TERMS OF SERVICE
(Amended Feb 14, 2024)
These Terms of Service (these “Terms") constitute an appendix to the Service Agreement entered into between the Parties and shall govern the delivery of the Services under the Service Agreement.
In the event of any conflicting information in the Agreement, the Service Agreement shall take precedence over these Terms.
Capitalized terms utilized in these Terms and not defined herein shall have the meaning set forth in the broader Agreement.
As used herein, the term, "you" and "your" refers to the individual or entity that is using the Services, as defined as Subscriber in the Agreement, and "we" and "our" refers to Noan Technology Inc doing business as Noan
By accessing or using the Services:
● you accept or agree to these Terms; and
● you represent and warrant that you have the right, authority, and capacity to enter into the Agreement on behalf of Subscriber.
1 General
If you register for an account with Noan’s Services, the applicable provisions of these Terms will also govern that account.
2 Account
All accounts are provided “as is” and “as available” without any warranty of any kind. Noan Technology disclaims all obligation and liability under the Agreement (including liability otherwise provided for under Section 13 (Limitation of Liability) for any harm or damage arising out of or in connection with use of an account, including any obligation or liability with respect to Subscriber data. Any configurations or Subscriber data entered into an account, and any customizations made to an account by or for Subscriber may be permanently lost if the pilot account is suspended, terminated, or discontinued.
3 Noan Technology's Obligations
3.1 Services
Noan Technology shall provide the Services agreed upon in the Agreement to the Subscriber in accordance with the terms and conditions as set forth in the Agreement.
3.2 Compliance with Laws
Noan Technology will comply with all laws and governmental regulations applicable to the Services.
3.3 Personnel and Performance
Noan Technology may engage subcontractors for the performance of the Services and other obligations under the Agreement. Noan Technology will be responsible for the performance of its personnel (including employees and contractors) and their compliance with the Agreement. Noan Technology enters into the Agreement on behalf of itself and its Affiliates. An “Affiliate” of a Party is any entity
(a) that the Party Controls;
(b) that the Party is Controlled by; or
(c) with which the Party is under common Control, where “Control” means direct or indirect control of fifty percent (50%) or more of an entity’s voting interests (including by ownership).
3.4 Security Measures
Noan Technology will maintain administrative, physical, and technical safeguards for the security and integrity of the Services (the "Security Measures") consistent with industry-standard practices. Noan Technology will store, process, transmit and disclose electronic data and configurations submitted to the Services at the direction of or on behalf of Subscriber ("Subscriber Data") only according to the Agreement. The Services, independent of Subscriber Data, will not transmit code, files, scripts, agents, or programs intended to do harm, including, viruses, worms, time bombs, and Trojan horses ("Malicious Code"). Noan Technology will process personal data in accordance with the instructions set out in the Data Processing Agreement.
4 Data
Notwithstanding anything to the contrary herein and to the extent such activities do not infringe Subscriber’s pre-existing intellectual property rights, Noan Technology shall always be free to make use of any general know-how acquired, general principles learned, and general experience gained in connection with providing the Services.
5 Subscriber’s Obligations
5.1 Subscriber Data
Subscriber agrees to be solely responsible for the content, electronic data, and configurations (“Subscriber Data”) sent or transmitted by Subscriber, or displayed or uploaded by Subscriber, or backed up by Noan Technology, in using the Services and for compliance with all Laws pertaining to the Subscriber Data, including, but not limited to, Laws requiring Subscriber to obtain the consent of a third-party to use the Subscriber Data and to provide appropriate notices of third-party rights. Subscriber represents and warrants that Subscriber has the right to upload the Subscriber Data to the Services and that such use does not violate or infringe on any rights of any third-party. Under no circumstances will Noan Technology be liable in any way for any
(a) Subscriber Data that is transmitted or viewed while using the Services,
(b) errors or omissions in the Subscriber Data, or
(c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Subscriber Data. Although Noan Technology is not responsible for any Subscriber Data, Noan Technology may delete any Subscriber Data, at any time without notice to Subscriber, if Noan Technology becomes aware that it violates any provision of this Agreement, or any law. Subscriber retains copyright and any other rights Subscriber already holds in Subscriber Data which Subscriber submits, posts or displays on or through, the Services.
5.2 Personnel and Performance
Subscriber will be responsible for the performance of its personnel (including employees and contractors) in compliance with the Agreement. Subscriber enters into the Agreement on behalf of its Affiliates that make use of the Services.
5.3 Non-Noan Technology Services
Subscriber may choose to use services not provided by Noan Technology ("Non-Noan Technology Services") with the Services and in doing so grants Noan Technology permission to interoperate with the Non-Noan Technology Services as directed by Subscriber or the Non-Noan Technology Services.
Unless specified in the Agreement:
(a) Noan Technology does not warrant or support Non-Noan Technology Services unless explicitly stated otherwise,
(b) as between Noan Technology and Subscriber, Subscriber assumes all responsibility for the Non-Noan Technology Services and any disclosure, modification, or deletion of Subscriber Data by the Non-Noan Technology Services and
(c) Noan Technology shall have no liability for, and Subscriber is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to any unavailability of the Non-Noan Technology Services or any change in the ability of Noan Technology to interoperate with the Non-Noan Technology Services.
5.4 Responsibilities
In order for Noan Technology to be able to perform its obligations under the Agreement, Subscriber is responsible for the following:
a) Subscriber is responsible for the communication between Subscriber and the point or points where Noan Technology connects the Services to Subscriber’s end points. Subscriber is also responsible for ensuring that it has the equipment and software that is required for the use of the Services.
b) Subscriber is responsible for faults and defects in Subscriber's software and the subsequent non-availability of the Services.
c) Subscriber shall ensure that
(i) Subscriber’s Data is free of viruses, trojans, worms or other harmful software or code;
(ii) Subscriber’s Data are in the agreed format; and
(iii) that Subscriber’s Data cannot, in any other way, damage or interfere with Noan Technology system or the Services.
d) Subscriber shall ensure that log-in information, security methods, and other information provided by Noan Technology for access to the Services are handled confidentially in accordance with Section 8 (Confidentiality).
Subscriber shall notify Noan Technology immediately in the event of unauthorized access to information in accordance with this clause.
e) Subscriber shall, and shall ensure that all users also will, follow all applicable laws, guidelines, and recommendations for the Services.
f) Shall not use the Services to store, transmit or display Subscriber Data for fraudulent purposes or in violation of applicable laws and governmental regulations;
g) Shall not interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein.
h) Shall not permit direct or indirect access to or use the Services in a way that circumvents a usage or capacity limit of the Services or use the Services to access or use any of Noan Technology' intellectual property except as permitted under the Agreement. Terms of Service
i) shall not sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Services except as integrated with its own offerings that provide additional functionality to its end users;
j) Subject to Section 9.2 (Noan platform), except as permitted by applicable laws or governmental regulations, shall not reverse engineer, decompile, translate, disassemble or otherwise attempt to extract any or all of the source code of the Services.
k) Shall not access the Services to develop a competitive product or service.
5.5 Subscriber’s use of the Services
a) Subscriber shall specify the users that are authorized to use the Services by inviting them to the Service. If a person is no longer authorized to use the Services, Subscriber shall immediately remove their access. Subscriber is responsible for all users' use of the Services.
b) Subscriber is required to follow any written instructions from time to time provided by Noan Technology for use of the Services.
c) Subscriber’s users shall accept the Terms of Use and to have confirmed that they have read the Privacy Notice and Cookie Notice.
5.6 Service Notices
If Noan Technology becomes aware that Subscriber has violated Subscriber’s obligations under this Section 5 (Subscriber’s Obligations), Noan Technology will notify Subscriber by email (the "Service Notice") and request Subscriber to take reasonably appropriate action, including ceasing problematic usage or removing applicable Subscriber Data. If Subscriber fails to comply with a Service Notice within the time period set forth in the Service Notice, Noan Technology may block Subscriber’s access to the Services until the requested action is taken. If Subscriber fails to take the required action within ten (10) working days or fails to comply with Subscriber’s obligations under this Section 5 (Subscriber’s Obligations) on two or more occasions during any rolling twelve (12) month period, Noan Technology may terminate the Agreement immediately for cause. Noan Technology also responds to notices of alleged copyright infringement and may block access to the applicable Service or terminate accounts of repeat infringers. All limitations of access, suspensions, and terminations for cause shall be made at Noan Technology' sole discretion and Noan Technology shall not be liable to Subscriber or any third-party for any termination of Subscriber’s account or access to the Services.
6 Term and Termination
6.1 Term
Unless another term is specified in the Agreement, the Agreement commences on the Effective Date set forth in the Agreement and shall thereafter be valid and in force for a period of one month in the case of a monthly subscription or one year in the case of an annual subscription. Unless terminated by either Party before the expiry of the Service Term as defined in the Service Agreement, the Agreement shall continue in force for additional terms, equivalent to the length of the initial term, until terminated by either Party. Any termination of this Agreement shall be made via the Stripe payment platform.
6.2 Termination for Cause
In addition to Noan Technology' right to terminate the entire Agreement under Section 5.6 (Service Notices), Subscriber or Noan Technology may terminate the entire Agreement for cause upon ten (10) working days written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period or (b) if the other Party (i) becomes the subject of a proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors to the extent permitted by applicable laws or governmental regulations, (ii) goes out of business, or (iii) ceases its operations.
6.3 Survival
Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including Sections 5.5 (f), (h), and (i) (under Subscriber’s Obligations), Section 7.1 (Fees), Section 7.5 (Refund or Payment upon Termination), Section 8 (Confidentiality), Section 9 (Licenses and Proprietary Rights), Section 13 (Limitation of Liability), and Section 15 (Indemnification).
7 Fees and Payment
7.1 Fees Subscriber shall pay all fees specified in Agreement and provide accurate and updated billing contact information. The fees payable under the Agreement shall be paid in the currency specified in the Agreement. If no currency is specified, the fees should be paid in United States Dollars (USD).
If minimum commitments are specifically stated in the Agreement, such minimum commitments are
(a) based on Services purchased and not actual usage;
(b) non-cancelable; and
(c) cannot be decreased during the specified term.
Noan Technology reserves the right to change the Service Fee for any additional term, as defined in Clause 6.1, by giving a thirty (30) day notice, unless otherwise agreed in the Service Agreement. Fees paid for minimum commitments are not refundable unless Noan Technology breaches its obligations under this Agreement resulting in Subscriber’s termination of the Agreement.
Subscriber’s payment of fees are neither (x) contingent on the delivery of any future functionality or features nor (y) dependent on statements not set forth in the Agreement. If usage exceeds a Service Capacity stated in the Agreement, Noan Technology reserves the right to charge the overage on a monthly basis for monthly subscriptions or quarterly for annual subscriptions, based on the stated unit price in the Agreement. For clarity, the unit price will be the Service Fee, gross of any discounts, divided by the Service Capacity and divided by the Service Term.
7.2 Payment Terms
Noan Technology will invoice Subscriber either monthly or yearly according to the billing frequency stated in the Agreement. Invoices to be paid by credit card are due on the invoice date, all other invoices are due net thirty (30) days from the invoice date. If any invoiced amount is not received by Noan Technology by the due date, then without limiting Noan Technology' rights or remedies:
(a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, and
(b) Noan Technology may condition future subscription renewals and service orders on shorter payment terms. If Subscriber is paying for Services by credit card, Subscriber will provide Noan Technology' authorized payment processor with valid credit card information and promptly notify Noan Technology' authorized payment processor of any changes necessary to charge the credit card. The provision of credit card information to Noan Technology' authorized payment processor authorizes Noan Technology, through its authorized payment processor, to charge the credit card for all Services specified in the Agreement and any renewal subscription. Subscriber acknowledges that Noan Technology will not have access to Subscriber’s credit card information.
7.3 Suspension of Service and Acceleration
If any amount owing by Subscriber is thirty (30) or more days overdue (or fifteen (15) or more days overdue in the case of invoices to be paid by credit card), Noan Technology may, without limiting any rights and remedies, accelerate Subscriber’s unpaid fee obligations to become immediately due and payable and block the provision of Services to Subscriber until the overdue amounts are paid in full. Noan Technology will give Subscriber at least ten (10) days prior notice that its account is overdue, in accordance with Section 18 (Manner of Giving Notice), before blocking Services to Subscriber.
7.4 Payment Disputes
Noan Technology will not exercise any rights to block Services, accelerate payments, impose late charges or change payment terms under Section 7.2 (Payment Terms) and Section 7.3 (Suspension of Service and Acceleration) with respect to an overdue amount for so long as Subscriber is disputing the overdue amount in good faith. The Parties agree to cooperate diligently and in good faith to resolve the dispute.
7.5 Refund or Payment upon Termination
If Subscriber terminates the Agreement in accordance with Section 6.2 (Termination for Cause), Noan Technology will refund any prepaid fees covering the remainder of the term of the Agreement after the effective date of termination. If the Agreement is terminated by Noan Technology in accordance with Section 6.2 (Termination for Cause), Subscriber will pay any unpaid fees covering the remainder of the term of the Agreement. In no event will termination relieve Subscriber of its obligation to pay any fees payable for the period prior to the effective date of termination. If Subscriber terminates without cause prior to the end of the then-current term, Subscriber shall be immediately liable for the balance of the fees for the remainder of the term.
7.6 Taxes
Fees for Services do not include VAT or any other taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes assessable by any jurisdiction whatsoever (collectively, "Taxes"). Subscriber is responsible for paying all Taxes associated with the Agreement. If Noan Technology is obligated by law to pay or collect Taxes for which Subscriber is responsible, Noan Technology will invoice Subscriber and Subscriber will pay that amount unless Subscriber can provide a valid tax exemption certificate authorized by the appropriate taxing authority. Subscriber will provide Noan Technology any information Noan Technology reasonably requests to determine whether Noan Technology is obligated to collect Taxes. Noan Technology is solely responsible for taxes assessable against its income, property, and employees.
8 Confidentiality
8.1 Confidential Information
“Confidential Information” means all information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be confidential. Subscriber’s Confidential Information includes the Subscriber Data; Noan Technology' Confidential Information includes the Services; and Confidential Information of each Party includes but is not limited to the terms and conditions of the Agreement, including pricing, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by each Party in connection with the Agreement. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Receiving Party; (b) was known to the Receiving Party with no obligation of confidentiality prior to disclosure by Disclosing Party, as proven by records of Receiving Party; (c) is disclosed to Receiving Party by a third-party who did not directly or indirectly obtain the information subject to any confidentiality obligation, or (d) is at any time independently developed by Receiving Party without the use of Disclosing Party’s Confidential Information as proven by records of Receiving Party.
8.2 Protection of Confidential Information
Except as provided in Section 8.3 (Compelled Disclosure) Receiving Party shall not disclose or otherwise make available any Confidential Information of Disclosing Party to anyone except those of its employees, directors, attorneys, agents, subcontractors, and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each Party shall (x) safeguard all Confidential Information of the other Party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information and (y) not use any Confidential Information of the other Party for any purpose outside the scope of the Agreement.
8.3 Compelled Disclosure
If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, then to the extent legally permitted, Receiving Party shall provide Disclosing Party with prior notice of the compelled disclosure and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the compelled disclosure. Any compelled disclosure shall be limited to the extent required and shall be subject to confidentiality protections to the extent practicable. If Receiving Party is compelled by law to disclose Disclosing Party’s Confidential Information as part of a civil proceeding to which Disclosing Party is a Party, and Disclosing Party is not contesting the disclosure, Disclosing Party will reimburse Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9 Licenses and Proprietary Rights
9.1 Subscriber Data
Subscriber grants Noan Technology a worldwide, non-exclusive, revocable, and limited license for the term of the Agreement to store, copy, transmit, and display Subscriber Data and to interoperate with any Non-Noan Technology Services as necessary in order for Noan Technology to provide the Services in accordance with the Agreement. Subject to this limited license, Noan Technology acquires no right, title, or interest from Subscriber under the Agreement in or to Subscriber Data.
9.2 Noan platform
Noan Technology grants Subscriber a limited non-exclusive, non-transferable, non-sublicensable license to use Noan Technology's web-based personalized and collaborative business-building platform (“Noan platform”) solely in connection with the subscribed Services in accordance with the Agreement. Noan Technology shall retain all ownership rights, title, and interest to the Noan platform, including but not limited to pre-existing know-how, ideas, techniques, concepts, trademarks, and patents.
9.3 Feedback
Subscriber grants to Noan Technology worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Subscriber.
9.4 Support-related Deliverables
Noan Technology hereby grants Subscriber a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Noan Technology for Subscriber and delivered by Noan Technology to Subscriber in connection with Implementation Services ("Deliverables"). Aside from Subscriber’s intellectual property described in any applicable SOWs and subject to Subscriber’s ownership of its proprietary information and Confidential Information disclosed to Noan Technology under Section 8 (Confidentiality), Noan Technology shall retain all ownership rights to the Deliverables. Deliverables that are custom code written by Noan Technology to facilitate Subscriber’s use of the Services that include any Subscriber Confidential Information shall remain subject to the confidentiality obligations under Section 8 (Confidentiality) and Subscriber shall retain all ownership rights to its Confidential Information.
10 Intellectual Property Rights
10.1 Intellectual Property Rights Ownership
The Services are the proprietary information of Noan Technology. Subject to the limited rights expressly granted in the Agreement, Noan Technology and Noan Technology's licensors reserve all rights, title, and interest in and to the Services including all related intellectual property rights. No rights are granted to Subscriber except as expressly set forth in the Agreement. No rights are granted to Noan Technology except as expressly set forth in the Agreement. Subscriber may not copy, change or in any other way handle software belonging to the Services, and neither transfer nor make available the rights to such software or material to a third-party unless agreed in writing with Noan Technology.
10.2 The Parties’ Responsibilities
Noan Technology shall ensure that Subscriber’s use of the Services does not infringe any intellectual property right. Noan Technology undertakes to defend and indemnify Subscriber against any claims or actions regarding infringement of a third-party's intellectual property rights due to Subscriber’s use of the Services. The Parties undertake to indemnify the other Party in accordance with Section 15 (Indemnification).
10.3 Other Content
The Services may contain links to websites or resources of others (“External Links”). Noan Technology does not endorse and are not responsible or liable for the accuracy, availability, content, products, services or anything else as it pertains to External Links. Subscriber is solely responsible for the use of any such websites or resources.
11 Export Compliance
The Services may be subject to export laws and regulations of the United States and other jurisdictions, and any use or transfer of the Services must be permitted under these laws and regulations. Each Party represents that it is not named on any U.S. government denied-party list. Subscriber shall not enable the use of the Services in violation of any U.S. export law or regulation.
12 Anti-corruption
Subscriber has not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any Noan Technology personnel or agents in connection with the Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. If Subscriber becomes aware of any violation of the above restriction, Subscriber will promptly notify Noan Technology’s' General Counsel at legal@getnoan.com.
13 Limitations of Liability
In no event will a Party be liable for any lost profits, lost opportunities, or indirect, special, incidental, or consequential damages or any other indirect damage or loss. In no event will either Party’s aggregate liability (together with all of its Affiliates) arising out of or related to the Agreement (regardless of the number of individual incidents giving rise to liability) exceed the total amount actually paid by Subscriber hereunder for the Services giving rise to the liability in the twelve (12) months preceding the first incident out of which the liability arose. The above limitations will not limit Subscriber’s payment obligations under Section 7 (Fees and Payment), any Party’s liability under Section 15 (Indemnification) and Section 8 (Confidentiality), or in the event of a Party’s gross negligence. Noan Technology's aggregate liability for claims relating to, or based on, personal data processing is limited to USD 1,000,000. Any claims for damages shall be submitted no later than six (6) months from the time the damage occurred, however, never later than three (3) months from the expiration or termination of the Agreement.
14 Warranties
14.1 Noan platform Warranty
In addition to its obligations under Section 3 (Noan Technology's Obligations), Noan Technology warrants that during the term of the Agreement that:
(a) the Noan platform will perform materially in accordance with the Agreement,
(b) the overall effectiveness of the Security Measures will not be decreased and
(c) Noan Technology will not materially decrease the overall functionality of the Noan platform. With regards to Non-Noan Technology Services, Noan Technology reserves the right to deprecate any endpoints that facilitate communication and data transfer between the Noan platform and Non-Noan Technology Services, and to request Subscriber to use the new endpoints within 6 months of the endpoint being deprecated. Without limiting Noan Technology' obligations pursuant to Section 3 (Noan Technology' Obligations), Subscriber’s exclusive remedies for a breach of a warranty in this Section 14.1 (Noan platform Warranty) shall be to exercise the express rights described in Sections 6.2 (Termination for Cause) and 7.5 (Refund or Payment upon Termination).
14.2 Implementation Services Warranty
Any Implementation Services specified in the Agreement will be performed in a professional manner, in accordance with generally accepted industry standards. Subscriber’s exclusive remedies for breach of the warranty in this Section 14.2 shall be either (a) re-performance of the Implementation Services by Noan Technology; (b) to exercise the express rights described in Sections 6.2 (Termination for Cause) and 7.5 (Refund or Payment upon Termination).
14.3 Disclaimers
Except as expressly provided in this Section 14, neither Party makes any warranty or guarantee of any kind, whether express, implied, statutory, or otherwise, and each Party specifically disclaims all warranties, whether implied, express, or statutory, including any implied warranty of title, merchantability, fitness for a particular purpose, or non-infringement, to the maximum extent permitted by applicable laws or governmental regulations. Noan Technology disclaims any warranty that the operation of the Services will be error-free or uninterrupted.
15 Indemnification
15.1 Indemnification by Noan Technology
Noan Technology will indemnify and defend Subscriber against any and all third-party claims, demands, suits or proceedings (each a "Claim Against Subscriber") and all related judgments, liabilities, awards, damages, costs, including reasonable attorneys’ fees and expenses, arising out of or in connection with, or alleging the Services, use of, or access to the Services by Subscriber, in accordance with the Agreement, infringe or misappropriate any third-party’s intellectual property rights, provided Subscriber
(a) promptly gives Noan Technology written notice of the Claim Against Subscriber;
(b) gives Noan Technology sole control of the defense and settlement of the Claim Against Subscriber (except that Noan Technology may not settle any Claim Against Subscriber unless it unconditionally releases Subscriber of all liability related to the Claim Against Subscriber); and
(c) gives Noan Technology all reasonable assistance in connection with the defense or settlement of such Claim Against Subscriber, at Noan Technology' expense. If Noan Technology receives information about an infringement or misappropriation claim related to the Services, Noan Technology may in its discretion and at no cost to Subscriber
(x) modify the Service so that it no longer infringes or misappropriates, without breaching Noan Technology' obligations under Section 3 (Noan Technology' Obligations);
(y) obtain a license for Subscriber’s continued use of that service in accordance with the Agreement; or
(z) terminate Subscriber’s subscription for the affected portion of the Service upon twenty (20) working days written notice and refund Subscriber any prepaid fees covering the remainder of the term for the terminated portion of the Services.
The above defense and indemnification obligations do not apply to the extent a Claim Against Subscriber arises from
(i) Subscriber Data,
(ii) Subscriber’s use of beta services,
(iii) a Non-Noan Technology Services,
(iv) Subscriber’s breach of the Agreement,
(v) any modification or alteration to the services not made by Noan Technology,
(vi) any combination or use of the Services with products or services not expressly approved by Noan Technology or
(vii) Subscriber’s continued use of the allegedly infringing portion of the Services after receiving notice from Noan Technology regarding the same.
15.2 Indemnification by Subscriber
Subscriber will indemnify and defend Noan Technology against any and all third-party claims, demands, suits or proceedings (each a "Claim Against Noan Technology") and all related judgments, liabilities, awards, damages, costs, including reasonable attorneys’ fees and expenses, arising out of or in connection with, (i) Subscriber Data, or (ii) Subscriber’s use of the Services in breach of the Agreement, provided Noan Technology (a) promptly gives Subscriber written notice of the Claim Against Noan Technology; (b) gives Subscriber sole control of the defense and settlement of the Claim Against Noan Technology (except that Subscriber may not settle any Claim Against Noan Technology unless it unconditionally releases Noan Technology of all liability related to the Claim Against Noan Technology); and (c) give Subscriber all reasonable assistance in connection with the defense or settlement of such Claim Against Noan Technology, at Subscriber’s expense. The above defense and indemnification obligations do not apply to the extent a Claim Against Noan Technology arises from Noan Technology' delivery of the Services as described herein or Noan Technology' breach of the Agreement. Except with respect to a dispute between Subscriber and Noan Technology, Subscriber will reimburse Noan Technology for all costs and reasonable attorneys’ fees for responding to third-party or governmental requests for information arising out of or in connection with Subscriber Data or Subscriber’s use of the Services.
15.3 Additional Indemnities
For purposes of this Section 15, (a) a Claim Against Noan Technology shall include a claim against Noan Technology, Noan Technology' Affiliates, and Noan Technology' or its Affiliates’ officers, directors, and employees, and (b) a Claim Against Subscriber shall include a claim against Subscriber, Subscriber’s Affiliates, and Subscriber’s or its Affiliates’ officers, directors, and employees.
15.4 Exclusive Remedy
This Section 15 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section 15.
16 Personal Data
When providing the Services to the Subscriber, Noan Technology, in the capacity of data processor, will process personal data on behalf of the Subscriber in accordance with the Data Processing Agreement. Noan Technology will also process personal data for its own purposes, in the capacity of data controller, in accordance with Noan Technology's Privacy Notice.
17 Assignment
Neither Party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld) provided, however, either Party may assign the Agreement in its entirety, without the other Party’s consent (a) to its Affiliate or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the immediately preceding sentence, if a Party is acquired by, sells all or substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may, but is not required to, terminate the Agreement upon written notice. In the event of such a termination by Noan Technology, Noan Technology will refund to Subscriber any prepaid but unused fees covering the remainder of the term of the Agreement after the effective date of such termination.
18 Manner of Giving Notice
18.1 Notices under the Agreement Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; or (c) the day of sending by email. Notices of termination of the Agreement shall be addressed to legal@getnoan.com and the Noan Technology account manager. All other notices under the Agreement shall be provided to the Parties’ respective contact person as specified in the Agreement.
19 Governing Law and Jurisdiction
The Agreement shall be governed by and construed in accordance with the controlling laws of Delaware, excluding rules governing conflict of law and choice of law. The courts in Delaware shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement.
20 Publicity
Subscriber consents to Noan Technology's use of Subscriber’s logo, company name, quotes, and general description of Subscriber’s relationship with Noan Technology on websites, in press releases, and in other marketing and sales materials. Subscriber permits Noan Technology’ to use Subscriber’s logo, company name, and quotes as a reference account for marketing purposes and agrees, from time to time, to support Noan Technology by participating in reference phone call(s) and other marketing events including with press, analysts, and Noan Technology' existing or potential investors, or customers upon reasonable request by Noan Technology.
Noan Technology hereby grants to Subscriber the express right to use Noan Technology' logo and company name to identify Noan Technology as a provider of Services to Subscriber. Other than as expressly stated herein, neither Party shall use the other Party’s trademarks, codes, drawings, or specifications without the prior written permission of the other Party.
21 Force Majeure
Except for payment obligations under the Agreement, neither Party will be liable for failure to perform or inadequate performance under the Agreement to the extent caused by a condition that was beyond the Party’s reasonable control and which substantially affects the Party’s or its sub-suppliers’ or subcontractors’ performance, including, for example, an act of God, natural disaster, epidemic or pandemic, act of war or terrorism, riot or civil arrest, labor conditions such as boycott, strike, lock-out, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services. If the performance of the Services in substantial respects is prevented for a period exceeding two (2) months due to a circumstance stated herein, either Party shall have the right to terminate the Agreement in writing, without incurring any liability for compensation.
22 Entire Agreement
The Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following, the order of precedence shall be: (i) the Service Agreement, (ii) the DPA, (iii) and the Terms of Service. Noan Technology and Subscriber each represent that it has validly entered into or accepted the Agreement and has the legal power to do so. Noan Technology may modify these Terms from time to time. Any term or condition stated in a Subscriber purchase order or other Subscriber order documents (excluding the Service Order Form in the Agreement) is void. No failure or delay by either Party in exercising any right under the Agreement will constitute a waiver of that right. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the Agreement will remain in effect. All reference in the Agreement to “including” means “including but not limited to.”
23 Changes to these Terms
Any and all changes to these Terms will be posted at www.getnoan.com/terms and the Terms will indicate the date they were last updated and their effective date. The changes will become effective thirty (30) days after posting and Subscriber may terminate the Agreement without penalty upon written notice to Noan Technology at legal@getnoan.com within ten (10) working days of the effective date of the revised Terms. Subscriber is deemed to accept and agree to be bound by any changes to the Agreement when Subscriber uses the Service after the effective date of those changes. Notwithstanding the foregoing, in the event that the Parties enter into, or have entered into a separate formal written subscript agreement, the terms of that agreement shall control over the terms of the Agreement unless the Parties expressly agree to supersede such agreement with this Agreement.
Expert/Consultant Terms & Conditions
By accepting these terms, Consultants/Experts agree to the following terms as an agreement (“Agreement”) with Noan Technology, Inc a Delaware corporation having its principal place of business at 1 Tulip Lane, Larchmont, NY, 10538 (“Company”), and themselves (“Consultant”).
Company desires to have Consultant perform consulting services for Customers of the Company (”Users”) and Consultant desires to perform such services for Users, subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES.
1.1 Performance of Services. Consultant will perform the consulting services (“Services”) described in detail on Exhibit A to this Agreement (“Statement of Work”) in accordance with the terms and conditions of this Agreement and the Statement of Work.
1.2 Payment. Company will collect Consultant fees paid by user in accordance with the terms set forth in the Statement of Work and, after deducting payment processing fees and a standard 5% commission from the gross amount charged to user, issue the remainder to Consultant . Company will not reimburse Consultant for any expenses incurred by Consultant in connection with performing Services and will not reimburse for basic office and administrative expenses. Subject to the foregoing, Company will pay each invoice into Consultant’s connected bank account as early as practicable after the completion of the session with User, with due regard to payment platform limitations which may cause payment to be delayed as long as 14 days..
2. RELATIONSHIP OF PARTIES.
2.1 Independent Contractor. Consultant is an independent contractor and is not an agent or employee of, and has no authority to bind, Company by contract or otherwise. Consultant will perform the Services under the direction of Company as outlined in the Statement of Work, but Consultant will determine, in Consultant’s sole discretion, the timing by which the Services are accomplished, subject to the requirement that Consultant will at all times comply with applicable law. Company has no right or authority to control the manner or means by which the Services are accomplished, but reserves the right to remove Consultant from The Marketplace should Consultant fail to perform the Services in general alignment with structures set out in the Statement of Work.
2.2 Employment Taxes and Benefits. Consultant will report as self-employment income all compensation received by Consultant pursuant to this Agreement. Consultant will indemnify Company and hold it harmless from and against all claims, damages, losses, costs and expenses, including reasonable fees and expenses of attorneys and other professionals, relating to any obligation imposed by law on Company to pay any withholding taxes, social security, unemployment or disability insurance, or similar items in connection with
compensation received by Consultant pursuant to this Agreement, other than any and all withheld as mandated by applicable law and applied by Company’s chosen payment platform.. Consultant will not be entitled to receive any vacation or illness payments or to participate in any plans, arrangements, or distributions by Company pertaining to any bonus, stock option, profit sharing, insurance or similar benefits for Company’s employees.
3. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS.
3.1 Definition of Innovations. Consultant agrees to disclose in writing to Company allusion of inventions, products, designs, drawings, notes, documents, information, documentation, improvements, works of authorship, processes, techniques, know-how, algorithms, technical and business plans, specifications, hardware, circuits, computer languages, computer programs, databases, user interfaces, encoding techniques, and other materials or innovations of any kind that Consultant may make, conceive, develop or reduce to practice, alone or jointly with others, as a result of performing Services or that result from or that are related to such Services, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection (collectively, “Innovations”), (i) other than those which form part of the services performed by Consultant for the benefit of User.
3.2 Ownership of Innovations. Consultant and Company agree that, to the fullest extent legally possible, and excluding such innovations as outlined in 31(i), all Innovations will be works made for hire owned exclusively by Company. Consultant agrees that, regardless of whether the Innovations are legally works made for hire, all Innovations will be the sole and exclusive property of Company. Consultant hereby irrevocably transfers and assigns to Company, and agrees to irrevocably transfer and assign to Company, all right, title and interest in and to the Innovations, including all worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights (collectively, “Intellectual Property Rights”) therein. At Company’s request and expense, during and after the term of this Agreement, Consultant will assist and cooperate with Company in all respects and will execute documents, and, subject to the reasonable availability of Consultant, give testimony, and will take such further acts reasonably requested by Company to enable Company to acquire, transfer, maintain, perfect and enforce its Intellectual Property Rights and other legal protections for the Innovations. Consultant hereby appoints the officers of Company as Consultant’s attorney-in-fact to execute documents on behalf of Consultant for this limited purpose.
3.3 Moral Rights. Consultant also hereby irrevocably transfers and assigns to Company, and agrees to irrevocably transfer and assign to Company, and waives and agrees never to assert, any and all Moral Rights (as defined below) that Consultant may have in or with respect to any Innovation, during and after the term of this Agreement. “Moral Rights” mean any rights to claim authorship of any Innovation, to object to or prevent the modification or destruction of any Innovation, to withdraw from circulation or control the publication or distribution of any Innovation, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a “moral right.”
3.4 Related Rights. To the extent that Consultant owns or controls (presently or in the future) any patent rights, copyright rights, mask work rights, trade secret rights, or any other intellectual property or proprietary rights that block or interfere with the rights assigned to Company under this Agreement (collectively, “Related Rights”), Consultant hereby grants or will cause to be granted to Company or User, as appropriate during the course of providing Services, a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to make, have made, use, offer to sell, sell, import, copy, modify, create derivative works based upon, distribute, sublicense, display, perform and transmit any products, software, hardware, methods or materials of any kind that are covered by such Related Rights, to the extent necessary to enable Company to exercise all of the rights assigned to Company under this Agreement.
4. CONFIDENTIAL INFORMATION. For purposes of this Agreement, “Confidential Information” means and will include: (i) any information, materials or knowledge regarding Company or User and their business, financial condition, products, programming techniques, customers, suppliers, technology or research and development that is disclosed to Consultant or to which Consultant has access in connection with performing Services; (ii) the Innovations; and (iii) the existence and terms and conditions of this Agreement. Confidential Information will not include, however, any information that is or becomes part of the public domain through no fault of Consultant or that Company or User regularly gives to third parties without restrictions on use or disclosure. Consultant agrees to hold all Confidential Information in strict confidence, not to use it in any way, commercially or otherwise, except in performing the Services, and not to disclose it to others. Consultant further agrees to take all action reasonably necessary to protect the confidentiality of all Confidential Information including, without limitation, implementing and enforcing procedures to minimize the possibility of unauthorized use or disclosure of Confidential Information.
5. WARRANTIES.
5.1 Pre-existing Obligations. Consultant represents and warrants that Consultant has no pre-existing obligations or commitments (and will not assume or otherwise undertake any obligations or commitments) that would be in conflict or inconsistent with, or that would hinder Consultant’s performance of its obligations under this Agreement.
5.3 Solicitation of Services. Because of the trade secret subject matter of Company’s business, Consultant agrees that, during the term of this Agreement and for a period of one (1) year thereafter, it will not solicit the services of any of Company’s employees, consultants, suppliers or customers for Consultant’s own benefit or for the benefit of any other person or entity.
5.4 Compliance with Law. Consultant will perform the Services in compliance with all applicable international, federal, state and local laws, ordinances and regulations.
6. INDEMNIFICATION. Consultant will indemnify and hold harmless Company from and against all claims, damages, losses and expenses, including court costs and reasonable attorneys’ fees, arising out of or resulting from providing Services through Company’s platform, and, at Company’s option, Consultant will defend Company against:
(i) any action by a third party against Company that is based on a claim that any Services, the results of any Services (including any Innovations), or Company’s use thereof, infringe, misappropriate or violate a third party’s Intellectual Property Rights; and
(ii) any action by a third party against Company that is based on any negligent act or omission or willful conduct of Consultant and that results in: (a) bodily injury, sickness, disease or death; (b) injury or destruction to tangible or intangible property (including computer programs and data) or any loss of use resulting there from; or (c) the violation of any statute, ordinance, or regulation.
7. TERM AND TERMINATION.
7.1 Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as Consultant is performing Services pursuant to the Statement of Work. If Company elects to terminate this agreement, 14 days notice is required via email. If Consultant elects to terminate this agreement, no notice is required.
7.2 Termination for Breach. Either party may terminate this Agreement (including the Statement of Work) if the other party breaches any material term of this Agreement and fails to cure such breach within ten business (10) days following written notice thereof from the non-breaching party.
7.3 Termination for Convenience. Company may immediately terminate this Agreement (including the Statement of Work) at any time, for any reason or no reason, by written notice to Consultant.
7.4 Effect of Termination.
(a) Upon the expiration or any termination of this Agreement (except termination of this Agreement pursuant by Company pursuant to Section 7.2 for breach by Consultant), Company will pay Consultant any amounts that are due and payable under Section 1.2 for Services performed by Consultant prior to the effective date of expiration or termination.
(c) Upon the expiration or termination of this Agreement for any reason, Consultant will promptly notify Company of all Confidential Information in Consultant’s possession or control and will promptly deliver all such Confidential Information to Company, at Consultant’s expense and in accordance with Company’s instructions.
7.5 Survival. The provisions of Sections 2.2, 3, 4, 5.3, 6, 7.4, 7.5, 8 and 9 will survive the expiration or termination of this Agreement.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF COMPANY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
9. GENERAL.
9.1 No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by Company of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or available at law or in equity.
9.2 Assignment. Consultant may not assign or transfer any of Consultant’s rights or delegate any of Consultant’s obligations under this Agreement, in whole or in part, without Company’s express prior written consent. Any attempted assignment, transfer or delegation, without such consent, will be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties permitted successors and assigns.
9.3 Equitable Remedies. Because the Services are personal and unique and because Consultant will have access to Confidential Information of Company and/or User, Company will have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without having to post a bond or other consideration, in addition to all other remedies that Company may have for a breach of this Agreement.
9.4 Attorneys’ Fees. If any action is necessary to enforce the terms of this Agreement, the substantially prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.
9.5 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, excluding that body of law pertaining to conflict of laws. 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 hereby irrevocably consent to the personal jurisdiction and venue therein.
9.6 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
9.7 Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed email and in each instance will be deemed given upon receipt
9.8 Entire Agreement. This Agreement, together with the Statement of Work, constitutes the complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. In the event of a conflict, the terms and conditions of the Statement of Work will take precedence over the terms and conditions of this Agreement. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
9.9 Waiver. The waiver of any breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same other provisions hereof.
9.10 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
EXHIBIT A
Statement of Work
This Statement of Work is issued under and subject to all of the terms and conditions of the Consulting Agreement dated as agreed to by checking the acceptance checkbox by and between Noan Technology (“Company”) and the Consultant (“Consultant”) for the benefit of a Company’s customers (“User”). Description of Services: One-hour consultation with User
COMPANY:
Will provide Consultant with preparatory materials from User, which may include but will not be limited to;
Profile of User’s company, brand, audiences and other aspects of User’s business as shared with Company using Company’s platform
Any relevant completed frameworks completed by User on Company’s platform
Description of specific problem set defined by User as the key focus for the hour-long consultation
Will provide Consultant with such feedback as Users give about consultations, recommendations etc
Retains the right to terminate this agreement and remove Consultant from The Platform solely at their discretion
CONSULTANT:
Will create and update a profile on The Platform to promote themselves, their areas of expertise and their availability
Will maintain a calendar outlining their availability to work with Users
Will focus the hour-long consultations with Users on addressing the specific problem as defined by User
Work with User to define 2-3 recommendations for next steps towards resolving the identified problem before the end of the hour-long session
2. Payment Terms
Hourly Consulting Rate: $369 (net) payable in USD only
Maximum Number of Hours: No maximum
Maximum Consulting Fee: No maximum
Start Date: As of agreeing to Terms & Conditions