Notabene acknowledges that, as between Customer and Notabene and except as set forth in Section 5(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
b) Customer hereby grants Notabene a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Subscription Services and Notabene’s other related products, services and technologies during the Term.
i. only process Personal Information in accordance with this Agreement;
ii. implement commercially reasonable technical and organizational measures designed to protect Personal Information. If Notabene becomes aware of any unauthorized access, use, or disclosure of Personal Information, it will notify Customer without undue delay. Where possible, such notice will include all available details required under applicable data protection laws for Customer to comply with its own notification obligations to regulatory authorities and affected individuals
iii. only engage subprocessors to process Personal Information where Notabene has entered into a written agreement with such subprocessors imposing data protection obligations that are consistent with this Section 5(d). Where the subprocessor fails to fulfil such obligations, Notabene shall remain fully liable to Customer for the performance of that subprocessor’s obligations in accordance with applicable data protection laws. Notabene shall notify Customer of any new subprocessors in advance and allow Customer ten (10) days to object. If Customer has legitimate objections to the appointment of any new subprocessor, the parties will work together in good faith to resolve the grounds for the objection;
iv. provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Personal Information under applicable data protection laws;
v. assist Customer in ensuring compliance with Customer’s obligations pursuant to Articles 35 and 36 of Regulation (EU) 2016/679;
vi. delete or return all Personal Information following the expiration or termination of the Agreement upon request (excluding any back-up or archival copies which shall be deleted in accordance with Notabene’s data retention schedule), except where Notabene is required to retain copies under applicable laws, in which case Notabene will isolate and protect that Personal Information from any further processing except to the extent required by applicable laws;
vii. make available to Customer all information necessary to demonstrate compliance with the obligations set forth in this Section 5.5(d) and allow for and contribute to audits, conducted by Customer or another auditor mandated by Customer by completing a data protection questionnaire of reasonable length; and
viii. use the European Commission Decision C(2010)593 Standard Contractual Clauses for Controllers to Processors (“Model Clauses”) to support the transfer of Personal Information originating in the European Economic Area, Switzerland, and/or United Kingdom, the terms of which are herein incorporated by reference. Customer and Notabene agree that: (i) the audits described in Clause 5(f) and Clause 12(2) of the Model Clauses shall be carried out in accordance with Section 5.5(d)(vii) of this Agreement; (ii) pursuant to Clause 5(h) of the Model Clauses, Notabene may engage new subprocessors in accordance with Section 5.5(d)(iii) of this Agreement; (iii) the subprocessor agreements referenced in Clause 5(j) and certification of deletion referenced in Clause 12(1) of the Model Clauses shall be provided by Notabene only upon written request; and (iv) the optional clauses are expressly not included. Each party’s acceptance of this Agreement shall be considered a signature to the Model Clauses to the extent the Model Clauses apply hereunder. If required by the laws or regulatory procedures of any jurisdiction, the parties shall execute or reexecute the Model Clauses as separate documents.
6. REPRESENTATIONS AND WARRANTIES.
Each Party hereby represents and warrants to the other Party 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 and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
a) Notabene Indemnification. Subject to Section 7(b), Notabene will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Subscription Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Notabene (including reasonable attorneys’ fees) resulting from such Claim.
b) Exclusions. Notabene’s obligations under Section 7(a) will not apply if the underlying third-party claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Notabene; (iv) modifications to the Subscription Services by anyone other than Notabene; or (v) combinations of the Subscription Services with software, data or materials not provided by Notabene.
c) IP Remedies. If Notabene reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Notabene may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue use. If Notabene determines that neither alternative is commercially practicable, Notabene may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Notabene will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 7 shall constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.
d) Customer Indemnification. Subject to Section 7(e), Customer will defend Notabene against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) use of the Subscription Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 1(b), and in each case, will indemnify and hold harmless Notabene against any damages and costs awarded against Notabene or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
e) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any claim for which the Indemnifying Party is responsible hereunder (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, products or services). The Indemnified Party may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
8. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES AND OTHER NOTABENE IP ARE PROVIDED ON AN “AS IS” BASIS, AND NOTABENE MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE NOTABENE IP, THE SUBSCRIPTION SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTABENE HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NOTABENE HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
9. LIMITATIONS OF LIABILITY.
a) Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE NOTABENE IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
b) Total Liability. EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, IN NO EVENT WILL NOTABENE’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE NOTABENE IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO NOTABENE IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT NOTABENE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
c) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 9 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN NOTABENE AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
10. TERM AND TERMINATION.
a) Term. The initial term of this Agreement (“Initial Term”) will be as set forth in the Order Form. Following the Initial Term, this Agreement will automatically renew for additional terms of the duration set forth in the Order Form (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
b) Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
c) Survival. This Section 10(c) and Sections 1(b), 1(c), 1(e), 2, 3, 5(a), 5(b), 5(c), 6, 7, 8, 9, 9(d) and 12 (in addition to Exhibit C) survive any termination or expiration of this Agreement.
d) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 1(a) will terminate; and (ii) Customer will return or destroy, at Notabene’s sole option, all Notabene Confidential Information in its possession or control, including permanent removal of such Notabene Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Notabene’s request, certify in writing to Notabene that the Notabene Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
11. PUBLICITY. Subject to the provisions of Section 3, each Party shall have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the term of Customer’s use of the Subscription Services, Notabene may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on Notabene’s website and in its marketing materials to identify Customer as Notabene’s customer, and for the purpose of providing the Subscription Services to Customer, provided that Notabene shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer’s Marks.
12. GENERAL. (a) Entire Agreement. This Agreement, including its exhibits, is 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, 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. (b) Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the Order Form or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 12(b). Such notices shall deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. (c) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver. (d) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect. (e) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the State of new York and the parties irrevocably consent to the personal jurisdiction and venue therein. (f) Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. (g) Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 3 or, in the case of Customer, Section 1(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. (h) 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, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including governmentimposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God. (i) Export Regulation. Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Subscription Services or related software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval. (j) Relationship of the Parties. The relationship between the Parties is that of 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’s behalf without the other Party’s prior written consent. (k) No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns. (l) 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.
EXHIBIT C – DEFINITIONS
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.
“Authorized User” means an employee or contractor whom Customer has authorized to use the Subscription Services.
“Customer Materials” 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 through the Subscription Services or to Notabene in connection with Customer’s use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Notabene and made available through or in connection with the Subscription Services.
“Documentation” means the user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Notabene to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Customer.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Licensed Volume” means the limits, volume or other measurement or conditions of permitted use for the applicable Subscription Service as set forth in the Order Form.
“Notabene IP” means the Subscription Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services, Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“Order Form” means a mutually executed order form or other mutually agreed upon ordering document, which references this Agreement and sets forth the applicable Subscription Services to be provided by Notabene.
“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
“Subscription Services” means the software-based services made available through Notabene’s platform, as more particularly described or identified in the Order Form.
“Use” means to use and access the Subscription Services in accordance with this Agreement and the Documentation.