Novade Terms of Service

Last update: 3rd September 2021 | Archived versions

The Agreement governs access to and use of the Novade Services. Novade Services include Subscription(s) to Novade web and mobile applications and Professional Services such as customisation, consulting, platform configuration, support, system integration or training.

The Agreement constitutes a binding contract between Novade and the Customer identified in the Order. The Customer must agree with these terms of service in order to benefit from the Services. If the Customer does not agree with all or part of these terms, the Customer must not use the Services.

The individual accepting these terms represents that he has the right and authority to legally bind the Customer to enter into the Agreement.

1. Provision of Services

Services access and availability. Each User is assigned a unique ID by the Administrator or by Novade, as per Customer’s instructions and under Customer’s responsibility. The ID is required to access the Subscription.

Novade will use commercially reasonable efforts to make the Subscription available at all times, except for scheduled maintenance, update and any unavailability caused by a Relief Event.

Modifications. Novade may roll out Releases from time to time. If Novade changes the Services in a manner that materially reduces their functionality, Novade will inform the Customer and will take the necessary measures to limit this disturbance.

Security. Novade shall implement all physical and logical security measures described on Novade Website. The Customer hereby acknowledges that such measures are suitable with regard to the type of use it intends to make of the Services as well as the nature of the relevant Customer Data.

Free trial. If Customer subscribes for a free trial, Novade will make Services available to Customer on a trial basis, free of charge, until the earlier of (i) the end of the free trial period for which Customer registered to the applicable Services, or (ii) termination of the free trial period by Novade in its sole discretion. Notwithstanding anything contained in these Terms, during the free trial period, Services are provided “AS IS”.

During the free trial period, use of the Services are limited to non-commercial evaluation purposes with no rights to make available or distribute the Services to any third party.

Novade makes no commitments during the trial period regarding any features, functions, service levels or data.

NOVADE MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NEITHER IDEMNIFICATION OBLIGATIONS NOR LIABILITY WITH RESPECT TO FREE TRIAL SERVICES, UNLESS SUCH EXCLUSION IS NOT ENFORCEABLE UNDER THE APPLICABLE LAW IN WHICH CASE NOVADE’S AGGREGATE LIABILITY SHALL BE LIMITED AS SPECIFIED IN THE SECTION “LIMITATION OF LIABILITY” OF THE AGREEMENT.

2. Customer Responsibilities

Compliance. The Customer and the Users must use the Services in compliance with the Agreement and all applicable laws. The Customer is fully responsible for all Customer Data, works and actions generated by, conducted on or though the Services. The Customer is responsible for User’s compliance with the Agreement and for Services’ access and use by the Users. The Customer is fully liable for any use, abuse or fraud that may be committed by Users when using the Services.

Novade exercises no control over, nor monitors, and accepts no responsibility for, any Customer Data, works or actions used or produced when using the Services.

Equipment and ancillary services. The Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to access and use the Services. The Customer is responsible for ensuring that such equipment and ancillary services are compatible with the Services. The Customer is responsible for the use, maintenance and security of such equipment, and shall ensure that the equipment meets the minimum configuration required to access and use the Services at all times.

Administration of the Services. Customer may designate Users as Administrators. Administrators may have the ability to monitor, restrict, or terminate access to User’s Services accounts. Novade is not responsible for the internal management or administration of the Services, or for any actions taken by the Administrators. Customer is responsible for such Administrator accounts and shall ensure that the Administrators’ use of the Services complies with the Agreement and all applicable laws.

Usage restrictions. Customer will not, and shall ensure that its Users and Administrators will not:

• breach or otherwise circumvent any security or authentication measures;
• use the Services or the Properties in any manner that could damage, disable or impair the Services or the Properties;
• interfere with or disrupt the Services for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
• violate the law in any way, including storing or sharing content that’s fraudulent, defamatory, misleading, or that violates the privacy or infringes the rights of others;
• permit direct or indirect access to the Services in a way that circumvents a contractual usage limit;
• copy, sell, resell, lease, license, distribute, modify, translate, prepare derivative works from the Properties or Services or any part, feature, function or user interface;
• (attempt to) decompile, reverse engineer, disassemble or otherwise (attempt to) derive source code from the Properties and/or (attempt to) create a substitute or similar service through use of or access to the Services;
• remove any product identification, proprietary, copyright or other notices included on the Properties or the Services;
• allow any person under the age of 16 to use the Services.

Unauthorized use & access. Customer will prevent unauthorized use of the Services by the Users and will terminate any unauthorized use of or access to the Services. Customer will promptly notify Novade of any unauthorized use of or access to the Services. Novade is not responsible for any damages or losses resulting from any breach of security caused by Customer’s or User’s failure to maintain the confidentiality of the User IDs. The Customer shall be responsible for any acts, breaches or misuse of the Services by its Users.

Breach. In the event of a breach of any of the obligations referred to herein, Novade shall have the sole and absolute discretion to limit, suspend or terminate access to the Services, without recourse to the courts and with immediate effect.

3. Proprietary rights and licenses

Reservation of Rights. Except as expressly set forth herein, the Agreement does not grant (a) Novade any Intellectual Property Rights in Customer Data and (b) Customer any Intellectual Property Rights in the Services, in the Properties or in Novade trademarks and brand features.

Limited permission. The Customer is the sole owner of Customer Data. Customer grants Novade only the limited rights, and permissions to the Customer Data to the extent that is reasonably necessary for Novade to offer the Services. The Customer also grants such limited rights and permissions to any such third parties Novade works with to provide the Services (e.g., hosting stored Customer Data). The Customer freely licenses to Novade the right to use, copy, display and any other relevant rights on the Customer Data, for the term of the Agreement, on a worldwide basis, solely for performing the Services.

Confidentiality. Each Party will take all reasonable precautions to protect the other Party’s Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information and shall not use any Confidential Information of the other Party for any purpose outside the scope of the Agreement. Notwithstanding the foregoing, a Party may disclose Confidential Information to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and have executed a reasonably protective non-disclosure agreement with the disclosing Party.

Limited software license. Some of the Subscription Services require the Customer to download and install Software. Novade grants to the Customer and Users a limited, non-transferable, non-exclusive, revocable license to use the Software, solely to access the Subscription.

License to use feedback. Novade may (but shall not be obliged to) use, modify, and incorporate into its software and Services any suggestion, enhancement request, correction or other feedback provided by Customer and Users. By providing the feedback, the Customer and/or User disclaims any and all rights to the feedback and agrees that Novade shall have the right to freely use, modify and incorporate such feedback without any legal obligation to the Customer and/or User.

4. Protection of Customer Data

Compliance with Data Protection Laws. Where applicable, Novade and the Customer shall comply with the necessary Data Protection Laws, regulations or directions of the relevant jurisdiction(s) and any timelines, procedures or requirements prescribed thereunder shall apply to the extent necessary. To operate and provide the Services, Novade collects certain information about the Customer and Users. Novade uses and retains such information in accordance with the Novade Privacy Policy.

Sharing of data. Novade may collect and analyse certain information regarding the use of Subscription. Information collected may include but is not limited to frequency of access, type and duration of field processes managed with the application, type of browser and operating system, etc. This information is logged to monitor adoption of the Services, help diagnose technical problems, administer the Services, and improve the quality of the Services. Customer hereby authorizes Novade to anonymize Personal Customer Data and to use the results of such exercise as specified in this article.

Novade may also use this information to carry out statistics, benchmarking reports or predictive modelling regarding subjects such as the average time required to conduct a field process or non-compliance average rates. Novade may share these statistics with other customers or third parties in an aggregated and anonymous manner. The Customer may opt out of sharing such information. In such a case, the Customer will not have access to such statistics, benchmarks or predictive modelling.

Third party applications: Novade Services may contain links to third party applications, including some that have different privacy and security policies and practices than Novade. Novade makes no representations or warranties about the policies and practices of such applications, and shall not be responsible for such applications.

Third-party products and services: Novade Services is designed to integrate with, or be interoperable with certain third-party products and/or services. Any such access and use of third-party products and/or services is governed solely by the terms and conditions of the third-party provider, and Novade does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such third-party products and/or services, including, without limitation, the technology itself, the availability of, or any content made available by the third-party provider. Customer agrees to and irrevocably waives any claim against Novade with respect to such third-party products and/or services. Moreover, Customer understands and agrees that in connection with any access or use of the party products and/or services, it is relying on the privacy practices, the data security processes and/or other policies of such third-party providers.

Data processing. Customer shall, in its use of the Services, at all times process personal data and provide instructions for the processing of personal data in compliance with the Data Protection Laws and with the article “Data protection addendum” of the Terms. Customer is solely responsible for the accuracy, quality and legality of the personal data provided to Novade, including data provided indirectly through the use of the Services, by or on behalf of Customer (the “Customer Personal Data”). Customer shall not provide or make available to Novade any Customer Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Novade from all claims and losses in connection therewith

In the case of Customer Data which is subject to EU laws, the article “Data Protection Addendum” of the present terms shall apply and Novade shall process Customer Personal Data for the purposes set forth in the Agreement and in accordance with the Data Protection Laws, as specified in the article “Data protection addendum” of the present terms.

Limitation. Customer acknowledges that the Services have not been specifically designed to process or manage Sensitive Data and, accordingly, Customer assumes responsibility for collecting and processing this data in compliance with Data Protection Laws. Novade hereby specifically disclaims any liability that may result from use by the Customer of the Services to collect, process or manage Sensitive Data. “Sensitive Data” means personal data submitted to specific obligations due to their sensitivity such as data concerning health, or personal data relating to criminal convictions and offences.

5. Disclaimers

Warranties. Novade strives to provide great Services, but there are certain things that Novade cannot guarantee. TO THE EXTENT NOT PROHIBITED BY LAW, NOVADE AND ITS AFFILIATES (AND ASSOCIATED SERVICE PROVIDERS) (A) MAKE NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED, RELATED TO OR ARISING IN ANY WAY OUT OF THE AGREEMENT OR OF THE PROVISION OF THE SERVICES HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY COURSE OF DEALING OR PERFORMANCE, OR BY CUSTOM OR USAGE IN THE TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) DO NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

Service unavailability. The Customer acknowledges that Novade does not control the transfer of data over communications facilities, including the internet, and that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Novade is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Service interruptions. The Customer acknowledges that the Services may be temporarily unavailable for scheduled maintenance or because of other causes beyond Novade control. Novade will not be liable for any such unavailability, but Novade shall use reasonable efforts to provide advance notice of any scheduled disruption.

Relief Event. Novade shall not be liable should the Customer not be able to access or use the Services satisfactorily, and/or should Novade not be able to provide all or part of the Services accordingly with the Agreement, due to an event that is not under Novade’s control (a “Relief Event”), such as:

• a Force Majeure Event;
• any act or omission of Customer or any third party, including any delay or failure to promptly comply with its obligations;
• shortcomings of other parties, such as difficulties with services or devices under third party provider’s control or responsibility;
• difficulties with the Services due to changes in Customer’s systems or items;
• errors that the Customer may make (including third-party agents thereof) or those of a User managing or using the Services;
• any inaccurate or incomplete data, information or documentation provided by Customer;
• malfunctions of any kind whatsoever in the Customer’s or User’s facilities.

Indemnity. The Customer acknowledges that in the performance of its contractual obligations, Novade cannot assume or be exposed to the risks associated with the Customer’s business. THE CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD NOVADE AND ITS EMPLOYEES, SUBSIDIARIES, AGENTS AND REPRESENTATIVES HARMLESS FROM AND AGAINST ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO (A) THE USE OF THE SERVICES, AND/OR (B) CUSTOMER DATA, INCLUDING ANY LIABILITY OR EXPENSE ARISING FROM ALL CLAIMS, LOSSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), SUITS, JUDGMENTS, LITIGATION COSTS AND ATTORNEYS’ FEES, OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED.

For purpose of clarity, it is hereby specified that in case of legal action instigated by a third party against Novade as a result of (i) a non-compliance or breach of the Agreement from the Customer, or (ii) use of the Services by the Customer, or (iii) use by Novade of the Data Customer or any other elements or information the Customer has provided or made available with regard to the Services, the Customer shall indemnify Novade and bear the costs of defense of Novade, as well as settle the amounts and costs that Novade would be ordered to pay.

6. Limitation of Liability

Liability principles. Customer Data and more broadly any content integrated or processed in or with the Services by the Customer or a User, is the sole responsibility of the Customer. Novade shall only be held liable in case of breach by Novade, proven by the Customer, of its contractual obligations in the execution of the Agreement. Novade shall only be liable for damages resulting from breaches directly and exclusively under its responsibility. Novade shall be relieved of liability for any failure to provide or delay in providing any of the Services arising out of or in connection with a Relief Event.

Limitation on Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL NOVADE, ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF NOVADE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.

Limitation on amount of liability. IN NO EVENT SHALL NOVADE TOTAL AGGREGATE LIABILITY, FOR THE TERM OF THE AGREEMENT, WITH RESPECT TO ANY SERVICES INCLUDING THOSE PROVIDED DURING FREE TRIAL PERIOD, FOR ALL CLAIMS AND DAMAGES ARISING FROM NEGLIGENCE, BREACH OF AGREEMENT, WARRANTY OR INDEMNITY, OR ANY OTHER LEGAL THEORY OF LIABILITY OR OTHERWISE, UNDER OR IN CONNECTION WITH THE AGREEMENT, EXCEED THE AMOUNTS ACTUALLY PAYABLE OR PAID BY THE CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

General. No claim shall be made by the Customer against Novade more than one year after the date on which the facts constituting the claim were discovered or should have been discovered.The Customer has a duty to mitigate the damages that would otherwise be recoverable from Novade pursuant to the Agreement by taking appropriate and reasonable actions to reduce or limit the amount of such damages.For the avoidance of doubt, the provisions of this Article will survive the expiration or termination of the Agreement for any reason..

7. Intellectual property warranty

Indemnification. Novade shall indemnify and hold the Customer harmless from and against any third party actions and/or proceedings relating to any item used by Novade to provide the Services or provided by Novade to the Customer within the performance of the Services, based on an infringement of intellectual property rights, and shall bear, subject to the provisions of the article “Limitation of liability”, all related definitive damages and indemnities which may result from such claims and/or actions and/or proceedings in relation to the Agreement, provided that: (i) the Customer notifies Novade in writing of the claim, action or proceeding within fifteen (15) calendar days of the Customer being aware of the claim, action or proceeding and provides Novade with all information for defending its interests; (ii) the Customer agrees that Novade shall have sole and exclusive control of the defense of the claim, action or proceeding should Novade so desire and (iii) the Customer makes no admission or statement of any kind whatsoever that may prejudice Novade’s defense. The indemnification referred to in this section is limited to the payment by Novade of all damages and costs finally awarded for the claim, or settlements costs approved in writing by Novade.

Changes in the Services or termination. If the Services and/or Deliverables infringe a third party’s intellectual property right or if Novade reasonably believes the Services and/or the Deliverables are likely to infringe a third party’s intellectual property right, Novade will promptly and at its own expense: (i) procure the right for the Consumer to continue using the Services and/or the Deliverables; or (ii) replace or modify the Services and/or the Deliverables to make their use non-infringing.

If Novade cannot do either of the above, Novade or the Customer will have the right to terminate automatically and without judicial formalities the Agreement and Novade will provide a pro rata refund of the Services fees paid by the Customer for the period following the termination of the Services.

General. The preceding provisions set Novade’s liability limits with respect to the Customer with regard to intellectual property rights infringement. Therefore, Novade provides no guarantee other than that described in the present article regarding any and all forms of intellectual property infringement claims, and shall have no further liability beyond what is set out in the present article.

8. Professional Services

In the event the Customer orders any Professional Services, the nature, details and duration of the Professional Services are described in the Order.

Performance of Professional Services. For Professional Services that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the Order, Novade shall provide Customer with written notice (“Completion Notice”). Thereafter, Customer shall have five (5) working days after the date of the Completion Notice to provide Novade with a written notice describing any deliverables that have not been (properly) provided or milestones not met. The Professional Services shall be deemed complete and the deliverables accepted absent Customer’s timely written notice of any deliverables not (properly) provided or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for Professional Services that are time and materials based.

Professional Services Deliverables. Novade will own and retains all rights, title and interest in and to the any training materials or other tangible materials provided by Novade to Customer as part of the Professional Services (each, a “Deliverable”). Subject to these Terms, Novade grants Customer a royalty free, limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely for Customer authorized use of the Novade Service during the Agreement term. Nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise used by Novade to develop the Deliverables and to the extent such elements are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer on the same terms as the Deliverables.

“Custom developments” refer to new and discrete software and documentation developed by Novade specifically to address Customer’s specific needs and incorporated into the Services, with access and usage exclusively limited to the Customer. Novade undertakes not to share the custom developments to another customer, the Customer being the sole and exclusive beneficiary of these custom developments.

Professional Services Warranty. For Professional Services only, Novade warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with industry standards and in accordance with the scope of services outlined in the Order. Customer acknowledges that the ability to successfully perform the Professional Services is dependent upon Customer’s provision of timely information, access to resources, and participation as outlined in the Order.

9. Fees

Subscription fees. The Customer shall pay the Subscription fees set forth in the Order, pursuant to the billing terms set forth in the Order. No refund will be made should the Customer not use the Subscription or not use them for the volumes ordered and paid for.

Professional Services fees. The Customer shall pay the Professional Services fees set forth in the Order, pursuant to the billing terms set forth in the OrderAny Professional Services performed for the Customer but not specifically mentioned in the Order will be charged to the Customer, in accordance with another agreement between the Parties if applicable or in accordance with the applicable rates at the date of delivery of the Professional Services.

Payment terms. Unless otherwise provided for in the Order, all invoices must be paid by the Customer in full within thirty (30) calendar days after the date of issuance of the applicable invoice. If the Customer contests part of an invoice, it will only be entitled to withhold payment of this part until the dispute on this part has been solved. In no case it will be entitled to suspend payment of the non-contested parts of the invoice.

Taxes. Unless otherwise provided for in the Order, all prices mentioned exclude taxes and will be heightened by any prevailing rights or taxes on the billing date. The Customer is responsible for any taxes and the Customer will pay for the Services without any reduction for these amounts.

Late payment. In the event that the Customer fails to pay any undisputed amount within fourteen (14) calendar days of the due date for payment, Novade may forthwith suspend performance of its obligations or of the access to the Services or terminate the Agreement without incurring any liability whatsoever. Should such a decision be made by Novade, the sums due by the Customer for the contractual period will still be payable.

10. Term and termination

Effective date. The Agreement shall commence on the Effective Date and remains in effect as long as an Order is ongoing.

Professional Services term and renewal. The Professional Services will remain in effect from the Effective Date for the term specified in the Order. If Customer purchases Professional Services that are recurring, they will renew in accordance with the Subscription.

Subscription term and renewal. The Subscription shall start from the commencement date specified in the Order for the period specified in the Order (the” Subscription Period”). Either Party may elect to terminate the Subscription at the end of the current Subscription Period by providing notice on or prior to the date thirty (30) calendar days preceding the end of such Subscription term. Unless the subscription is so terminated, and with the exception of the Services subscribed on a trial basis, the Subscription will renew for a Subscription Period equivalent in length to the then expiring Subscription Period and on the Subscription fees that Novade then generally makes commercially available to subscribers of such Services in the same geography at the time subsequent Subscription commences.

Effect of Subscription termination. If a Subscription terminates, the corresponding rights granted by Novade to the Customer will immediately cease. Customer is responsible for exporting Customer Data before the end of the Subscription.

Order cancellation. No refunds or credits for Services fees or other fees or payments will be provided if the Customer elects to terminate the Agreement prior to the end of the contractual term or Period.

Termination for Breach. Either Novade or the Customer may terminate the Agreement if: (a) the other Party is in material breach of the Agreement and fails to cure that breach within thirty calendar (30) days after receipt of written notice or (b) the other Party ceases its business operations.

Consequences of termination. If the Agreement terminates, the rights granted by Novade to the Customer will cease immediately on the effective date of termination. Novade will have no obligation to maintain or provide Customer Data, unless legally required to do so.

11. General

Entire Agreement. The Agreement constitutes the entire agreement between the Customer and Novade. This agreement supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of the Agreement.

Revisions. Novade may revise from time to time parts of the Agreement such as the Terms of Use or the Privacy Policy. If a revision is determined by Novade, in its sole discretion, to be material, Novade will notify Customer. Other revisions may be posted to Novade Website, and the Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, the Customer and the Users agree to be bound by the revised Agreement, whether or not Novade has given any express notice of the revisions. If the Customer does not agree to the materially revised Agreement terms, the Customer may terminate the Services within thirty (30) calendar days of receiving notice of the change.

Force Majeure. Except for payment obligations, neither Novade nor the Customer will be liable for inadequate performance to the extent caused by a Force Majeure event.

Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Novade. Novade may not assign this Agreement without providing notice to Customer, except Novade may assign this Agreement or any rights or obligations under this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.

Third parties. The Customer authorises Novade to engage third parties to outsource parts of the Services. Novade may in this context communicate to third parties all the necessary information and elements. Notwithstanding the foregoing, Novade is and remains responsible for the proper performance of third parties’ obligations.

No third-party beneficiaries. Nothing in the Agreement, express or implied, is intended to confer to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.

Survival. Those provisions that by their nature should survive termination of the Agreement will survive termination of the Agreement. The articles which will survive the termination of the Agreement include the confidentiality clause in Article 3 and Articles 4 (Protection of Customer Data), 6 (Limitation of Liability), 7 (Intellectual Property Warranty) and 13 (Data Protection addendum).

Hierarchy of Documents. Unless otherwise specifically agreed to by the Parties, in the event of any conflict between the terms of the Order, the present Terms of Service, the Terms of Use and the Privacy Policy the order of precedence is as follows: (i) the Order; (ii) the present Terms of Service; (iii) the Terms of Use; and (iv) the Privacy Policy.

Export control. The Customer must comply with all domestic and international export laws and regulations that apply to the use of the Services.

Communications. Novade may use the Client’s name, trademarks, logo and contact details as well as a description of the Services provided, in its presentations, customer lists, case studies and other promotional or marketing materials, including, for example in press releases, brochures, reports, e-mails and electronic media.

English version control. This Agreement has been originally drawn up in the English language. In case of any discrepancies between the English text version of this Agreement and any translation, the English version shall prevail.

12. Parties identification, Governing Law and Dispute Resolution

Contracting Parties. The principal place of business (or country if no place of business is specified) of the Customer, as set forth in the Order, determines which Novade entity the Customer is contracting with for the Services and, consequently, determines the applicable law and jurisdiction, as per the table below. The Parties further agree that the principal place of business as set forth in the Order is determinative and final and shall not seek to challenge the applicable governing law or exclusive jurisdiction clause.

Dispute resolution. In the event of a dispute arising out of or in connection with the Agreement, the Parties undertake to set up a diligent, good faith attempt to resolve amicably all disputes in accordance with the following principles. In this respect, as soon as a Party considers there is a dispute with the other Party, it will summon a conference call meeting with representatives of both Parties in order to discuss possible settlement of the said dispute. Such meeting shall be summoned by email and shall take place within fifteen (15) calendar days of receipt of the said email by the recipient Party. Should, within the aforementioned 15-day time period, the dispute not be settled or the meeting not be held, then each Party will be free to submit the dispute to a court of competent jurisdiction. Notwithstanding the foregoing, the Parties hereby agree that a dispute regarding a breach of intellectual property rights or non-payment of an uncontested invoice shall not be subject to the above procedure.

If the Parties fail to settle a dispute in accordance with the dispute resolution process set forth in section “Dispute resolution” above, any dispute arising from or relating to the Agreement shall be submitted to the courts specified in the table above.

Governing law. The validity and interpretation of the Agreement and the legal relation of the Parties to it shall be governed by the applicable laws as specified in the table below.

13. Data protection addendum

The following provisions apply if the processing of Customer Data performed by Novade within the course of the Agreement is submitted to the regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016 (GDPR).

Novade shall:

• process Customer Personal Data solely for the purposes set forth in the Agreement;
• process Customer Personal Data only in accordance with the terms and conditions set forth in the Agreement and any other documented instructions provided by Customer. If Novade deems an instruction may violate any Data Protection Laws, Novade must inform Customer. Moreover, if Novade is instructed to transfer Customer Personal Data to a third country or an international organization, under the requirements of the Union or Member State law to which Novade is subject, the latter shall immediately inform the Customer of that legal requirement before processing, unless the law prohibits such information on important grounds of public interest;
• ensure that persons authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

Customer acknowledges and agrees that Novade may engage another processor (hereinafter “sub-processor”) to carry out specific processing activities. Novade shall notify in writing the Customer before engaging any modification pertaining to adding or replacing other sub-processors. This notice shall clearly indicate the processing activities carried out by the sub-processor, the identity and contact details of the sub-processor and the dates of fulfillment of the subcontracting agreement. Customer may object to such an engagement within ten (10) days of receipt of the aforementioned notice.

The sub-processor shall be subject to the obligations under the present Terms and to the Customer’s instructions. Novade must ensure that the sub-processor provides the same sufficient guarantees to implement appropriate and technical and organizational measures in such a manner that the processing will meet the requirements of the Data Protection Laws. Where the sub-processor fails to fulfill its data protection obligations, the initial processor remains fully liable to the Customer for the sub-processor’s performance of his obligations.

Customer shall, when collecting data, provide the information to the persons subject to the operations of data processing. To the extent possible, Novade shall provide Customer with reasonable cooperation and assistance with respect to Customer’s obligation to follow up on the data subjects’ requests. Where the data subjects submit requests to Novade to exercise their rights, Novade must forward these requests to the Customer.

Novade shall, without undue delay after becoming aware of a Client’s Personal Data breach, inform the Customer of such breach. This notice shall be supported by any useful documentation which may allow the Customer, when necessary, to notify the breach to the competent authority.

Any transfer of Customer Personal Data made by Novade from member states of the European Economic Area (EEE) to any countries which do not ensure an adequate level of data protection shall, to the extent such transfer is subject to such laws and regulations, be undertaken by Novade only if the latter has provided appropriate safeguards.

Novade shall provide Customer with reasonable cooperation and assistance where necessary for Customer to conduct (i) a data protection impact assessment and/or to demonstrate such compliance or (ii) a prior consultation with any supervisory authority, provided that Customer does not otherwise have access to the relevant information.

Customer shall be responsible for any costs and expenses arising from any such assistance by Novade.

Following completion of the Services, Novade shall delete the Customer Personal Data.

14. Definitions

In the Agreement, capitalized terms have the following meaning:

“Administrator(s)” means the Users who are conferred specific powers by the Customer, as specified in article “Administration of the Services” of the present Terms. The Administrator is a User.

“Agreement” means the set composed of, the Order, the present terms, the Terms of Use and the Privacy Policy.

“Confidential Information” means any non-public information of each Party hereto relating to its business activities, financial affairs, technology, marketing or sales plans that is disclosed to the other Party pursuant to the Agreement. With respect to the Customer, and without limitation, Customer Data, such as drawings, plans, reports, shall be considered Confidential Information. With respect to Novade, and without limitation, information on product roadmaps, product designs and architecture, technology and technical information, security audit reviews, business and marketing plans shall be considered Confidential Information. Confidential Information shall not include information that is already public knowledge otherwise than as a result of a breach of a party’s obligation of confidence under this Agreement.

“Customer” means the legal entity identified in the Order.

“Customer Data” means the files, data and various elements provided by the Customer and the Users for processing in the context of the Services.

“Data Protection Laws” means all applicable worldwide legislation relating to Personal Data protection which applies to the respective party in the role of processing Personal Data under the Agreement, as amended, consolidated or replaced from time to time.

“Deliverables” has the meaning as set forth in article “Professional Services Deliverables” of the present terms.

“Effective Date” means the commencement date specified in the Order.

“Force Majeure Event” means an event beyond the reasonable control of the person affected including, without limitation, strike, epidemic, lock out, labor dispute, war, terrorism, riot, civil commotion, malicious damage, accident, breakdown of plant or machinery, computer software, hardware or system failure, fire, extraordinary situations of natural and man-caused nature, including natural disasters, flood and/or storm.

“Intellectual Property Rights” means any and all rights under copyright laws, patent laws, trademark laws, trade secret laws, unfair competition laws, and any and all other proprietary rights, worldwide.

“Novade” means the applicable Novade contracting entity as specified in the article “Contracting Parties and Governing Law” of the Terms.

“Order” means the proposal sent by Novade and accepted by the Customer and/or the purchase order sent by the Customer and accepted by Novade and/or the online subscription plan agreed to by the Customer.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Party(ies)” means individually or collectively the Customer and/or Novade.

“Privacy Policy” means Novade privacy policy accessible at the following address: www.novade.net/privacy-en/

“Professional Services” means the professional services provided to Customer by Novade, which may include customisation, deployment, technical services, training services or other consulting services.

“Properties” means Novade applications, platform, Software, documentation and other Novade assets which Customer needs to access or use in order to benefit from the Services.

“Release(s)” means any release relating to Novade Properties including but not limited to updates, error fixes, patches, minor upgrades and new versions.

“Relief Event” has the meaning as set forth in article “Disclaimers” of the present terms.

“Services” means the Professional Services and/or the Subscription that are ordered by the Customer and provided or made available by Novade, as described in the Order.

“Software” means Novade’s software which the Customer may need to install on its own system in order to benefit from the Subscription, and any Releases of such Software.

“Subscription(s)” means all Novade web and mobile applications that Customer has subscribed to through the Order

“Terms (of Service)” means the present terms, the Terms of Use and the Privacy Policy.

“Terms of Use” means Novade terms of use accessible at the following address: https://www.novade.net/terms/.

“User” means anyone using the Services under the control and responsibility of the Customer. Users may include, for example, employees, clients, consultants, contractors and agents of the Customer, as well as third parties with whom the Customer transacts business.

“(User) IDs” means login information and password that is uniquely associated with a User.

“(Novade) Website” means the website published by Novade and accessible at the following address: www.novade.net.

Novade Terms of Service for reseller’s customers

Last update: 3rd September 2021 | Archived versions

The Agreement governs access to and use of the Novade Services acquired by the Customer through a Reseller. Novade Services include Subscription(s) to Novade web and mobile applications and Professional Services such as customisation, consulting, platform configuration, support, system integration or training.

The Agreement constitutes a binding contract between Novade and the Customer identified in the Reseller Order. The Customer must agree with these terms of service in order to benefit from the Services. If the Customer does not agree with all or part of these terms, the Customer must not use the Services.

The individual accepting these terms represents that he has the right and authority to legally bind the Customer to enter into the Agreement.

1. Provision of Services

Services access and availability. Each User is assigned a unique ID by the Administrator or by Novade, as per Customer’s instructions and under Customer’s responsibility. The ID is required to access the Subscription.

Novade will use commercially reasonable efforts to make the Subscription available at all times, except for scheduled maintenance, update and any unavailability caused by a Relief Event.

Modifications. Novade may roll out Releases from time to time. If Novade changes the Services in a manner that materially reduces their functionality, Novade will inform the Customer and will take the necessary measures to limit this disturbance.

Security. Novade shall implement all physical and logical security measures described on Novade Website. The Customer hereby acknowledges that such measures are suitable with regard to the type of use it intends to make of the Services as well as the nature of the relevant Customer Data.

Free trial. If Customer subscribes for a free trial, Novade will make Services available to Customer on a trial basis, free of charge, until the earlier of (i) the end of the free trial period for which Customer registered to the applicable Services, or (ii) termination of the free trial period by Novade in its sole discretion. Notwithstanding anything contained in these Terms, during the free trial period, Services are provided “AS IS”.

During the free trial period, use of the Services are limited to non-commercial evaluation purposes with no rights to make available or distribute the Services to any third party.

Novade makes no commitments during the trial period regarding any features, functions, service levels or data.

NOVADE MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NEITHER IDEMNIFICATION OBLIGATIONS NOR LIABILITY WITH RESPECT TO FREE TRIAL SERVICES, UNLESS SUCH EXCLUSION IS NOT ENFORCEABLE UNDER THE APPLICABLE LAW IN WHICH CASE NOVADE’S AGGREGATE LIABILITY SHALL BE LIMITED AS SPECIFIED IN THE SECTION “LIMITATION OF LIABILITY” OF THE AGREEMENT.

2. Customer Responsibilities

Compliance. The Customer and the Users must use the Services in compliance with the Agreement and all applicable laws. The Customer is fully responsible for all Customer Data, works and actions generated by, conducted on or though the Services. The Customer is responsible for User’s compliance with the Agreement and for Services’ access and use by the Users. The Customer is fully liable for any use, abuse or fraud that may be committed by Users when using the Services.

Novade exercises no control over, nor monitors, and accepts no responsibility for, any Customer Data, works or actions used or produced when using the Services.

Equipment and ancillary services. The Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to access and use the Services. The Customer is responsible for ensuring that such equipment and ancillary services are compatible with the Services. The Customer is responsible for the use, maintenance and security of such equipment, and shall ensure that the equipment meets the minimum configuration required to access and use the Services at all times.

Administration of the Services. Customer may designate Users as Administrators. Administrators may have the ability to monitor, restrict, or terminate access to User’s Services accounts. Novade is not responsible for the internal management or administration of the Services, or for any actions taken by the Administrators. For the avoidance of doubt, Novade is not responsible for the internal management or administration of the Services, or for any actions taken by the Administrators when the Administrator is an employee of the Reseller. Customer is responsible for such Administrator accounts and shall ensure that the Administrators’ use of the Services complies with the Agreement and all applicable laws.

Usage restrictions. Customer will not, and shall ensure that its Users and Administrators will not:

• breach or otherwise circumvent any security or authentication measures;
• use the Services or the Properties in any manner that could damage, disable or impair the Services or the Properties;
• interfere with or disrupt the Services for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
• violate the law in any way, including storing or sharing content that’s fraudulent, defamatory, misleading, or that violates the privacy or infringes the rights of others;
• permit direct or indirect access to the Services in a way that circumvents a contractual usage limit;
• copy, sell, resell, lease, license, distribute, modify, translate, prepare derivative works from the Properties or Services or any part, feature, function or user interface;
• (attempt to) decompile, reverse engineer, disassemble or otherwise (attempt to) derive source code from the Properties and/or (attempt to) create a substitute or similar service through use of or access to the Services;
• remove any product identification, proprietary, copyright or other notices included on the Properties or the Services;
• allow any person under the age of 16 to use the Services.

Unauthorized use & access. Customer will prevent unauthorized use of the Services by the Users and will terminate any unauthorized use of or access to the Services. Customer will promptly notify Novade of any unauthorized use of or access to the Services. Novade is not responsible for any damages or losses resulting from any breach of security caused by Customer’s or User’s failure to maintain the confidentiality of the User IDs. The Customer shall be responsible for any acts, breaches or misuse of the Services by its Users.

Breach. In the event of a breach of any of the obligations referred to herein, Novade shall have the sole and absolute discretion to limit, suspend or terminate access to the Services, without recourse to the courts and with immediate effect.

3. Proprietary rights and licenses

Reservation of Rights. Except as expressly set forth herein, the Agreement does not grant (a) Novade any Intellectual Property Rights in Customer Data or (b) Customer any Intellectual Property Rights in the Services, in the Properties or in Novade trademarks and brand features.

Limited permission. The Customer is the sole owner of Customer Data. Customer grants Novade only the limited rights, and permissions to the Customer Data to the extent that is reasonably necessary for Novade to offer the Services. The Customer also grants such limited rights and permissions to any such third parties Novade works with to provide the Services (e.g., hosting stored Customer Data). The Customer freely licenses to Novade the right to use, copy, display and any other relevant rights on the Customer Data, for the term of the Agreement, on a worldwide basis, solely for performing the Services.

Confidentiality. Each Party will take all reasonable precautions to protect the other Party’s Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information and shall not use any Confidential Information of the other Party for any purpose outside the scope of the Agreement. Notwithstanding the foregoing, a Party may disclose Confidential Information to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and have executed a reasonably protective non-disclosure agreement with the disclosing Party.

Limited software license. Some of the Subscription Services require the Customer to download and install Software. Novade grants to the Customer and Users a limited, non-transferable, non-exclusive, revocable license to use the Software, solely to access the Subscription.

License to use feedback. Novade may (but shall not be obliged to) use, modify, and incorporate into its software and Services any suggestion, enhancement request, correction or other feedback provided by Customer and Users. By providing the feedback, the Customer and/or User disclaims any and all rights to the feedback and agrees that Novade shall have the right to freely use, modify and incorporate such feedback without any legal obligation to the Customer and/or User.

4. Protection of Customer Data

Compliance with Data Protection Laws. Where applicable, Novade and the Customer shall comply with the necessary Data Protection Laws, regulations or directions of the relevant jurisdiction(s) and any timelines, procedures or requirements prescribed thereunder shall apply to the extent necessary. To operate and provide the Services, Novade collects certain information about the Customer and Users. Novade uses and retains such information in accordance with the Novade Privacy Policy.

Sharing of data. Novade may collect and analyse certain information regarding the use of Subscription. Information collected may include but is not limited to frequency of access, type and duration of field processes managed with the application, type of browser and operating system, etc. This information is logged to monitor adoption of the Services, help diagnose technical problems, administer the Services, and improve the quality of the Services. Customer hereby authorizes Novade to anonymize Personal Customer Data and to use the results of such exercise as specified in this article.

Novade may also use this information to carry out statistics, benchmarking reports or predictive modelling regarding subjects such as the average time required to conduct a field process or non-compliance average rates. Novade may share these statistics with other customers or third parties in an aggregated and anonymous manner. The Customer may opt out of sharing such information. In such a case, the Customer will not have access to such statistics, benchmarks or predictive modelling.

Third party applications: Novade Services may contain links to third party applications, including some that have different privacy and security policies and practices than Novade. Novade makes no representations or warranties about the policies and practices of such applications, and shall not be responsible for such applications.

Third-party products and services: Novade Services is designed to integrate with, or be interoperable with certain third-party products and/or services. Any such access and use of third-party products and/or services is governed solely by the terms and conditions of the third-party provider, and Novade does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such third-party products and/or services, including, without limitation, the technology itself, the availability of, or any content made available by the third-party provider. Customer agrees to and irrevocably waives any claim against Novade with respect to such third-party products and/or services. Moreover, Customer understands and agrees that in connection with any access or use of the party products and/or services, it is relying on the privacy practices, the data security processes and/or other policies of such third-party providers.

Data processing. Customer shall, in its use of the Services, at all times process personal data and provide instructions for the processing of personal data in compliance with the Data Protection Laws and with the article “Data protection addendum” of the Terms. Customer is solely responsible for the accuracy, quality and legality of the personal data provided to Novade, including data provided indirectly through the use of the Services, by or on behalf of Customer (the “Customer Personal Data”). Customer shall not provide or make available to Novade any Customer Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Novade from all claims and losses in connection therewith.

In the case of Customer Data which is subject to EU laws, the article “Data Protection Addendum” of the present terms shall apply and Novade shall process Customer Personal Data for the purposes set forth in the Agreement and in accordance with the Data Protection Laws, as specified in the article “Data protection addendum” of the present terms.

Limitation. Customer acknowledges that the Services have not been specifically designed to process or manage Sensitive Data and, accordingly, Customer assumes responsibility for collecting and processing this data in compliance with Data Protection Laws. Novade hereby specifically disclaims any liability that may result from use by the Customer of the Services to collect, process or manage Sensitive Data. “Sensitive Data” means personal data submitted to specific obligations due to their sensitivity such as data concerning health, or personal data relating to criminal convictions and offences.

5. Disclaimers

Warranties. Novade strives to provide great Services, but there are certain things that Novade cannot guarantee. TO THE EXTENT NOT PROHIBITED BY LAW, NOVADE AND ITS AFFILIATES (AND ASSOCIATED SERVICE PROVIDERS) (A) MAKE NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED, RELATED TO OR ARISING IN ANY WAY OUT OF THE AGREEMENT OR OF THE PROVISION OF THE SERVICES HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR ARISING BY COURSE OF DEALING OR PERFORMANCE, OR BY CUSTOM OR USAGE IN THE TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) DO NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

Service unavailability. The Customer acknowledges that Novade does not control the transfer of data over communications facilities, including the internet, and that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Novade is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Service interruptions. The Customer acknowledges that the Services may be temporarily unavailable for scheduled maintenance or because of other causes beyond Novade control. Novade will not be liable for any such unavailability, but Novade shall use reasonable efforts to provide advance notice of any scheduled disruption.

Relief Event. Novade shall not be liable should the Customer not be able to access or use the Services satisfactorily, and/or should Novade not be able to provide all or part of the Services accordingly with the Agreement, due to an event that is not under Novade’s control (a “Relief Event”), such as:

• a Force Majeure Event;
• any act or omission of Customer or any third party, including any delay or failure to promptly comply with its obligations;
• shortcomings of other parties, such as difficulties with services or devices under third party provider’s control or responsibility;
• difficulties with the Services due to changes in Customer’s systems or items;
• errors that the Customer may make (including third-party agents thereof) or those of a User managing or using the Services;
• any inaccurate or incomplete data, information or documentation provided by Customer;
• malfunctions of any kind whatsoever in the Customer’s or User’s facilities.

Indemnity. The Customer acknowledges that in the performance of its contractual obligations, Novade cannot assume or be exposed to the risks associated with the Customer’s business. THE CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD NOVADE AND ITS EMPLOYEES, SUBSIDIARIES, AGENTS AND REPRESENTATIVES HARMLESS FROM AND AGAINST ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO (A) THE USE OF THE SERVICES, AND/OR (B) CUSTOMER DATA, INCLUDING ANY LIABILITY OR EXPENSE ARISING FROM ALL CLAIMS, LOSSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), SUITS, JUDGMENTS, LITIGATION COSTS AND ATTORNEYS’ FEES, OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED.

For purpose of clarity, it is hereby specified that in case of legal action instigated by a third party against Novade as a result of (i) a non-compliance or breach of the Agreement from the Customer, or (ii) use of the Services by the Customer, or (iii) use by Novade of the Data Customer or any other elements or information the Customer has provided or made available with regard to the Services, the Customer shall indemnify Novade and bear the costs of defense of Novade, as well as settle the amounts and costs that Novade would be ordered to pay.

6. Limitation of Liability

Liability principles. Customer Data and more broadly any content integrated or processed in or with the Services by the Customer or a User, is the sole responsibility of the Customer. Novade shall only be held liable in case of breach by Novade, proven by the Customer, of its contractual obligations in the execution of the Agreement. Novade shall only be liable for damages resulting from breaches directly and exclusively under its responsibility. Novade shall be relieved of liability for any failure to provide or delay in providing any of the Services arising out of or in connection with a Relief Event.

Limitation on Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL NOVADE, ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF NOVADE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.

Limitation on amount of liability. IN NO EVENT SHALL NOVADE TOTAL AGGREGATE LIABILITY, FOR THE TERM OF THE AGREEMENT, WITH RESPECT TO ANY SERVICES INCLUDING THOSE PROVIDED DURING FREE TRIAL PERIOD, FOR ALL CLAIMS AND DAMAGES ARISING FROM NEGLIGENCE, BREACH OF AGREEMENT, WARRANTY OR INDEMNITY, OR ANY OTHER LEGAL THEORY OF LIABILITY OR OTHERWISE, UNDER OR IN CONNECTION WITH THE AGREEMENT, EXCEED THE AMOUNTS ACTUALLY PAYABLE OR PAID BY THE CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

General. No claim shall be made by the Customer against Novade more than one year after the date on which the facts constituting the claim were discovered or should have been discovered.The Customer has a duty to mitigate the damages that would otherwise be recoverable from Novade pursuant to the Agreement by taking appropriate and reasonable actions to reduce or limit the amount of such damages.For the avoidance of doubt, the provisions of this Article will survive the expiration or termination of the Agreement for any reason.

7. Intellectual property warranty

Indemnification. Novade shall indemnify and hold the Customer harmless from and against any third party actions and/or proceedings relating to any item used by Novade to provide the Services or provided by Novade to the Customer within the performance of the Services, based on an infringement of intellectual property rights, and shall bear, subject to the provisions of the article “Limitation of liability”, all related definitive damages and indemnities which may result from such claims and/or actions and/or proceedings in relation to the Agreement, provided that: (i) the Customer notifies Novade in writing of the claim, action or proceeding within fifteen (15) calendar days of the Customer being aware of the claim, action or proceeding and provides Novade with all information for defending its interests; (ii) the Customer agrees that Novade shall have sole and exclusive control of the defense of the claim, action or proceeding should Novade so desire and (iii) the Customer makes no admission or statement of any kind whatsoever that may prejudice Novade’s defense. The indemnification referred to in this section is limited to the payment by Novade of all damages and costs finally awarded for the claim, or settlements costs approved in writing by Novade.

Changes in the Services or termination. If the Services and/or Deliverables infringe a third party’s intellectual property right or if Novade reasonably believes the Services are likely to infringe a third party’s intellectual property right, Novade will promptly and at its own expense: (i) procure the right for the Consumer to continue using the Services and/or the Deliverables; or (ii) replace or modify the Services and/or the Deliverables to make their use non-infringing.If Novade cannot do either of the above, Novade or the Customer will have the right to terminate automatically and without judicial formalities the Agreement and Novade will provide a pro rata refund of the Services fees paid by the Customer for the period following the termination of the Services.

General. The preceding provisions set Novade’s liability limits with respect to the Customer with regard to intellectual property rights infringement. Therefore, Novade provides no guarantee other than that described in the present article regarding any and all forms of intellectual property infringement claims, and shall have no further liability beyond what is set out in the present article.

8. Professional Services

In the event the Customer orders any Professional Services, the nature, details and duration of the Professional Services are described in the Order.

Performance of Professional Services. For Professional Services that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the Order, Novade shall provide Customer with written notice (“Completion Notice”). Thereafter, Customer shall have five (5) working days after the date of the Completion Notice to provide Novade with a written notice describing any deliverables that have not been (properly) provided or milestones not met. The Professional Services shall be deemed complete and the deliverables accepted absent Customer’s timely written notice of any deliverables not (properly) provided or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for Professional Services that are time and materials based.

Professional Services Deliverables. Novade will own and retains all rights, title and interest in and to the any training materials or other tangible materials provided by Novade to Customer as part of the Professional Services (each, a “Deliverable”). Subject to these Terms, Novade grants Customer a royalty free, limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely for Customer authorized use of the Novade Service during the Agreement term. Nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise used by Novade to develop the Deliverables and to the extent such elements are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer on the same terms as the Deliverables.

“Custom developments” refer to new and discrete software and documentation developed by Novade specifically to address Customer’s specific needs and incorporated into the Services, with access and usage exclusively limited to the Customer. Novade undertakes not to share the custom developments to another customer, the Customer being the sole and exclusive beneficiary of these custom developments.

Professional Services Warranty. For Professional Services only, Novade warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with industry standards and in accordance with the scope of services outlined in the Order. Customer acknowledges that the ability to successfully perform the Professional Services is dependent upon Customer’s provision of timely information, access to resources, and participation as outlined in the Order.

9. Fees

Subscription fees. The Customer shall pay the Subscription fees set forth in the Reseller Order. No refund will be made should the Customer not use the Subscription or not use them for the volumes ordered and paid for.

Late payment. In the event that the Customer fails to pay any undisputed amount within fourteen (14) calendar days of the due date for payment, Novade may forthwith suspend performance of its obligations or of the access to the Services or terminate the Agreement without incurring any liability whatsoever. Should such a decision be made by Novade, the sums due by the Customer for the contractual period will still be payable.

10. Term and termination

Effective date. The Agreement shall commence on the Effective Date and remains in effect as long as an Order is ongoing.

Professional Services term and renewal. The Professional Services will remain in effect from the Effective Date for the term specified in the Order. If Customer purchases Professional Services that are recurring, they will renew in accordance with the Subscription.

Subscription term and renewal. The Subscription shall start from the commencement date specified in the Order for the period specified in the Order (the” Subscription Period”). Either Party may elect to terminate the Subscription at the end of the current Subscription Period by providing notice on or prior to the date thirty (30) calendar days preceding the end of such Subscription term. Unless the subscription is so terminated, and with the exception of the Services subscribed on a trial basis, the Subscription will renew for a Subscription Period equivalent in length to the then expiring Subscription Period and on the Subscription fees that Novade then generally makes commercially available to subscribers of such Services in the same geography at the time subsequent Subscription commences.

Effect of Subscription termination. If a Subscription terminates, the corresponding rights granted by Novade to the Customer will immediately cease. Customer is responsible for exporting Customer Data before the end of the Subscription.

Order cancellation. No refunds or credits for Services fees or other fees or payments will be provided if the Customer elects to terminate the Agreement prior to the end of the contractual term or Period.

Termination for Breach. Either Novade or the Customer may terminate the Agreement if: (a) the other Party is in material breach of the Agreement and fails to cure that breach within thirty calendar (30) days after receipt of written notice or (b) the other Party ceases its business operations.

Consequences of termination. If the Agreement terminates, the rights granted by Novade to the Customer will cease immediately on the effective date of termination. Novade will have no obligation to maintain or provide Customer Data, unless legally required to do so.

11. General

Entire Agreement. The Agreement constitutes the entire agreement between the Customer and Novade. This agreement supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of the Agreement.

Revisions. Novade may revise from time to time parts of the Agreement such as the Terms of Use or the Privacy Policy. If a revision is determined by Novade, in its sole discretion, to be material, Novade will notify Customer. Other revisions may be posted to Novade Website, and the Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, the Customer and the Users agree to be bound by the revised Agreement, whether or not Novade has given any express notice of the revisions. If the Customer does not agree to the materially revised Agreement terms, the Customer may terminate the Services within thirty (30) calendar days of receiving notice of the change.

Force Majeure. Except for payment obligations, neither Novade nor the Customer will be liable for inadequate performance to the extent caused by a Force Majeure event.

Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Novade. Novade may not assign this Agreement without providing notice to Customer, except Novade may assign this Agreement or any rights or obligations under this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets without providing notice. Customer also agrees that its Reseller Order may be assigned to Novade. Any other attempt to transfer or assign is void.

Third parties. The Customer authorises Novade to engage third parties to outsource parts of the Services. Novade may in this context communicate to third parties all the necessary information and elements. Notwithstanding the foregoing, Novade is and remains responsible for the proper performance of third parties’ obligations.

No third-party beneficiaries. Nothing in the Agreement, express or implied, is intended to confer to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.

Survival. Those provisions that by their nature should survive termination of the Agreement will survive termination of the Agreement. The articles which will survive the termination of the Agreement include the confidentiality clause in Article 3 and Articles 4 (Protection of Customer Data), 6 (Limitation of Liability), 7 (Intellectual Property Warranty) and 13 (Data Protection addendum).

Hierarchy of Documents. Unless otherwise specifically agreed to by the Parties, in the event of any conflict between the terms of the Order, the present Terms of Service, the Terms of Use and the Privacy Policy the order of precedence is as follows: (i) the Order; (ii) the present Terms of Service; (iii) the Terms of Use; and (iv) the Privacy Policy.

Export control. The Customer must comply with all domestic and international export laws and regulations that apply to the use of the Services.

Communications. Novade may use the Client’s name, trademarks, logo and contact details as well as a description of the Services provided, in its presentations, customer lists, case studies and other promotional or marketing materials, including, for example in press releases, brochures, reports, e-mails and electronic media.

12. Parties identification, Governing Law and Dispute Resolution

Contracting Parties. The principal place of business (or country if no place of business is specified) of the Customer, as set forth in the Reseller Agreement, determines which Novade entity the Customer is contracting with for the Services and, consequently, determines the applicable law and jurisdiction, as per the table below. The Parties further agree that the principal place of business as set forth in the Order is determinative and final and shall not seek to challenge the applicable governing law or exclusive jurisdiction clause.

Dispute resolution. In the event of a dispute arising out of or in connection with the Agreement, the Parties undertake to set up a diligent, good faith attempt to resolve amicably all disputes in accordance with the following principles. In this respect, as soon as a Party considers there is a dispute with the other Party, it will summon a conference call meeting with representatives of both Parties in order to discuss possible settlement of the said dispute. Such meeting shall be summoned by email and shall take place within fifteen (15) calendar days of receipt of the said email by the recipient Party. Should, within the aforementioned 15-day time period, the dispute not be settled or the meeting not be held, then each Party will be free to submit the dispute to a court of competent jurisdiction. Notwithstanding the foregoing, the Parties hereby agree that a dispute regarding a breach of intellectual property rights or non-payment of an uncontested invoice shall not be subject to the above procedure.

If the Parties fail to settle a dispute in accordance with the dispute resolution process set forth in section “Dispute resolution” above, any dispute arising from or relating to the Agreement shall be submitted to the courts specified in the table above.

Governing law. The validity and interpretation of the Agreement and the legal relation of the Parties to it shall be governed by the applicable laws as specified in the table below.

13. Data protection addendum

The following provisions apply if the processing of Customer Data performed by Novade within the course of the Agreement is submitted to the regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016 (GDPR).

Novade shall:

• process Customer Personal Data solely for the purposes set forth in the Agreement;
• process Customer Personal Data only in accordance with the terms and conditions set forth in the Agreement and any other documented instructions provided by Customer. If Novade deems an instruction may violate any Data Protection Laws, Novade must inform Customer. Moreover, if Novade is instructed to transfer Customer Personal Data to a third country or an international organization, under the requirements of the Union or Member State law to which Novade is subject, the latter shall immediately inform the Customer of that legal requirement before processing, unless the law prohibits such information on important grounds of public interest;
• ensure that persons authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

Customer acknowledges and agrees that Novade may engage another processor (hereinafter “sub-processor”) to carry out specific processing activities. Novade shall notify in writing the Customer before engaging any modification pertaining to adding or replacing other sub-processors. This notice shall clearly indicate the processing activities carried out by the sub-processor, the identity and contact details of the sub-processor and the dates of fulfillment of the subcontracting agreement. Customer may object to such an engagement within ten (10) days of receipt of the aforementioned notice.

The sub-processor shall be subject to the obligations under the present Terms and to the Customer’s instructions. Novade must ensure that the sub-processor provides the same sufficient guarantees to implement appropriate and technical and organizational measures in such a manner that the processing will meet the requirements of the Data Protection Laws. Where the sub-processor fails to fulfill its data protection obligations, the initial processor remains fully liable to the Customer for the sub-processor’s performance of his obligations.

Customer shall, when collecting data, provide the information to the persons subject to the operations of data processing. To the extent possible, Novade shall provide Customer with reasonable cooperation and assistance with respect to Customer’s obligation to follow up on the data subjects’ requests. Where the data subjects submit requests to Novade to exercise their rights, Novade must forward these requests to the Customer.

Novade shall, without undue delay after becoming aware of a Personal Data breach, inform the Customer of such breach. This notice shall be supported by any useful documentation which may allow the Customer, when necessary, to notify the breach to the competent authority.

Any transfer of Customer Personal Data made by Novade from member states of the European Economic Area (EEE) to any countries which do not ensure an adequate level of data protection shall, to the extent such transfer is subject to such laws and regulations, be undertaken by Novade only if the latter has provided appropriate safeguards.

Novade shall provide Customer with reasonable cooperation and assistance where necessary for Customer to conduct (i) a data protection impact assessment and/or to demonstrate such compliance or (ii) a prior consultation with any supervisory authority, provided that Customer does not otherwise have access to the relevant information.

Customer shall be responsible for any costs and expenses arising from any such assistance by Novade.

Following completion of the Services, Processor shall delete the Customer Personal Data.

14. Definitions

In the Agreement, capitalized terms have the following meaning:

“Administrator(s)” means the Users who are conferred specific powers by the Customer, as specified in article “Administration of the Services” of the present Terms. The Administrator is a User.

“Agreement” means the set composed of, the Order, the present terms, the Terms of Use and the Privacy Policy.

“Confidential Information” means any non-public information of each Party hereto relating to its business activities, financial affairs, technology, marketing or sales plans that is disclosed to the other Party pursuant to the Agreement. With respect to the Customer, and without limitation, Customer Data, such as drawings, plans, reports, shall be considered Confidential Information. With respect to Novade, and without limitation, information on product roadmaps, product designs and architecture, technology and technical information, security audit reviews, business and marketing plans shall be considered Confidential Information. Confidential Information shall not include information that is already public knowledge otherwise than as a result of a breach of a party’s obligation of confidence under this Agreement.

“Customer” means the legal entity identified in the Reseller Agreement.

“Customer Data” means the files, data and various elements provided by the Customer and the Users for processing in the context of the Services.

“Data Protection Laws” means all applicable worldwide legislation relating to Personal Data protection which applies to the respective party in the role of processing Personal Data under the Agreement, as amended, consolidated or replaced from time to time.

“Deliverables” has the meaning as set forth in article “Professional Services Deliverables” of the present terms.

“Effective Date” means the commencement date specified in the Order.

“Force Majeure Event” means an event beyond the reasonable control of the person affected including, without limitation, strike, epidemic, lock out, labor dispute, war, terrorism, riot, civil commotion, malicious damage, accident, breakdown of plant or machinery, computer software, hardware or system failure, fire, extraordinary situations of natural and man-caused nature, including natural disasters, flood and/or storm.

“Intellectual Property Rights” means any and all rights under copyright laws, patent laws, trademark laws, trade secret laws, unfair competition laws, and any and all other proprietary rights, worldwide.

“Novade” means the applicable Novade contracting entity as specified in the article “Contracting Parties and Governing Law” of the Terms.

“Order” means the proposal sent by Novade and accepted by the Customer and/or the purchase order sent by the Customer and accepted by Novade and/or the online subscription plan agreed to by the Customer.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Party(ies)” means individually or collectively the Customer and/or Novade.

“Privacy Policy” means Novade privacy policy accessible at the following address: www.novade.net/privacy-en/

“Professional Services” means the professional services provided to Customer by Novade, which may include customisation, deployment, technical services, training services or other consulting services.

“Properties” means Novade applications, platform, Software, documentation and other Novade assets which Customer needs to access or use in order to benefit from the Services.

“Release(s)” means any release relating to Novade Properties including but not limited to updates, error fixes, patches, minor upgrades and new versions.

“Relief Event” has the meaning as set forth in article “Disclaimers” of the present terms.

“Reseller” means the Novade authorized partner from whom the Customer acquired the right to access and use the Services and with whom the Customer signed a separate agreement.

“Reseller Order” means the separate agreement executed between the Reseller and the Customer which allows the Customer to access and use the Services.

“Services” means the Professional Services and/or the Subscription that are ordered by the Customer and provided or made available by Novade, as described in the Order.

“Software” means Novade’s software which the Customer may need to install on its own system in order to benefit from the Subscription, and any Releases of such Software.

“Subscription(s)” means all Novade web and mobile applications that Customer has subscribed to through the Reseller Order.

“Terms (of Service)” means the present terms, the Terms of Use and the Privacy Policy.

“Terms of Use” means Novade terms of use accessible at the following address: www.novade.net/terms-en.

“User” means anyone using the Services under the control and responsibility of the Customer. Users may include, for example, employees, clients, consultants, contractors and agents of the Customer, as well as third parties with whom the Customer transacts business.

“(User) IDs” means login information and password that is uniquely associated with a User.

“(Novade) Website” means the website published by Novade and accessible at the following address: www.novade.net.