Terms and Conditions
Last Modified: July 26, 2021
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) BEFORE USING THE ESSENVIA SAAS PLATFORM (AS DEFINED BELOW). THESE TERMS, INCLUDING ANY CUSTOMER SUBSCRIPTION AGREEMENT OR SERVICE ORDER FORMS THAT REFERENCE THESE TERMS (“ORDER FORMS”) FORM A BINDING AND EXECUTED WRITTEN AGREEMENT (THE “AGREEMENT”) BETWEEN ESSENVIA, INC. (“ESSENVIA”) AND THE ENTITY AGREEING TO THE SUBSCRIPTION AGREEMENT (“USER”). THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU CLICK THE “SIGN UP” BUTTON TO SIGN UP TO USE THE ESSENVIA SAAS PLATFORM (OR ANY SIMILAR BUTTON OR LINK OR OTHER MECHANISM AS MAY BE DESIGNATED BY ESSENVIA TO SHOW YOUR ACCEPTANCE OF THIS AGREEMENT, SUCH AS BY SIGNING A CUSTOMER SUBSCRIPTION AGREEMENT OR ORDER FORM) (SUCH DATE, THE “EFFECTIVE DATE”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to this Agreement (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to be legally bound by this Agreement. ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH THE ACCESS AND USE OF THE ESSENVIA SAAS PLATFORM. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT of if you do not have the legal authority to bind your employer or the applicable entity, DO NOT CLICK THE “SIGN UP” button AND DO NOT USE THE ESSENVIA SAAS PLATFORM. USER AND ESSENVIA MAY EACH BE REFERRED TO HEREIN AS A “PARTY” IN THESE TERMS, AND ARE, COLLECTIVELY, THE “PARTIES”. ESSENVIA RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CHANGE, MODIFY, ADD OR DELETE PORTIONS OF THESE TERMS AT ANY TIME EXCEPT AS EXPRESSLY PROVIDED IN THE ARBITRATION PROVISION BELOW. IF ESSENVIA CHANGES THESE TERMS, IT WILL POST THE CHANGES ON THIS PAGE AND WILL INDICATE AT THE TOP OF THIS PAGE THE DATE THESE TERMS WERE LAST REVISED. YOU SHOULD PERIODICALLY VISIT THIS PAGE TO REVIEW THE CURRENT TERMS SO YOU ARE AWARE OF ANY REVISION TO WHICH YOU ARE BOUND. YOUR CONTINUED USE OF THE ESSENVIA SAAS PLATFORM (AS DEFINED BELOW) AFTER ANY SUCH CHANGES CONSTITUTES YOUR ACCEPTANCE OF THE NEW TERMS. IF YOU DO NOT AGREE TO ABIDE BY THESE OR ANY FUTURE TERMS, DO NOT USE OR ACCESS (OR CONTINUE TO USE OR ACCESS) THE ESSENVIA SAAS PLATFORM. IN ADDITION, WHEN USING CERTAIN SERVICES, YOU SHALL BE SUBJECT TO ANY ADDITIONAL TERMS APPLICABLE TO SUCH SERVICES THAT MAY BE POSTED ON THE SERVICE FROM TIME TO TIME, INCLUDING, WITHOUT LIMITATION, THE PRIVACY POLICY LOCATED HERE. ALL SUCH TERMS ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS. THESE TERMS CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST ESSENVIA TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ONLY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS. IN CONSIDERATION OF THE MUTUAL PROMISES BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:
BACKGROUND
Novita offers a software-as-a-service platform that allows users in the regulated medical device industry to collaborate, share information among employees, subcontractors and other authorized invitees involved in the applicable 510(k) application project, assemble documents, track progress, and manage the submission of a 510(k) application to the Food and Drug Administration. User wishes to access, and Novita is willing to provide User access, to use the Novita SaaS Platform on the terms and conditions described in this Agreement.
DEFINITIONS
The following terms, when used in this Agreement shall have the following meanings: “Novita SaaS Platform” means the online software-as-a-service platform established and operated by Novita or its affiliates at http://www.novita.com (and any associated websites) for the subscription or other access by Novita clients and other permitted parties to Novita’s Regulatory Submission Manager software-as-a-service for the collaborative preparation, management, submission and tracking of 510(k) applications to the Food and Drug Administration (“FDA”). “Confidential Information“ means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party. “User Content” means any creative or other content created, developed, submitted or otherwise made available by or on behalf of User using the Novita SaaS Platform, including any contributions to any message boards, chat rooms, personal web pages or profiles, forums, bulletin boards or other interactive features offered by the Novita SaaS Platform.
ACCESS TO ESSENVIA SAAS PLATFORM; LICENSES.
2.1 Access to Novita SaaS Platform. Subject to the terms and conditions of this Agreement, Novita hereby grants User a non-exclusive right to access and use the Novita SaaS Platform for its internal business purposes. User shall not license, sublicense, sell, resell, lease, transfer, distribute, time share, or otherwise commercially exploit or make the Novita SaaS Platform available to any third party or reverse-engineer, decompile, translate or create derivative works of the Novita SaaS Platform in any manner. All ownership rights, title, and interest in and to the Novita SaaS Platform, as such may be modified, upgraded, and/or enhanced from time to time (together with all intellectual property rights therein) will remain with and belong exclusively to Novita. Novita reserves all right, title and interest in and to the Novita SaaS Platform not expressly granted to User herein.
Novita requires that each User accessing the Platform set up an administrator account. User may specify one or more persons who administer(s) the services and access to the Novita SaaS Platform on the User’s behalf (“Administrator(s)”). Administrators have the right to access and to administer individual accounts for users. Additionally, Administrators have the right to view every project created by any of the individuals whose accounts they administer and all projects that such users are invited to. Administrators may also edit login credentials for the accounts they administer, including logging into the Novita SaaS Platform or its applications under such accounts or removing such accounts. Administrators are responsible for: (a) maintaining the confidentiality of the password and the Administrator’s account; (b) designating those individuals who are authorized to be Administrators and access the Administrator account(s); and (c) ensuring that all activities that occur in connection with the Administrator account(s) comply with the Terms. User agrees that Novita’s responsibilities do not extend to the internal management or administration of any services provided on the Novita SaaS Platform.
2.2 User Responsibilities.
(a) User agrees to abide by all laws, rules, and regulations that are applicable to it and its use of the Novita SaaS Platform and shall use the Novita SaaS Platform solely for its legitimate business purposes as contemplated by this Agreement and shall not interfere with or disrupt the integrity or performance of the Novita SaaS Platform or the data contained therein or attempt to gain unauthorized access to the Novita SaaS Platform or its related systems or networks.
(b) User shall not include in any User Content any content that is obscene, defamatory, illegal, deceptive, gambling-related, or hateful.
(c) User acknowledges and agrees that User is solely responsible for User’s Content and for User’s conduct while using the Novita SaaS Platform. By creating, submitting, posting, developing or otherwise making Content available to Novita and/or others, User acknowledges and agrees that: (i) User will evaluate and bear all risks associated with User’s Content; (ii) under no circumstances will Novita be liable in any way for User’s Content, including, but not limited to, any loss or damage, any errors or omissions, or any unauthorized access or use; and (iii) User (and not Novita) is responsible for backing up and protecting the security and confidentiality of User’s Content. While Novita implements and maintains physical, technical and administrative security measures designed to protect User Content from unauthorized access, destruction, use, modification, or disclosure and to comply with 21 CFR Part 11 requirements for security, there can be no guaranty that such measures ultimately will prevent unauthorized access by third parties, and therefore User is encouraged to maintain copies of User Content on User’s own computer or local network and to use the latest encryption and other security technology to protect User’s Content.
2.3 Data. As between the parties, User shall own the data it submits via the Novita SaaS Platform and the data generated therefrom that is provided by Novita to User (the “Data”), except that Novita may:
(i) copy, use, modify, distribute, display and disclose Data solely to the extent necessary to provide the Novita SaaS Platform to User pursuant to the terms and conditions of this Agreement (including, without limitation, for purposes of troubleshooting and problem resolution);
(ii) copy, modify and use Data in connection with its business operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions, and archival purposes; and
(iii) copy, modify and use Data on an aggregate and de-identified basis, stripped of any personally identifiable information, for marketing purposes and internal business purposes and analytics, provided that such use or disclosure does not identify User or User’s products, services, segments, attributes, or search criteria, or consist of data solely attributable to User.
2.4 Feedback. User may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Novita with respect to the Novita SaaS Platform. Novita shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. User hereby grants Novita a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to
(a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and
(b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
2.5 Access to User Content. User acknowledges and agrees that:
(a) Any individual user of the Novita SaaS Platform who is designated as a “Company Administrator” can create a project and name any user, including the Company Administrator, as Project Administrator. Company Administrators can invite additional companies and users to their projects. Company Administrators can also grant Company Administrator status to other users. Therefore there may be multiple Company Administrators for a single project. Each project created shall require the payment to Novita of the applicable subscription fee.
(b) The Company Administrator can, at any time, remove any account it administers from any project, which terminates the ability of the account’s individual user to create new content in such project or see any User Content added to such project.
(c) A Project Administrator can, with respect to projects under such Project Administrator’s authority, at any time, (i) modify such project’s settings, (ii) remove any individual user from any company from such project, which terminates such user’s ability to create or view User Content for such project, and (iii) remove any company, and therefore all of the individual users at such company, from such project, which terminates all such users’ ability to create or view User Content for such project.
FEES; REIMBURSEMENT OF EXPENSES
3.1 Payment. Fees payable for the Novita SaaS Platform shall be as set forth in the applicable Customer Subscription Agreement, duly executed by User (or by the User entity by or through whom a User is authorized to use the Novita SaaS Platform). If payment of any fees is not made after it becomes due and payable, User access to the Novita SaaS Platform will be suspended.
3.2 Net of Taxes. All amounts payable by User to Novita are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, knowhow payments, customs, privilege, excise, valueadded and property taxes (collectively “Taxes”). User shall be solely responsible for payment of any Taxes, except for those taxes based on the net income of Novita. User will not withhold any Taxes from any amounts due Novita.
OWNERSHIP AND CONFIDENTIALITY
4.1 User Ownership Rights. User hereby grants Novita a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to copy, distribute, transmit, display, perform, and create derivative works of the User Content solely to perform its obligations hereunder, including without limitation, to provide User with access to and use of the Novita SaaS Platform in accordance with this Agreement. Except for the rights granted hereunder, all rights, title and interests, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to the User Content are retained by User. Novita agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of User in and to such intellectual property rights.
4.2 Novita Ownership Rights. Except for the rights granted hereunder, all rights, title and interests, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to the Novita SaaS Platform and any other Novita product or service are retained by Novita. User agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of Novita or its licensors in and to such intellectual property rights.
4.3 Nondisclosure and Use Restrictions. Each Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and each Party agrees that it shall use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. Nothing in this Section 4.3 is intended to restrict or otherwise limit the exercise by a Party of the rights and licenses granted to it under this Agreement; provided that such Party uses reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, either Party may disclose this Agreement, in whole or in part
(a) to its employees, officers, directors, attorneys, auditors, financial advisors and/or subcontractors who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and
(b) as reasonably deemed by a Party to be required by law (in which case each Party shall provide the other with prior written notification thereof, shall provide such Party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 4.3, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each receiving Party agrees to promptly return to disclosing Party or destroy all Confidential Information of the disclosing Party that is in the possession of receiving Party and to certify the return or destruction of all such Confidential Information and embodiments.
REPRESENTATIONS, WARRANTIES, EXCLUSIONS AND LIMITATIONS
5.1 Representations and Warranties of Each Party. Each Party represents and warrants to the other Party that
(a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder;
(b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and
(c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
5.2 Representations and Warranties of User. User further represents and warrants that User has the full legal authority to grant the rights in and to the User Content granted in this Agreement.
5.3 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ESSENVIA SAAS PLATFORM IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND ESSENVIA DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. USER’S USE OF THE ESSENVIA SAAS PLATFORM IS AT USER’S OWN DISCRETION AND RISK. ESSENVIA and its affiliates, agents and suppliers and each of their respective officers, directors and employees (THE “ESSENVIA PARTIES”) DO NOT WARRANT THAT ANY USE OF OR ACCESS TO THE SERVICE OFFERING WILL BE ERROR-FREE, COMPLETE, SECURE OR MEET USER’S REQUIREMENTS OR EXPECTATIONS; THAT OPERATION OR AVAILABILITY WILL BE UNINTERRUPTED; OR THAT ERRORS OR FAILURES WILL BE CORRECTED OR REMEDIED; AND ESSENVIA PARTIES HEREBY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION THEREWITH. ESSENVIA PARTIES DO NOT WARRANT THAT THE ESSENVIA SAAS PLATFORM WILL PERFORM IN ANY PARTICULAR MANNER AND HEREBY DISCLAIM LIABILITY FOR NEGLIGENCE AND GROSS NEGLIGENCE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, USER ACKNOWLEDGES AND AGREES THAT USER IS SOLELY RESPONSIBLE FOR (AND ESSENVIA PARTIES ASSUME NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) (i) THE DECISIONS THAT USER MAY MAKE REGARDING THE ESSENVIA SAAS PLATFORM, (ii) USE OF THE ESSENVIA SAAS PLATFORM INCLUDING ANY CONTENT, DATA, INFORMATION, OR OTHER MATERIAL ACCESSED BY USER IN CONNECTION WITH THE ESSENVIA SAAS PLATFORM, OR (iii) ANY EFFECTS ON THE BUSINESS OF USER THAT MAY RESULT FROM SUCH USE. ESSENVIA PARTIES MAKE NO WARRANTIES TO ANY THIRD PARTY. USER IS SOLELY RESPONSIBLE FOR ANY DAMAGE IN CONNECTION WITH THE ESSENVIA SAAS PLATFORM INCLUDING ANY CONTENT, DATA, INFORMATION, OR OTHER MATERIAL ACCESSED BY USER IN CONNECTION WITH THE ESSENVIA SAAS PLATFORM, INCLUDING, WITHOUT LIMITATION, TO USER’S COMPUTER SYSTEM OR LOSS OF DATA. ESSENVIA PARTIES DO NOT REPRESENT OR WARRANT THAT THE ESSENVIA SAAS PLATFORM IS OR WILL BE APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION AND USER ACKNOWLEDGES AND AGREES THAT ESSENVIA MAY LIMIT AVAILABILITY, IN WHOLE OR IN PART, TO ANY GEOGRAPHIC AREA, JURISDICTION OR LANGUAGE THAT ESSENVIA CHOOSES, AT ANY TIME, IN ESSENVIA’S SOLE DISCRETION. This Section 5.3 will be enforceable to the maximum extent allowed by applicable law. No information or advice (whether written, oral or otherwise) provided by Novita Parties or their representatives will create any warranty or in any way affect the disclaimers of warranty or limitations of liability expressly provided in these Terms.
5.4 Functionality Limitations. THE ESSENVIA SAAS PLATFORM IS NOT A SUBSTITUTE FOR USER’S OWN JUDGMENT (INCLUDING PROFESSIONAL JUDGMENT) OR INDEPENDENT ANALYSIS, AS APPLICABLE. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE ESSENVIA SAAS PLATFORM, THE ESSENVIA SAAS PLATFORM HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH IT MAY BE USED AND MAY NOT ACHIEVE THE RESULTS USER DESIRES. WITHOUT LIMITATION OF SECTION 2.2 (USER RESPONSIBILITIES) OR 5.3 (EXCLUSIONS), ESSENVIA PARTIES SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR ANY RESULTS OR OUTPUT OBTAINED OR OTHERWISE VIEWED THROUGH THE ESSENVIA SAAS PLATFORM OR ANY MATERIALS DEVELOPED BY USER IN CONNECTION WITH THE ESSENVIA SAAS PLATFORM. USER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT AND CONTROL OF THE USE OF THE ESSENVIA SAAS PLATFORM. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE ESSENVIA SAAS PLATFORM AND THE SELECTION OF THE ESSENVIA SAAS PLATFORM AND OTHER PROGRAMS TO ACHIEVE USER’S INTENDED RESULTS. USER IS ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING AND ANALYZING THE RELIABILITY, ACCURACY AND COMPLETENESS OF ESSENVIA SAAS PLATFORM RESULTS, OUTPUT OR MATERIALS DEVELOPED BY USER IN CONNECTION WITH THE ESSENVIA SAAS PLATFORM (IF ANY), INCLUDING ALL ITEMS VIEWED OR SUBMITTED USING THE ESSENVIA SAAS PLATFORM.
5.5 Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, (A) IN NO EVENT WILL ESSENVIA PARTIES BE LIABLE HEREUNDER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR ANY OTHER DAMAGES WHATSOEVER (HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE), INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR OTHER COVER, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR WILL ANY OF THE FOREGOING PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM A FORCE MAJEURE OR AN ACT OF A THIRD PARTY OR OF NO FAULT ON ITS BEHALF, AND (B) THE TOTAL CUMULATIVE COLLECTIVE LIABILITY OF ESSENVIA PARTIES FOR ALL COSTS, LOSSES OR DAMAGES FROM ALL CLAIMS, ACTIONS OR SUITS HOWEVER CAUSED OR ARISING FROM OR IN RELATION TO USER’S USE OF THE SERVICE OFFERING SHALL NOT EXCEED THE LESSER OF ALL AMOUNTS PAID BY USER FOR THE SERVICE OFFERING GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM OR TEN THOUSAND DOLLARS ($10,000).
5.6 Release and Waiver. To the maximum extent permitted by applicable law, User hereby releases and waives all claims against Novita Parties from any and all liability for claims, damages (direct and consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising out of or in any way connected with use of the Novita SaaS Platform. IF USER IS A CALIFORNIA RESIDENT, USER WAIVES USER’S RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes, or regulations.
5.7 Basis of the Bargain. The parties agree that releases, waivers, warranty disclaimers, limitations of liability and indemnities in these Terms are a fundamental basis of the bargain between User and Novita, and are a material part of the consideration received by Novita for the provision of the Novita SaaS Platform under these Terms, and Novita would not have entered into these Terms and provided the Novita SaaS Platform in the absence of such releases, waivers, warranty disclaimers, limitations of liability and indemnities.
INDEMNIFICATION
User shall, at User’s sole expense and to the fullest extent permitted by law, indemnify, defend (at Novita’s request), and hold harmless Novita Parties against any and all losses, liabilities, expenses (including reasonable attorneys’ fees) suffered or incurred by Novita Parties by reason of any claim, suit or proceeding (“Claim”) arising out of or in connection with:
(a) User Content or use of User Content, including, without limitation, any assertion that User Content or the use thereof may infringe any copyright, trademark, or other intellectual property or other rights of any individual or entity, or are a misappropriation of any individual or entity’s trade secret, or contain any libelous, defamatory, disparaging, pornographic, or obscene materials or use thereof caused death or bodily injury or damage to the real or tangible property of any third party;
(b) any breach of or failure by User to comply with these Terms; or
(c) use of the Novita SaaS Platform by User (or anyone who accesses the Novita SaaS Platform through User pursuant to Section 2.1). If requested by Novita to defend a Claim, User will not agree to any settlement without the prior written consent of Novita, and Novita shall have the right to participate, at its own expense, in the defense of any Claim with counsel of its own choosing.
TERM, TERMINATION
7.1 Term. This Agreement will commence as of the Effective Date, and unless earlier terminated in accordance with this Agreement, will remain in effect for the term specified in the applicable Customer Subscription Agreement (the “Term”).
7.2 Termination. Either party may terminate this Agreement if the other party commits a material breach that is not cured within 30 days of written notice requiring remedy or, if the breach is the non-payment of money, that is not cured within 10 days of written notice.
7.3 Obligations on Termination. Upon termination or expiration of the Term or other termination of this Agreement all rights granted hereunder and all obligations of Novita to provide the Novita SaaS Platform shall immediately terminate. Termination of this Agreement or expiration of the Term shall not relieve User from paying all fees accruing prior to termination. Sections 1, 2.2(c), 2.3, 2.4, 2.5, and 4-9 shall survive the termination or expiration of this Agreement or the Term for any reason whatsoever.
7.4 Force Majeure. No Party hereto shall have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any of the following events (each, a “Force Majeure Event”):
(i) any fire, explosion, unusually severe weather, natural disaster or Act of God;
(ii) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing;
(iii) any act of declared or undeclared war or of a public enemy, or any riot or insurrection;
(iv) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities;
(v) any strike, lockout or other labor dispute or action;
(vi) any action taken in response to any of the foregoing events by any civil or military authority; or
(vii) any other event beyond such Party’s control; provided that financial inability in and of itself shall not be a Force Majeure Event.
DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER
USER SHOULD READ THIS SECTION CAREFULLY AS IT AFFECTS USER’S RIGHTS
Most customer concerns can be resolved quickly and to the customer’s satisfaction by calling Novita’s Customer Service Department at [Novita 800 number] or by emailing Novita at support@Novita.com. However, if Novita is not able to resolve a dispute after attempting to do so informally, then as a condition to User’s use of the Novita SaaS Platform, the parties mutually agree to resolve such dispute through binding arbitration under the auspices of JAMS Alternative Dispute Resolution (“JAMS”). User and Novita mutually agree to arbitrate all unresolved disputes and claims between them. This agreement to arbitrate is intended to be broadly interpreted. JAMS will administer any such arbitration under its Comprehensive Arbitration Rules & Procedures and Consumer Minimum Standards. The arbitration will be held in Boston, Massachusetts or any other location as to which the parties may then mutually agree. A party seeking arbitration must first send to the other, by certified mail, a written notice of dispute. Any notice to Novita must be addressed to 22204 Victory Blvd., Woodland Hills, CA 91367. Any notice to User shall be sent to User’s address as set forth in Novita’s records of account or such other legal address as Novita is able to identify. User agrees that, by entering into this Agreement, User and Novita are each waiving the right to a trial by jury or to participate in a class action. User may resolve disputes with Novita or participating attorneys only on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. Notwithstanding this agreement to arbitrate disputes as provided above, the following exceptions will apply to the resolution of disputes between the parties:
- Novita may bring a lawsuit against User in any court of competent jurisdiction solely for injunctive relief to stop any unauthorized use or abuse of the Novita SaaS Platform without first engaging in arbitration or the informal dispute-resolution process described above.
- Novita may bring a lawsuit against User in any court of competent jurisdiction solely for injunctive relief to stop any intellectual property infringement without first engaging in arbitration or the informal dispute-resolution process described above.
- In the event that the agreement to arbitrate provided herein is found to be inapplicable or unenforceable for any reason, then as a condition to User’s use of the Novita SaaS Platform the parties agree that any resulting judicial proceedings will be brought in the federal or state courts located in Los Angeles County, California, and by User’s use of the Novita SaaS Platform User expressly consents to venue and personal jurisdiction of the courts therein.
Novita may, in the future, make changes to these provisions regarding dispute resolution and arbitration by providing notice in accordance with these Terms. User may reject any changes made during User’s use of the Novita SaaS Platform by sending written notice to Novita. Such notice must be given within thirty (30) calendar days of the notice of modification to the following address: 22204 Victory Blvd., Woodland Hills, CA 91367.
GENERAL
9.1 Publicity. Neither Party will make any separate public announcement regarding this Agreement or any of the contents contained herein without the prior written consent of the other Party, which will not be unreasonably withheld. Notwithstanding the foregoing, during the Term, Novita may (i) issue mutually agreed upon press releases announcing and/or describing the relationship between Novita and User; provided that Novita gives User a reasonable opportunity to review and comment on the proposed disclosure prior to its public release, (ii) use User’s name and marks in any general listing of customers of Novita in marketing and promotional materials, including on the Novita website, (iii) use User’s name and marks in connection with proposals to third parties, and (iv) otherwise refer to User in print or electronic form for marketing, reference and other business purposes.
9.2 No Assignment. Neither Party may assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the non-assigning Party, which consent may be withheld at the sole discretion of the non-assigning Party. Notwithstanding the foregoing, either Party may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with such Party or that acquires all or substantially all of the assets and business of the assigning Party to which this Agreement relates by merger or purchase, provided that such person or entity assumes in writing all of the terms and conditions of this Agreement. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.
9.3 Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by a duly authorized representative of both Parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.4 Relationship. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
9.5 Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date. If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable law. In such event, the invalid or unenforceable provision shall be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.
9.6 Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its rules of conflict of laws.
9.7 Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed facsimile or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the applicable Order Forms or such other addresses designated pursuant to this Section.
9.8 Entire Agreement. This Agreement (including the applicable Customer Subscription Agreement) constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both Parties.