Neemee® Software and Services
License Agreement and Standard Terms and Conditions
Effective: March 1, 2009
NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY CLICKING ACCEPTANCE, DOWNLOADING, INSTALLING, REGISTERING AN ACCOUNT FOR, LOGGING INTO AN ACCOUNT, ACCESSING OR OTHERWISE USING ANY PART OF THE SOFTWARE (AS DEFINED BELOW), OR BY MANIFESTING YOUR ASSENT TO THESE TERMS IN ANY OTHER MANNER, USER (AS DEFINED BELOW) ACCEPTS AND AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USER MUST SELECT THE BUTTON INDICATING NON-ACCEPTANCE AND REFRAIN FROM DOWNLOADING, INSTALLING, REGISTERING AN ACCOUNT FOR, LOGGING INTO AN ACCOUNT, ACCESSING OR OTHERWISE USING ANY PART OF THE SOFTWARE.
This is an agreement ("Agreement") between Noble Entura, LLC ("Noble") and any person or entity ("User") who purchases, downloads, installs, registers an account for, accesses or otherwise uses the neemee materials, content, software or online services (collectively, the "Software"). In the event that User purports to be the agent of, represent or otherwise act on behalf of an entity or any other person, references to "User" shall include such entity or person in addition to such representative. In addition to this Agreement, User shall be bound by and subject to any separate agreements entered into with Noble by User or any entity or other person on behalf of whom User purports to be the agent of, represent or otherwise act. References to Software, as used herein, include any and all accompanying and supporting software, services, whether or not provided online, content and documentation, and any upgrades, modified versions, updates or additions thereto. Noble and User are collectively referred to as the "parties."
1. Software Terms
a. Description. The Software is proprietary to Noble and its licensors and is protected by intellectual property laws and international intellectual property treaties. User's access to the Software is licensed and not sold. Noble hereby reserves all rights not expressly granted to User, including, without limitation, the right to alter, modify, update, enhance, improve or create derivative or collective works incorporating the Software.
b. Software. Upon payment of any applicable fees or charges as set forth in a purchase schedule or other form of purchase order executed by Noble (a "Purchase Schedule"), Noble grants User a limited, nonexclusive, nontransferable, revocable license to use the Software in the original, unmodified, machine-readable object code form only and solely for User's internal business or educational needs (and not for service bureau, time-sharing or similar services) subject to the terms and restrictions set forth in this Agreement. User is not permitted to use or transfer the Software in any manner not expressly authorized by this Agreement or applicable law. As between User and Noble, User acknowledges that all ownership of the Software belongs to Noble and its licensors. If User is an entity or purports to act on behalf of an entity, Users of such entity may not exceed the number of licenses and/or accounts indicated on a Purchase Schedule or Beta Test License. Noble may provide different types of licenses to Users, each enabling a User to take advantage of different features of the Software. User shall not exceed the scope of User's license to use the Software, and User shall not provide User's Account Information (as defined below) to another User for any reason, including, without limitation, in order for such other User to access additional features of the Software.
c. Accessibility of the Software. User understands and agrees that from time to time that the Software may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment or software malfunctions; (ii) periodic maintenance procedures or repairs which Noble may undertake from time to time; or (iii) causes beyond the control of Noble or which are not foreseeable by Noble. User acknowledges that access to the Software is provided over various facilities and communications lines, and that information will be transmitted over local exchange and Internet backbone carrier lines and through routers, switches and other devices (collectively, "carrier lines") owned, maintained and serviced by third-party carriers, utilities and Internet service providers, all of whom are beyond Noble's control. Use of the carrier lines to access the Software and transmit information is solely at User's risk and is subject to all local, state, federal and international laws.
d. Equipment. User shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for User's use of the Software, including, without limitation, telecommunications and Internet access connections and links, web browsers or other equipment, and programs and services required to access and use the Software.
e. Reverse Engineering. Modification, reverse engineering, reverse compiling or disassembly of the Software is expressly prohibited.
a. Account Information and Security. In order to access the Software, User will be required to register with Noble and select a username and password (collectively, User's "Account Information"). This Account Information shall be used only by User, and User may not share or otherwise disclose User's Account Information to any other party. User shall be solely responsible for the security, confidentiality and integrity of all information that User receives, transmits through or stores using or through the Software. User shall be solely responsible for the security, confidentiality and integrity of User's Account Information and for any authorized or unauthorized access and use of User's account by any person. User has the affirmative responsibility to monitor and control access to User's Account Information. If at any time User learns or suspects that User's Account Information has been disclosed or otherwise made known to any person other than User, User agrees to immediately notify Noble. As part of this registration process, User is required to disclose User's email address to Noble and is required to keep such email address current.
b. Monitoring. User acknowledges and agrees that Noble may, but has no affirmative obligation to, monitor any and all transmissions, materials and information uploaded, posted or otherwise transferred using the Software. Noble may, but has no affirmative obligation to, review, censor, remove or otherwise prohibit the transmission or receipt of, or delete, remove or block access to, any materials which Noble, in its sole discretion, deems inappropriate, objectionable or in violation of any term or condition of this Agreement or applicable law. Noble reserves the right, but has no affirmative obligation, to monitor User accounts to (i) operate the Software properly; (ii) administer and manage Noble's business; (iii) provide all Users with the highest quality products and services; (iv) verify compliance with laws or this Agreement; (v) protect Noble and its Users; and/or (vi) satisfy any law, regulation or other government request.
c. Other Users. User acknowledges that other Users have access to the Software and information made available thereby. The actions of such other Users are beyond the control of Noble. Accordingly, Noble does not assume any liability for or relating to any impairment of the privacy, security, confidentiality, integrity, availability or restricted use of the Software or any content provided thereby from any other User's actions or omissions.
e. Circumvention. User agrees not to access User Content, the Software or any other aspect of or information contained on the Software through any technology or means other than through User's account using User's Account Information. User agrees not to use or launch any automated system, including, without limitation, "robots," "spiders" or "offline readers," that accesses the Software in a manner that sends more request messages to Noble or the Software in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. User agrees not to collect or harvest any personally identifiable information, including Account Information, from the Software or Noble, nor to use the communications systems provided by the Software for any commercial solicitation.
User Content and User Conduct
a. User Content. The Software allows Users to upload, post, provide, transmit, revise, comment and otherwise transfer (collectively, "post") content selected by the applicable User (the "User Content"). User Content includes, without limitation, text, comments, messages, information, communications, data, graphics, articles, photographs, images, illustrations, recordings, software and audio and video clips posted by Users. Because User Content is selected and posted solely by Users, Noble does not have any control over such User Content. Sole responsibility for the User Content, and the consequences of posting such User Content, remains with the User posting such User Content. Noble does not guarantee any confidentiality or privacy with respect to any User Content. Noble does not endorse any User Content or any opinion, recommendation or advice expressed therein.
b. Inaccurate Content. All User Content originates from Users, and as such, is beyond the control of Noble. Noble neither initiates the posting of such User Content nor monitors the specific content or accuracy of the User Content being posted. Without limiting the generality of any other provision of this Agreement, Noble shall have no responsibility for or liability related to the accuracy, content, currency, completeness or delivery of the User Content provided by any User. User is responsible for the accuracy, content, currency, completeness and delivery of the User Content posted by such User, and User warrants that the User Content posted by User is accurate, current and complete. User shall indemnify Noble for any and all losses or damages Noble may incur regarding or related to the accuracy, content, currency, completeness or delivery of the User Content pursuant to the indemnification provisions of this Agreement.
c. Submissions. Any suggestions, ideas, notes, drawings, concepts or other purportedly original or novel conceptions or theories of any kind submitted to Noble (collectively, "Ideas") shall be deemed, and shall remain, the sole and exclusive property of Noble. None of the Ideas shall be subject to any obligation of confidence on the part of Noble, and Noble shall not be liable for any use or disclosure of any Ideas. Without limiting the foregoing, Noble shall exclusively own all now known or hereafter existing rights to the Ideas of every kind and nature throughout the universe and shall be entitled to unrestricted use of the Ideas for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Ideas. User represents and warrants that such Ideas do not violate the intellectual property or other rights of any third party, and shall indemnify Noble according to the indemnification provisions of this Agreement for any allegation of such a violation. User hereby grants to Noble a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display any message posted in or using the Software, or in any e-mail or other communication sent by User to Noble (in whole or in part), and to incorporate it in other works in any form, media or technology now known or later developed throughout the universe. User understands that it has certain reporting obligations under the Beta Test License, and that such reports and the information contained therein are subject to this subsection.
d. Community Standards and Conduct. User understands that by using the Software and viewing the User Content, User may be exposed to User Content that is offensive, indecent or otherwise objectionable or inappropriate. As Noble does not control or monitor the User Content posted using the Software, under no circumstances will Noble be liable in any way to User or any third person for any User Content, including, without limitation, for any loss or damage of any kind incurred as a result of use of or exposure to the User Content. User agrees not to use the Software to or otherwise:
i. upload, post, email or otherwise transmit any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, slanderous, vulgar, obscene, pornographic, profane, indecent, sexually explicit, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable or intended to offend any person based on a person's race, ethnic heritage, national origin, sex, sexual orientation or preference, age, physical or mental illness or disability, marital status, employment status, housing status, religion or other characteristics as may be defined by applicable civil rights laws or that is otherwise objectionable to Noble in its sole discretion;
ii. harm minors in any way;
iii. impersonate any person or entity, including, but not limited to, a Noble employee or representative, moderator, guide or host or falsely state or otherwise misrepresent its affiliation with a person or entity;
iv. forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Software;
v. upload, post or otherwise transmit any User Content that User does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
vi. upload, post or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
vii. upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," multi-level marketing opportunities, franchises or any other form of solicitation;
viii. upload, post or otherwise transmit any material or User Content that contains software viruses or any other malicious code, files or programs designed to interrupt, disrupt, destroy, damage or limit the functionality of any computer software or hardware or telecommunications equipment or violate the security of any computer network, crack passwords or security encryption codes or otherwise attempt to gain unauthorized access to any other computer system;
ix. attempt to cause the traffic levels of the Software or other networks to rise without reason or for malicious purpose, including, without limitation, through transmission of large files to people for malicious purposes, "mailbombing," transmissions intended to raise the costs of another's access through excessive traffic levels, denial of service or similar attacks, repeatedly sending the same content to another person for the purpose of harassment or otherwise causing an unreasonable increase in traffic levels or usage of the Software as solely determined by Noble;
x. disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other Users of the Software are able to type or otherwise act in a manner that negatively affects other Users' ability to engage in meaningful exchanges;
xi. interfere with or disrupt the servers or networks connected to the Software, or disobey any requirements, procedures, policies or regulations of networks connected to the Software;
xii. intentionally or unintentionally violate any applicable local, state, national or international law;
xiii. "stalk," harass, threaten invade the privacy of or engage in predatory behavior towards another User of the Software or any other person; or
xiv. collect, store or use personal data about other Users.
User's privilege to use the Software depends on User's compliance with the guidelines set forth above. Noble may revoke User's privileges or take any other appropriate measures to enforce these guidelines if violations are brought to its attention. User acknowledges that by providing User with the ability to post User Content, Noble and the Software are acting as a passive conduit for such distribution, and Noble is not undertaking any obligation or liability relating to any User Content posted or activities undertaken utilizing the Software.
4. Intellectual Property
a. Software. The Noble Intellectual Property (as defined below) is the valuable, confidential property of Noble and its licensors. Such Noble Intellectual Property is protected by international intellectual property laws, including, without limitation, U.S. copyright and patent laws. User may use the Software as permitted herein and may not otherwise modify, adapt, translate, or create derivative or collective works based on the Software without the prior written consent of Noble. As between the parties, Noble owns all right, title, and interest in and to the Software, with the exception of the User Content, and including, without limitation, all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative or collective works based thereon and all documentation thereto, all copyrights, trademarks, trade secrets, patents and goodwill therein, and all images, photographs, illustrations, graphics, audio and video created by or for Noble therein (collectively, the "Noble Intellectual Property").
b. User Content. User shall be solely responsible for the posting of User Content. In connection with the User Content, User affirms, represents and warrants that User owns or has the necessary licenses, rights, consents and permissions to use and authorize Noble to use all proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Software. User retains all ownership rights in User Content. By posting User Content to the Software, User hereby grants Noble a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, modify, edit, adapt, publish, translate, incorporate, prepare derivative and collective works utilizing, display and perform the User Content in any form, medium or technology now known or later developed throughout the universe. In addition, User hereby waives (or warrants that the owner of such User Content has expressly waived) any and all "moral rights" in the User Content as to any of the foregoing rights and licenses granted to Noble. Noble does not permit infringing activities or infringement of intellectual property rights using its Software, and Noble will remove or disable all User Content or other content if properly notified that such User Content or other content infringes on another person's intellectual property rights. Noble reserves the right to remove or disable User Content without prior notice.
c. Trademarks. "Noble," "neemee," "CultureWaves," "Tide Reports," "Q-Update," "CustomWave," "RipTide," "WaveWatch," "TidalWave," "CultureTour," "Idea Harvest," and any logos relating to the foregoing are trademarks or service marks of Noble and its licensors (collectively, the "Noble Trademarks"). All other trademarks, service marks and logos used on the website or through the Software are the trademarks, service marks or logos of their respective owners.
d. Use of Intellectual Property. User may not copy, reproduce, republish, store, upload, post, transmit, analyze, adapt, reformat, print, distribute, commercially exploit or publicly display the Noble Intellectual Property, the Software, the Noble Trademarks or the Confidential Information (as defined below) or any portion thereof in any manner whatsoever without the prior written consent of Noble. User may not remove, reproduce, alter, use, display, modify, copy or obscure any copyrighted material, trademark, servicemark, legal or other proprietary notices in or on any portions of the Software, the Intellectual Property, the Noble Trademarks, the Confidential Information or any User Content or any portion thereof.
5. Payment and Fees
a. Payment. User shall pay to Noble for use of the Software the price and any other fees or expense on the terms and as set forth in the applicable Purchase Schedule agreed to by the parties (collectively, the "Fees"), if any. In the event User's access to the Software is granted pursuant to a Beta Test License, User agrees to test and provide such reports and information set forth in the Beta Test License and that Noble may reasonably request during the term of the Beta Test License.
b. Collection and Taxes. User shall be responsible for and shall pay Noble all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon ("Taxes"), whether imposed now or hereinafter by any governmental entity. User agrees to pay interest at the rate equal to the lesser of 1.5% per month, or the maximum rate allowed by applicable law, on any outstanding balance, together with costs of collection, including attorneys' fees and costs. In the event User fails to pay any amount when due, Noble may immediately suspend User's access to the Software or terminate this Agreement.
6. User Representations
7. Confidential Information
By virtue of this Agreement, User may have access to information that is confidential to Noble ("Confidential Information"). Noble's Confidential Information shall include, but not be limited to, any documents, materials or content authored, owned or licensed by Noble and made available by Noble through the Software, the Software, documentation, any User submissions, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, terms and pricing, and any information clearly identified in writing or which, by its nature, should reasonably be known by User at the time of disclosure to be confidential. In the event Confidential Information is required to be disclosed by law or other governmental authority, User shall not be prohibited from disclosing such information by this Section provided that User shall first give prompt notice to Noble to allow Noble to make a reasonable effort to obtain a protective order restricting or limiting the disclosure of the Confidential Information to the extent possible. User acknowledges that Noble's Confidential Information constitutes valuable trade secrets and agrees that it shall use Noble's Confidential Information solely in accordance with the provisions of this Agreement and shall not use or disclose, or permit to be used or disclosed, the same, directly or indirectly, to any third party without Noble's prior written consent. User shall safeguard Noble's Confidential Information from unauthorized use and disclosure using measures that are equal to the standard of performance used by the institution of which User is an authorized representative to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care.
9. Infringement Notification
a. Copyright owners or agents thereof may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") if such owners or agents believe that any User Content or other content infringes upon their copyrights by providing Noble's Copyright Agent (as defined below) with the following information in writing:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
iv. Information reasonably sufficient to permit the service provider to contact to person making the statement, such as an address, telephone number, and, if available, an electronic mail;
v. A statement that the copyright owner or agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the person making the statement is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
b. Noble's designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, c/o Noble Entura, LLC, 2215 West Chesterfield Blvd., Springfield, MO 65807; email: email@example.com; fax: 417-875-5038. Copyright owners and agents acknowledge that failure to comply with all of the requirements of the foregoing may result in an invalidity of the DMCA notice.
c. Counter-Notice. If User believes that the User Content that was removed (or to which access was disabled) is not infringing, or that User has the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the User Content, User may send a counter-notice containing the following information to the Copyright Agent:
i. User's physical or electronic signature;
ii. Identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
iii. A statement that User has a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
iv. User's name, address, telephone number, and e-mail address, a statement that User consents to the jurisdiction of the federal court in Greene County, Missouri, and a statement that User will accept service of process from the person who provided notification of the alleged infringement.
d. If a counter-notice is received by the Copyright Agent, Noble may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the User providing such User Content, the removed User Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Noble's sole discretion.
This Agreement is effective upon User's acceptance as set forth herein and shall continue in full force until terminated as set forth herein or according to the terms of the applicable Purchase Schedule or Beta Test License. This Agreement will terminate automatically without notice from Noble if User fails to comply with any provision of this Agreement. Upon termination, User shall terminate use of the Software and destroy any copies of the Software in User's possession. Except as expressly granted under a provision of this Agreement, User shall not be entitled to any refund on any portion of any Fees or other charges paid in connection with this Agreement. Noble reserves the right to discontinue or suspend any aspect of or access to the Software at any time. Noble will terminate a User's access to the Software if, under appropriate circumstances, such User is determined to be a repeat infringer of another's intellectual property or other rights.
11. Disclaimer of Warranties
THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SOFTWARE IS AT USER'S SOLE RISK. NOBLE DOES NOT WARRANT THAT USER'S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES NOBLE MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY USER CONTENT OR AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SOFTWARE. NOBLE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING, TITLE, NON-INFRINGEMENT OR TIMELINESS, IN RELATION TO THE SOFTWARE. USER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON THE SOFTWARE OR ANY INFORMATION, USER CONTENT OR CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION. IF FOR ANY REASON THE FOREGOING EXCLUSIONS ARE HELD UNENFORCEABLE, THEN ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.
12. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL NOBLE OR ANY OF ITS AFFILIATES OR SUBSIDIARIES BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER'S USE OR INABILITY TO USE THE SOFTWARE, ANY CHANGES TO OR INACCESSIBILITY OF THE SOFTWARE, ANY INACCURACY OR INCOMPLETENESS OF THE USER CONTENT OR INFORMATION CONTAINED IN THE SOFTWARE, ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SOFTWARE OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SOFTWARE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. IN NO EVENT SHALL NOBLE OR ANY OF ITS AFFILIATES OR SUBSIDIARIES' TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL PURCHASE PRICE AND/OR FEES PAID, IF ANY, BY USER TO NOBLE HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE SOFTWARE, USER'S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SOFTWARE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 10.
NOBLE IS NOT AN INSURER WITH REGARD TO PERFORMANCE OF THE SOFTWARE. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE SOFTWARE AT THE SPECIFIED PRICE OR PURSUANT TO A BETA TEST. USER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY NOBLE CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
USER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NOBLE SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING IS BORNE SOLELY BY USER.
User agrees to indemnify, hold harmless and defend Noble, any of its affiliates or subsidiaries and any members, officers, employees and agents of the foregoing, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement or User's violation of the terms and conditions thereof; (b) User's use of the Software, including any data, User Content, communication or work transmitted or received by User; (c) any unacceptable use of the Software by User or through User's account, including, without limitation, any statement, data or User Content posted, made, transmitted or republished by User which is prohibited as unacceptable under this Agreement; (d) any intentional or negligent act or omission of User; (e) User's violation of any third party rights, including, without limitation, any intellectual property or privacy right; and (f) any claim that any User Content posted by User caused damage to a third party.
a. Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Amendment. Noble shall have the right, at any time and without notice, to add to or modify the terms of this Agreement concerning the use of the Software, simply by delivering such amended terms to User by email at the address provided to Noble by User or by posting such amended terms via the Software. User's access to or use of the Software after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms. User acknowledges that User has a responsibility to periodically review this Agreement for updates, modifications and amendments that govern User's use of the Software.
c. Assignment. User shall not assign any of its rights, duties or obligations under this Agreement without the prior written consent of Noble, and any attempted assignment or delegation without such consent shall be void and of no effect.
d. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
e. Audit. Upon reasonable advanced notice, Noble may enter upon User's premises during regular business hours to audit User's use of the Software. User agrees to cooperate with Noble's audit and provide reasonable assistance and access to information. User agrees to pay within thirty (30) days of written notification an amount equal to the sum of (a) all license fees which Noble would have received if User's excess unlicensed use of the Software had been licensed, (b) interest on such fees from the date such additional fees should have been paid at the rate of eighteen percent (18%) per annum or the maximum permitted by law, whichever is lower, and (c) all costs and expenses incurred by Noble in conducting such audit. User shall be responsible for any of User's costs incurred in cooperating with any such audit.
f. Export Restrictions. User acknowledges that the export laws and regulations of the United States and other relevant local export laws and regulations apply to the Software and other technical data provided to User under this Agreement. User further agrees that neither the Software nor any such technical data, nor the direct product thereof, will be exported outside the country in which this license to use the Software is initially sold or delivered without the prior written consent of Noble. User agrees that such export control laws govern User's use of the Software, and User agrees to comply with all such export laws and regulations (including, without limitation, "deemed export" and "deemed re-export" regulations). User further agrees and certifies that User will not export outside the country in which this license to use the Software is initially sold or delivered, directly or indirectly, the Software or any data, information and/or materials resulting from services provided to User in connection with User's license of the Software (or any direct product thereof) in violation of such laws or regulations, and User will not use the Software or such other data, information or materials for any purpose prohibited by such laws or regulations, including, without limitation, nuclear, chemical or biological weapons proliferation or development of missile technology. Without limiting the generality of the foregoing, the Software may not be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country to which the United States has embargoed goods or (b) to anyone on the United States Treasury Department's list of Specially Designated Nations, the United States Treasury Department's list of Specially Designated Nationals, Terrorists and Narcotics Traffickers, the United States State Department's Proliferation Entity List or the United States Commerce Department's Table of Denial Orders. User agrees, warrants and certifies that User is not located in, under the control of or a national or resident of any such country nor is User on any such list.
User acknowledges that some countries (including, without limitation, Belgium, China (including Hong Kong), France, India, Indonesia, Israel, Russia, Saudi Arabia, Singapore and South Korea) have restrictions on the use of encryption within their borders or the import or export of encryption even if only for temporary personal or business use, and User further acknowledges and agrees that User is ultimately responsible for complying with any and all government export and other applicable laws and that Noble has no further responsibility after the initial license to User within the country in which this license to the Software is originally sold or delivered.
This Agreement is subject to the receipt of any approvals and consents as may be required by the United States and foreign governmental agencies and authorities, including, without limitation, the export control laws and regulations of the United States. Noble shall have no liability to User under this Agreement as a result of the refusal of the United States or foreign governmental agencies to issue any such necessary approvals or consents for the export of the Software or other technical data provided to User under this Agreement.
g. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
h. Notice. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either party's last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by email. Unless otherwise provided in this Agreement, all notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
i. Law. This Agreement shall be treated as though it were executed and were to be performed in Greene County, Missouri, USA. User agrees that the Software shall be deemed solely based in Missouri, and that the Software, including the Noble web site through which access is provided, shall be deemed passive and does not give rise to personal jurisdiction over Noble, either specific or general, in jurisdictions other than Missouri. The rights and obligations under this Agreement shall not be governed by the United Nations Convention on Contracts or the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which are expressly excluded. This Agreement shall be interpreted in accordance with and governed by the laws of the State of Missouri, USA, without regard to its internal provisions governing conflicts or choice of law.
j. Forum. All actions, claims or disputes arising under or relating to this Agreement shall be brought exclusively in the federal or state courts located in or serving Greene County, Missouri, USA. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts located in or serving Greene County, Missouri, USA. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts located in or serving Greene County, Missouri, USA and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court located in or serving Greene County, Missouri, USA.
k. Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts located in or serving Greene County, Missouri, USA.
l. Action. No action arising under this Agreement may be brought by User more than one (1) year after the cause of action has accrued.
m. Equitable Relief. The parties agree that breach of the provisions of this Agreement, including, without limitation, the unauthorized use or duplication of the Software, would cause irreparable harm and significant injury to Noble which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Noble has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Noble may have for User's breach of this Agreement.
n. Attorney's Fees. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
o. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
p. Force Majeure. Neither party shall be responsible or liable for failure to fulfill its obligations under this Agreement (except for payment of any fees) due to any major unforeseeable event beyond the control of, and not caused by the fault or negligence of, such party or its agents, including, without limitation, an act of God, fire, earthquake, flood, explosion, action of the elements, war invasion, terrorism, insurrection, riot, mob violence, sabotage, inability to procure equipment, facilities, materials or supplies in the open market, failure of power, failure of transportation, failure of telecommunications systems or infrastructure, strike, lockout, action of labor unions, condemnation, requisition, law or order of government, civil or military authorities; provided that the party failing to perform in such event shall promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.
q. Survival. The terms and provisions of Sections 3-8 and 10-14, inclusive, shall survive any termination or expiration of this Agreement.
r. Entire Agreement. This Agreement, in conjunction with any master agreement, Purchase Schedule entered into between the parties or Beta Test License, constitutes the complete and exclusive statement of the agreement between the parties with respect to the Software and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Software.