This Services Agreement together with any applicable Orders (defined below) collectively constitute a binding agreement (the “Agreement”) between Magic Sauce, Inc. d/b/a Norby, a Delaware corporation (“Norby”), and you or the legal entity you represent (“Customer”).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE NORBY SERVICE. BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE NORBY SERVICE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH NORBY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE AGREEMENT. THE TERM “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE NORBY SERVICE.
As used in this Agreement:
- “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Norby Service.
- “Authorized User” means each of Customer’s employees, agents, and independent contractors who are provided user names and passwords and permitted hereunder to access the Norby Service pursuant to Customer’s rights under this Agreement.
- “Customer Content” means any content developed by or on behalf of Customer and used in connection with the Norby Service.
- “Customer Event” means events and other gatherings of End Users made accessible, or promoted by Customer, through the Norby Service.
- “Documentation” means the technical materials provided or made available by Norby to Customer in hard copy or electronic form that describe the features, functionality or operation of the Norby System.
- “End User” means individuals users who view and access Customer Content, including end users of Norby’s mobile application, and any other purchaser, participant or attendee of a Customer Event.
- “Error” means a reproducible failure of the Norby Service to substantially conform to the Documentation.
- “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- “Licensed Material” means results, reports, and materials made available to Customer as part of the Norby Service.
- “Norby Service” means the online event, marketing and customer relationship management (CRM) software made available through the Norby System.
- “Norby System” means the technology, including software and Website, used by Norby to deliver the Norby Service to Customer.
- “Order” means any ordering document signed or acknowledged by both parties in writing that references this Agreement, including any orders placed directly by Customer through the Website.
- ”Website” means this website and any other websites of Norby, its affiliates or agents.
- Subscription to the Norby Service. Subject to the terms and conditions of this Agreement, Norby hereby grants to Customer, during the term of this Agreement, a non-sublicensable, non-transferable, non-exclusive subscription to, solely for Customer’s internal use: (a) access and use the Norby Service; (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the Norby Service.
- Access. Subject to Customer’s payment of the Fees (as defined below), Norby will provide Customer with access to the Norby Service during the term(s) of the Order(s). On or as soon as reasonably practicable after the effective date of the Order(s), Norby shall provide to Customer the corresponding necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer to access the Norby Service in accordance with the Access Protocols. Customer may authorize additional users as Authorized Users of the Norby Service. Customer and all Authorized Users shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Norby Service, and notify Norby promptly of any such unauthorized use known to Customer.
- Free or Trial Subscription. From time to time and in its sole discretion, Norby may offer limited free access to the Norby Service (for purposes of this Section, “Trial Services”) so that Customer can test whether the Norby Service meets Customer’s needs. Because Trial Services are limited and are provided free of charge, to the extent permitted by law, (i) Norby makes them available to Customer solely “AS IS” without any warranties of any kind (and Norby is under no obligation to provide Customer with support for Trial Services); (ii) Norby may discontinue the Trial Services or Customer’s ability to use them at any time, with or without notice and without any further obligations to Customer; (iii) Customer agrees that Norby’s indemnification obligations under Section 11.1 do not extend to any claims related to Customer’s use or inability to use the Trial Services; and (iv) Customer agrees that Norby’s support obligations under Section 2.6 do not apply to any use of the Trial Services. Except as expressly stated in this Section 2.3, the Trial Services shall be subject in all respects to the terms and conditions of this Agreement. Norby may allow Customer to continue using Norby Service provided as Trial Services on a paid basis, but Customer’s continued use is subject to the payment of the applicable Fees in accordance with Section 5.
- Authorized Users. Subject to any limitations set forth in this Agreement or an applicable Order, Customer may permit any Authorized Users to access and use the features and functions of the Norby Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name and password (“User ID”) for access to and use of the Norby Service. User IDs cannot be shared or used by more than one Authorized User at a time.
- License to Licensed Material. Subject to the terms and conditions of this Agreement, Norby grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.5(No Assignment)), non-sublicensable license to use, view, download, reproduce, and disclose (to third parties acting on Customer’s behalf, provided that such third parties agree to treat such information in accordance with this Agreement) the Licensed Material solely for Customer’s internal business purposes.
- Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) use the Norby Service or Licensed Material to harvest, collect, gather or assemble information or data regarding other Norby hosts or End Users without their consent; (b) access or copy any data or information of other Norby hosts without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Norby Service or the data contained therein; (d) harass or interfere with another Norby host’s, or any End Users’ use and enjoyment of the Norby Service; (e) reverse engineer, disassemble or decompile any component of the Norby System; (f) interfere in any manner with the operation of the Norby Service, or the Norby System or the hardware and network used to operate the Norby Service; (g) sublicense any of Customer’s rights under this Agreement, or otherwise use the Norby Service or Licensed Material for the benefit of a third party or to operate a service bureau; (h) modify, copy or make derivative works based on any part of the Norby System; (i) directly contact, solicit, or engage End Users by sending text or SMS messages outside of the Norby Service; or (j) otherwise use the Norby Service or Licensed Material in any manner that exceeds the scope of use permitted under this Agreement. Customer acknowledges and agrees that the Norby Service will not be used, and is not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions.
- Support. Subject to the terms of this Agreement, Norby shall use commercially reasonable efforts to maintain the security and availability of the Norby Service.
- Generally. Customer acknowledges that Norby retains all right, title and interest in and to the Norby Service, Norby System, Licensed Material, Documentation and all software and all Norby proprietary information and technology used by Norby or provided to Customer in connection with the Norby Service (the “Norby Technology”), and that the Norby Technology is protected by Intellectual Property Rights owned by or licensed to Norby. Other than as expressly set forth in this Agreement, no license or other rights in the Norby Technology are granted to Customer. Customer hereby grants to Norby a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Norby Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Norby Service. Norby shall not identify Customer as the source of any such feedback.
- Customer Content. The Customer Content hosted by Norby as part of the Norby Service, and all worldwide Intellectual Property Rights therein, is the exclusive property of Customer. Customer hereby grants to Norby a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Content as necessary for the purposes of providing the Norby Service to Customer, and (b) to use the Customer trademarks, service marks, and logos as required to provide the Norby Service to Customer. All rights in and to the Customer Content not expressly granted to Norby in this Agreement are reserved by Customer.
- Third Party Software. The Norby Service may utilize, contain or otherwise use certain third party software (collectively, the “Third Party Software”). Third Party Software may be subject to additional licensing terms, which Norby may deliver or make available from time to time to Customer, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement.
Where the parties have agreed to Norby’s provision of integration, design, development, operational and other professional services (“Professional Services”), they will enter into an Order specifically governing the provision of the initially required Professional Services. The Order will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of the Order and the terms of this Agreement, the terms and conditions of this Agreement will govern. The Order will include: (i) a description of the Professional Services; (ii) the schedule for the performance of the Professional Services; (iii) the ownership rights with respect to the work product resulting from the performance of the Professional Services (and if no such provision is provided, all ownership rights are and shall be vested in Norby immediately); and (iv) Norby’s then-current rates for the performance of the Professional Services.
Fees and expenses; payments
- Fees. In consideration for the access rights granted to Customer and the services performed by Norby under this Agreement, and unless otherwise specified in an Order, Customer will pay to Norby the fees set forth on the Norby Pricing webpage (collectively, the “Fees”). Except as otherwise provided in an applicable Order, all Fees hereunder are billed in advance on a monthly or annual basis and are due and payable to Norby within thirty (30) days of the end of the billing cycle. Norby reserves the right to change the Fees or its pricing model at any time during the Term provided that any such change will go into effect no earlier than thirty (30) days after the change is posted to the Norby Pricing webpage, and provided further that if the Fees are specified in an Order, no changes to the Fees will become effective until the expiration of the then-current subscription term covered by that Order. Norby reserves the right (in addition to any other rights or remedies Norby may have) to discontinue the Norby Service and suspend all Authorized Users’ and Customer’s access to the Norby Service if any fees are more than thirty (30) days overdue until such amounts are paid in full.
- Payment. Customer shall pay Norby the Fees stated on the pricing page of the Website, in Customer’s Account, in an Order, or as otherwise specified in this Agreement. All Fees are quoted in United States Dollars, and except as otherwise agreed upon in an Order, all payment obligations under this Agreement are non-cancelable and all Fees paid are non-refundable. Customer must provide Norby with valid credit card or payment information as prompted by the Norby Service as a condition for signing up for the Norby Service. If Customer provides credit card information, Customer represents that Customer are authorized to use the card and Customer authorizes Norby to charge that card for all payments for which Customer are responsible hereunder. By submitting payment information, Customer authorizes Norby to provide that payment information to third parties for purposes of their facilitation of payment. Customer agrees to verify any information requested by Norby for purposes of acknowledging or completing any payment for which Customer is responsible, and will immediately notify Customer of any change in Customer’s billing address or the credit card or other payment information used for payments hereunder.
- Taxes. The fees are exclusive of, and Customer will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes for Norby employees and taxes based on Norby’s net income.
- Interest. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.
- Records; Audit. Customer will permit Norby or its representatives to review Customer’s relevant records and inspect Customer’s facilities to ensure compliance with this Agreement. Norby will give Customer at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. If any such audit should disclose any underpayment of fees, Customer shall promptly pay Norby such underpaid amount, together with interest thereon at the rate specified in this section. If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Customer shall also pay Norby for Norby’s expenses associated with such audit.
- Payments for Customer Events. Norby is integrated with certain third-party payment processors (each a "Payment Processor") (which may include Stripe, Apple Pay, and Google Pay) to accept payment by End Users to Customer for Customer Events and related charges. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Norby is not responsible for error by the Payment Processor. By choosing to collect payments utilizing the Payment Processor, Customer agrees to pay to the Payment Processor all charges by the Payment Processor, in accordance with the applicable payment terms, either as a charge to Customer’s chosen payment method ("Payment Method") or as a pass-through reimbursement to Norby. Such charges may include state and local sales tax, the amount of which varies. Customer agrees to make payment using that selected Payment Method. Norby reserves the right to correct any charge or payment errors, even if it has already requested or received payment. Customer acknowledges and agrees that (i) its sales through the Norby Service are transactions between Customer and the End User of such purchases, and not with Norby or any of its affiliates; and (ii) Norby is not a party to Customer’s payment transaction for such sales and Norby is not a buyer or a seller in connection with such transactions.
Customer content and responsibilities
- Customer Content Warranty. Customer represents and warrants that any Customer Content hosted by Norby as part of the Norby Service shall not (a) infringe, misappropriate or violate any Intellectual Property Rights, publicity/privacy rights, laws or regulations; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (d) otherwise violate the rights of a third party. Norby is not obligated to back up any Customer Content. the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Norby Service contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorized and improper use of the Norby Service.
- Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Norby Service. Customer shall have the ability to export Customer Content out of the Norby Service and is encouraged to make its own back-ups of the Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
- Customer Events; Release. When providing End Users with access to Customer Events through the Norby Service, Customer shall enter into a direct contractual agreement with each End User, and include Customer’s terms and conditions of sale as part of the sale of each Customer Event. Customer is responsible for the accuracy and completeness of all Customer Content made available in connection with a Customer Event. The Norby Service allows Customer to connect with End Users through the Norby Service. Because Norby is not involved in the actual contract between Customer and End Users, or in the completion of the sale of any Customer Events, in the event that Customer has a dispute with one or more End Users, CUSTOMER RELEASES NORBY (AND NORBY’S AFFILIATES, OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. CUSTOMER IS RESPONSIBLE FOR ENSURING THAT ALL CUSTOMER EVENTS COMPLY WITH LAW.
Representations and warranties
- By Both Parties. Each party represents and warrants that: (a) it has the requisite power and authority to enter into, deliver and perform the obligations under this Agreement; and (b) this is a valid and legally binding Agreement enforceable against it and its business.
- By Customer. Customer represents and warrants that: (a) Customer will comply with all applicable laws and regulations, including the CAN-SPAM Act of 2003 and the Telephone Consumer Protection Act of 1991 and the terms of this Agreement; and (b) Customer has obtained all rights, licenses, consents and releases that are necessary to display the Customer Content and otherwise make its services available to End Users via the Norby Service.
Warranty and disclaimer
- Limited Warranty. Norby warrants to Customer that, when used as permitted by Norby and in accordance with the Documentation, the Norby Service will operate materially free from Errors during the term of the Agreement. Provided that Customer notifies Norby in writing of any breach of the foregoing warranty during the term hereof.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NORBY SERVICE, NORBY SYSTEM, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS, AND NORBY AND ITS AFFILIATES, SUPPLIERS, CONTRACTORS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, RELATING TO THE NORBY SERVICE, NORBY SYSTEM, LICENSED MATERIAL, AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NORBY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE NORBY SERVICE AND THE NORBY SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
- No Responsibility for Customer Events. Norby facilitates connections between Customer and End Users, including by allowing Customer to offer access to Customer Events. CUSTOMER AGREES AND ACKNOWLEDGES THAT NORBY IS NOT RESPONSIBLE FOR ANY CUSTOMER EVENTS, INCLUDING THE SAFETY OR LEGALITY OF SUCH CUSTOMER EVENTS, THAT LEADS TO ILLEGAL ACTIVITY, VIOLENCE OR ANY OTHER HARM OR DAMAGE TO CUSTOMER OR ANY END USERS. NORBY IS NOT RESPONSIBLE FOR GUARDING AGAINST ZOOM BOMBING OR ANY OTHER DISRUPTIONS TO CUSTOMER EVENTS.
Limitation of liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT IN NO EVENT WILL NORBY AND ITS AFFILIATES, SUPPLIERS, CONTRACTORS, OR LICENSORS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED BY THE FAILURE OF THE NORBY SERVICE OR THE NORBY SYSTEM OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, GOODS OR TECHNOLOGY. IN NO EVENT WILL NORBY OR ITS AFFILIATES, SUPPLIERS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION WITH THIS AGREEMENT, THE NORBY SERVICE, THE NORBY SYSTEM, OR LICENSED MATERIAL EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NORBY’S AND ITS AFFILIATES’, SUPPLIERS’, CONTRACTORS’, AND LICENSORS’ AGGREGATE CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT (INCLUDING THE NORBY SERVICE AND THE NORBY SYSTEM) WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO NORBY FOR THE USE AND ACCESS TO THE NORBY SERVICE AND THE NORBY SYSTEM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN WILL REMAIN IN EFFECT.
“Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, the Norby Service, Norby System, and Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Norby. Information will not constitute the other party’s Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iii) is publicly known without breach of this Agreement; or (iv) is lawfully received from a third party without obligation of confidentiality. The Receiving Party will not use or disclose any Confidential Information except as expressly authorized by this Agreement and will protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event less than reasonable care. The Receiving Party will take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
Norby will defend at its expense any suit brought against Customer, and will pay any settlement Norby makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Norby Service, Licensed Content or the Norby System infringes, misappropriates or violates any third party Intellectual Property Rights. If any portion of the Norby Service or the Norby System becomes, or in Norby’s opinion is likely to become, the subject of a claim of infringement, Norby may, at Norby’s option: (a) procure for Customer the right to continue using the Norby Service or the Norby System; (b) replace the Norby Service or the Norby System with non-infringing software or services which do not materially impair the functionality of the Norby Service or the Norby System; (c) modify the Norby Service or the Norby System so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to Norby for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Norby Service, Norby System, and Documentation. Notwithstanding the foregoing, Norby shall have no obligation under this section or otherwise with respect to any infringement claim based upon (x) any use of the Norby Service, Licensed Content or the Norby System not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Norby Service or the Norby System in combination with other products, equipment, software or data not supplied by Norby; or (z) any modification of the Norby Service or the Norby System by any person other than Norby or its authorized agents (collectively, “Exclusions”). This Section states Norby’s entire liability and Customer’s sole and exclusive remedy for the claims and actions described herein.
Customer will defend at its expense any suit brought against Norby, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion; (b) Customer’s (or its Authorized User’s) use of the Norby Service, Norby System or Documentation, except to the extent the claim is subject to indemnification under Section 10.1 (By Norby) above or caused by Norby’s gross negligence or willful misconduct; (c) Customer’s breach or alleged breach of the Section 6 (Customer Content and Responsibilities) or 7 (Representations and Warranties); and (d) any Customer Events. This Section sets forth Customer’s entire liability and Norby’s sole and exclusive remedy for the claims and actions described herein.
Any party that is seeking to be indemnified under the provisions of this Section (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) in writing of any third-party claim, suit, or action for which it is seeking an indemnity hereunder, (b) give the Indemnifying Party sole control over the defense of such claim, suit or action and any related settlement negotiations, and (iii) cooperating and, at Indemnifying Party’s reasonable request and expense, assisting in such defense.
Term and termination
This Agreement commences on the earlier of your clicking of the “I ACCEPT” button, and when you first access the Norby Service, and shall remain in effect until terminated in accordance with this Agreement or upon the expiration of all Orders (whichever occurs first) (the “Term”). The Norby Service is made available to Customer on a subscription basis as set forth in an applicable Order. Each Order begins on the Order Effective Date of such Order and continues for the term stated on the Order, and if no such term is stated such Order shall continue for a thirty (30) day period (“Initial Order Term”). Each Order shall automatically renew (each a “Renewal Order Term”) for subsequent periods of the same length as the Initial Order Term unless either party gives the other party written notice of its intent not to renew at least fifteen (15) days prior to expiration of the then-current Order Term. The Initial Order Term and each Renewal Order Term shall comprise the “Order Term”.
Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
Effect of termination
Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) any amounts owed to Norby under this Agreement will become immediately due and payable; and (c) each party will return to the other all property (including any Confidential Information and Customer Content) of the other party. The sections and subsections titled Definitions, Restrictions, Ownership, Fees and Expenses; Payment, Representations and Warranties, Warranty and Disclaimer, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous, and any other provisions which should by their nature survive expiration or termination, will survive expiration or termination of this Agreement for any reason.
Customer agrees that Norby may use Customer’s name and logo, subject to Customer’s then-current trademark usage guidelines, in Norby’s marketing materials or communications (including, but not limited to, the Website and in Norby’s marketing presentations) for the sole purpose of indicating Customer as a customer of the Norby Service. Neither party will issue a press release announcing its relationship with the other party without the other party's prior approval, not to be unreasonably withheld or delayed. Subject to the terms and conditions of this Agreement, Customer hereby grants to Norby a non-exclusive and limited license to use and publicly display Customer’s logo as set forth in this Section.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Norby’s principal place of business is located for any lawsuit filed there against Customer by Norby arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Norby Service, Norby System or Documentation.
- Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Norby, or any products utilizing such data, in violation of the United States export laws or regulations.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
- Force Majeure. Norby will not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of Norby.
- Independent Contractors. Customer’s relationship to Norby is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Norby.
- Notices. All notices or other communications required or permitted under this Agreement will be in writing to the other party at the address listed on the signature page and will be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and will be deemed given upon personal delivery or upon confirmation of receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of the parties.