1.1 “Affiliate(s)” means any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the Party. For purposes of this definition, the term “Control” means the power (or, as applicable, the possession or exercise of the power) to direct, or cause the direction of, the management, governance, or policies of a given entity, directly or indirectly, through any applicable means (whether through the legal, beneficial, or equitable ownership, of more than 50% of the aggregate of all voting or equity interests or securities of such entity, through partnership, or through some other form of ownership interest, by contract, or other applicable legal document, or otherwise).
1.2 “Confidential Information” shall include any oral or written information of either Party, including any Users and/or Affiliates, that is marked or otherwise identified, orally or in writing, as confidential or proprietary information. Such information shall include, without limitation, information relating to a Party’s employees, compensation structure, business operations, strategies, financial matters, current and prospective Customers, marketing and/or advertising, pricing, products, and any other item or data which a Party should recognize from the circumstances surrounding the disclosure to be confidential or proprietary in nature. Confidential Information of Customer shall include Customer Data; Confidential Information of Nuvo shall include the Service, including the underlying, software, systems and technology platform and related Intellectual Property; Confidential Information of each party shall include the terms and conditions of this Agreement as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
1.3 “Customer Data” means all electronic data submitted by Customer or its Users to the Service, including without limitation, names, e-mail addresses, company details, tax identification numbers and tax filings, credit information, bank account information, and financial information, except for any Feedback (as defined below).
1.4 “Deliverables” means all concepts, inventions (whether or not protected under patent laws), works of authorship, information, new or useful art, combinations, discoveries, algorithms, specifications, technical developments, systems, computer architecture, artwork, software, programming, applets, scripts, designs, processes, and methods of doing business, and any other media, materials, and other tangible objects produced by Nuvo under this Agreement.
1.5 “Intellectual Property” means any and all patents, inventions, copyrights, works of authorship, trademarks, trade secrets, know-how, designs, and all other intellectual property rights (whether registered or unregistered and including the right to register, renew or extend such foregoing intellectual property) that are, in each case, protected under the laws of any governmental authority having jurisdiction.
1.6 “Malicious Code” means viruses, worms, time bombs, Trojan Horses and other harmful or malicious code, files, scripts, agents or programs.
1.7 “Pre-Existing Intellectual Property” means: (i) a Party’s Intellectual Property in existence as of the Effective Date of this Agreement; and (ii) Intellectual Property that a Party creates or develops outside the scope of the Services provided by Nuvo to Customer under this Agreement and without the use of the other Party’s Confidential Information.
1.8 “Privacy Policy” means Nuvo’s Privacy Policy found at https://nuvo.com/privacy-policy, as may be revised from time to time by Nuvo.
1.9 “Services” shall mean the Nuvo Services as set forth in an Order Form, which may incorporate AI Tools.
1.10 “Trading Partner” means a vendor, or other non-customer engaged in business with Customer.
1.11 “Trading Partner Records” means all electronic data or information (i) collected by the Service or submitted by Customer or its Users to the Service relating to Customer’s Trading Partners and existence of a relationship between Customer and a Trading Partner, and (ii) submitted by a Trading Partner about Customer.
1.12 “Users” means individuals who are authorized by Customer, including employees and contractors of Customer, to use any of the Services and who have accepted the Website Terms and Privacy Policy.
1.13 “User Records” means all electronic data or information (i) collected by the Service or submitted by Customer or Users to the Service relating to Customer’s Users and existence of a relationship between Customer and a User, and (ii) submitted by a User about Customer.
1.14 “Website Terms” means Nuvo’s Website Terms of Use found at https://nuvo.com/terms, as may be revised from time to time by Nuvo, provided that any such revisions shall not materially degrade the functionality of the Services on the date hereof.
Subject to the terms and conditions of this Agreement, Nuvo will provide to Customer the Services as described in the Order Form. In accordance with Customer’s reasonable and lawful objectives, Nuvo shall independently determine the method, details, and means of performing the Services required by this Agreement. Nuvo shall perform the obligations described in this Agreement itself and through its licensors and subcontractors. Nuvo’s Services may incorporate machine learning, natural language processing, predictive analytics, or other artificial intelligence technologies developed by Nuvo and/or Nuvo’s third-party providers and subprocessors to analyze Customer Data and generate information and Deliverables (“AI Tools”). Customer shall have no right to determine or control the manner or method of performance of the Services. Except as expressly provided in the Order Form, the Services are for Customer’s internal business use only and Customer may not use the Services to supply any services to any third party, including, without limitation, professional, consulting, training or support services.
3.1 Account, Password and Security. Customer must register with Nuvo and create an account to use the Services (an “Account”) and as part of that process Customer will be requested to provide certain information, including without limitation Customer’s and each User’s name, full address (for Customer only), phone number, and email address. By using the Services, Customer agrees to provide true, accurate, current, and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current, and complete. Customer is the sole authorized user of Customer’s Account. Customer is responsible for maintaining the confidentiality of any log-in, password, and Account number provided by Customer or given to Customer and Users by Nuvo for accessing the Services. Customer is solely and fully responsible for all activities that occur under Customer’s password or Account, even if not authorized by Customer. Nuvo has no control over the use of any user’s Account and expressly disclaims any liability derived therefrom. Should Customer suspect that any unauthorized party may be using Customer’s password or Account or Customer suspect any other breach of security, Customer agrees to contact Nuvo immediately.
3.2 Account Owner. The person or entity signing up the Services will be the contracting party (“Account Owner”) for the purposes of this Agreement and will be the person who is authorized to use any corresponding Account we provide to the Account Owner in connection with the Services; provided, however, that if Customer is signing up for the Services on behalf of Customer’s employer, Customer’s employer shall be the Account Owner. As the Account Owner, Customer is solely responsible for complying with this Agreement and only Customer is entitled to all benefits accruing thereto. Customer’s Account is not transferable to any other person or account. Customer must immediately notify us of any unauthorized use of Customer’s password or identification or any other breach or threatened breach of our security or the security of Customer’s Account.
3.3 User Compliance. Customer shall (a) be responsible for Users’ compliance with this Agreement and for payment of fees incurred by such Users, including any overage consumption, (b) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (c) prevent unauthorized access to or use of the Services, and notify Nuvo promptly of any such unauthorized access or use, and (d) use the Services only in accordance with any specifications or instructions provided by Nuvo and applicable laws and government regulations.
3.4 Restrictions on Use of the Services. Customer shall not (a) make the Services or any Deliverables available to any third party other than Users, (b) sell, resell, rent, transfer, assign, lease, or sublicense the Services or any Deliverables without Nuvo’s prior written consent, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks, (g) permit any third party, including Affiliates, to access the Services except as permitted herein or in the Order Form or as approved by Nuvo in writing, (h) create derivative works based on the Services and Deliverables, (i) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes, (j) reverse engineer the Services, (k) access the Services in order to (1) build a competitive product or service, or (2) copy any features, functions or graphics of the Services, or (l) utilize the Deliverables or any output from the Services for any machine learning, automation or artificial intelligence models or processes.
Customer further warrants and represents that Customer does not have any interest in, or motivation, status, or intent to use the Services for any journalistic, investigative, or unlawful purpose and will not do so.
Customer may not and will not access or use the Services in order to compete directly or indirectly with Nuvo, or for monitoring the Service’s availability, performance, functionality, or for any other benchmarking or competitive purposes.
Financial information of Users provided via the Services on behalf of, and for Customers, is for informational purposes only and is not a substitute for individualized professional advice. We are not a credit repair or credit services organization as defined under federal or state law, including any credit repair or credit services organization acts. We do not provide “credit services” or “credit repair” services. We do not advise or assist Users with “rebuilding” or “improving” their credit. We make no representation that we will improve or attempt to improve Users’ credit record, history, or rating. The Services are not intended to provide financial, legal, or tax advice, and we are not a financial planner, broker, or tax advisor. Before making any financial decisions or implementing any strategy, Customer should consider obtaining additional information and advice from its financial advisers.
For Customers to receive the Services, its Users must expressly authorize Nuvo and our affiliates, on behalf of Customer, to obtain consumer reports from consumer reporting agencies about Users: (1) periodically throughout Customer’s and User’s use of the Services; and (2) in connection with any other services that we offer that Customer obtain from us, in accordance with applicable law.
Nuvo shall inform Users that Nuvo may report information about User’s use of the Services to consumer reporting agencies, and that such information may be reflected on User’s credit report or other consumer reports about Users; and that the Customer is the party responsible for providing any appropriate or required notices in accordance with the Fair Credit Reporting Act (“FCRA”), and other federal and state law requirements, as applicable. As a user of a consumer report under FCRA, Customer acknowledges and agrees to abide by Customer’s obligations set forth the “Notice to Users of Consumer Reports: Obligations of Users under the FCRA,” found online at https://www.consumerfinance.gov/rules-policy/regulations/1022/n/#ImageN4
In each case, Nuvo and our Affiliates may use such consumer reports and their derivative information for purposes including, but not limited to:
Customer is the sole party responsible for providing User with and adhering to any required disclosures, notices and other requirements of the FCRA and similar state consumer disclosure laws.
Personal Information means data about an individual who can be identified from that data or by combining it with other data, although its definition may vary by jurisdiction. To the extent we collect or process any individual personal information, it is governed by our Privacy Policy.
5.1 Integration of Other Subscriptions. Customer may choose to use and integrate its direct subscription with third-party provider or licensor, such as Equifax and Creditsafe, with the Services. If Customer elects to use its own subscription, Customer acknowledges that (a) billable events under such subscription may be recorded while Customer utilizes the Services and (b) Customer shall be solely responsible for any fees, costs, or other charges associated with such third-party subscription and billable events.
To the extent Customer’s subscription includes any of the following Nuvo licensor or partner, by signing this Agreement, Customer and its Users are also agreeing to and shall comply with the applicable terms of use or licenses of such licensor or partner, as may be updated from time-to-time:
5.2 Links to Third Party Accounts. As part of the functionality of the Services, Customer may link Customer’s Account with online accounts Customer may have with third-party service providers, such as Google or Microsoft (each such account, a “Third-Party Account”) by either: (i) providing Customer’s Third-Party Account login information through the Services; or (ii) allowing Nuvo to access Customer’s Third-Party Account, as is permitted under the applicable terms and conditions that govern Customer’s use of each Third-Party Account. Customer represents that Customer is entitled to disclose Customer’s Third-Party Account login information to Nuvo and/or grant Nuvo access to Customer’s Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by Customer of any of the terms and conditions that govern Customer’s use of the applicable Third-Party Account and without obligating Nuvo to pay any fees or making Nuvo subject to any usage limitations imposed by such third-party service providers.
By granting Nuvo access to any Third-Party Accounts, Customer understands that: (1) Nuvo may access, make available and store (if applicable) any content that Customer has provided to and stored in Customer’s Third-Party Account (the “SNS Content”) so that it is available on and through the Services via Customer’s Account, including without limitation any friend lists ; and (2) Nuvo may submit and receive additional information to Customer’s Third-Party Account to the extent Customer is notified of this when Customer link Customer’s Account with the Third-Party Account. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be User Records. Depending on the Third-Party Accounts Customer chooses, and subject to the privacy settings that Customer has set in such Third-Party Accounts, personally identifiable information that Customer post to Customer’s Third-Party Accounts may be available on and through Customer’s Account on the Services.
Please note that if a Third-Party Account or associated service becomes unavailable or Nuvo’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the Services. Customer will have the ability to disable the connection between Customer’s Account on the Services and Customer’s Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT CUSTOMER’S RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH CUSTOMER’S THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY CUSTOMER’S AGREEMENT(S) WITH SUCH THIRD PARTY PROVIDERS; NUVO SHALL HAVE NO LIABILITY WHATSOEVER RELATED TO THIRD PARTY ACCOUNTS OR THIRD PARTY SERVICES. Nuvo makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Nuvo is not responsible for any SNS Content.
The Services will be provided subject to the Service Level Agreement attached here as Exhibit A. Nuvo warrants that the Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. Customer must notify Nuvo in writing of any alleged failure by Nuvo to perform Services in accordance with the foregoing warranty within three days of the delivery of the affected Services. Nuvo’s entire liability and Customer’s sole remedy for Nuvo’s failure to perform in accordance with the above warranty shall be for Nuvo to use commercially reasonable efforts to cure or correct such failure.
Nuvo shall maintain general liability, cyber liability, errors and omissions insurance with a minimum $1,000,000 primary limit for each policy. In addition, Nuvo shall obtain workers’ compensation insurance covering the performance of the Services by any of its employees as required by applicable law. These insurance limits will not affect the limitations of liability in Section 15.
During the Term, Nuvo will maintain and implement commercially reasonable business continuity and disaster recovery procedures designed to minimize disruption to the Services.
Nuvo may publicly disclose that Customer is a client and display Customer’s name, trademarks, and logos (the “Customer Marks”), promotional graphics, and related marketing designs on its websites. Customer shall cooperate with reasonable requests of Nuvo to support public relations efforts pertaining to the Services, which efforts may include: (i) participation in targeted press highlighting benefits of implementing the Services, or (ii) providing quotes, excerpts, or other forms of content, which Nuvo may use for self-promotion (collectively, the “Promotional Materials”). Customer grants Nuvo an non-exclusive, non-transferable, right to use the Customer Marks on Nuvo’s websites and marketing materials and press releases relating to foregoing; provided that Nuvo will be solely responsible for the costs related to such marketing and promotional efforts and will use Customer Marks in accordance with Customer’s trademark and logo use guidelines to the extent such guidelines have been provided to Nuvo. Customer may revoke the foregoing right to use the Customer Marks or opt out of participating in promotional activities with Nuvo at any time by providing written notice to Nuvo, provided that Nuvo will be permitted to use any Promotional Materials that have already been deployed or distributed.
10.1 Fees. Customer shall pay Nuvo fees for the Services at the rates and on the payment terms specified in the Order Form.
10.2 Expenses. Except as otherwise provided in the Order Form, Nuvo shall assume all expenses associated with rendering the Services. Any reimbursable expenses should be itemized and submitted on a monthly basis.
10.3 Late Payments. Nuvo may, in its sole discretion and upon three days prior written notice to Customer, suspend the provision of Services, as applicable, if any invoice is more than 30 days past due. This right of suspension will not limit any other of Nuvo’s rights or remedies related to Customer’s failure to pay.
10.4 Taxes. Customer shall be responsible for any taxes payable in connection with the Customer’s use of the Services (other than taxes based on Nuvo’s income) and Customer hereby agrees to indemnify Nuvo for any such taxes and related costs, interest and penalties paid or payable by Nuvo. Fees reflected on any Order Form are exclusive of sales tax. Nuvo shall add the amount of any sales taxes as separate line item(s) to the amounts invoiced to Customer under any Order Form and Customer shall remit such amounts to Nuvo.
11.1 Nuvo’s Rights. Subject to the limited rights expressly granted hereunder, Nuvo retains and reserves all rights, title and interest in and to (including all Intellectual Property rights therein) (i) itsPre-Existing Intellectual Property (including without limitation the Services andAI Tools, and any modifications thereto), (ii) any Deliverables, and (iii) any derivative works created based on the Services. No rights are granted to Customer hereunder other than as expressly set forth herein.
11.2 Customer’s Rights. Subject to the terms and conditions herein, Nuvo grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license during the Term of the applicable Order Form to copy, perform, reproduce, distribute, display and use the Deliverables for its internal business purposes only.
11.3 Customer Data. Customer shall own and retain all right, title, and interest in and to Customer Data; provided, however, that Customer hereby grants to Nuvo a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, sell, transfer, publicly display, publicly perform, transmit, stream and broadcast such Customer Data solely for (i) providing, maintaining and improving the Services and AI Tools, including as part of prompts and inputs for its AI Tools, (ii) providing Customer with access to and information about customized features, new functionality, and partner integrations, and (iii) in aggregated and anonymized form, Nuvo’s internal business purposes, including providing and optimizing its services and products and performing analytics. For clarity, Customer’s rights in this Section 11.3 do not restrict Nuvo’s ownership of or other rights to information Nuvo independently (a) develops or(b) receives from a third party.
11.4 Feedback. Customer and its Users may provide to Nuvo bug reports, suggestions, enhancement requests, recommendations or other feedback or content relating to the Services (“Feedback”). By providing any Feedback, Customer hereby assigns to Nuvo all right, title, and interest in and to the Feedback, if any. Nothing in this Agreement will restrict Nuvo’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit any Feedback for improving or otherwise modifying any of Nuvo products or services, without compensating or crediting Customer or a User.
11.5 Residual Rights. The parties acknowledge and agree that Nuvo is in the business of providing Services to third parties that are or may be substantially similar to the Services being provided to Customer. Customer agrees that Nuvo, its employees, and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know- how, methods, techniques, or skills gained or learned during the course of any Services performed under this Agreement and retained in the unaided memory of Nuvo’s employees or agents, subject to its obligations with respect to Customer’s Confidential Information pursuant to Section 12.
12.1 Limitations on Use. Each Party shall hold all Confidential Information in strict confidence and shall use such information solely for the purposes of fulfilling its respective obligations and exploiting its rights and privileges hereunder and for no other purpose, and shall not directly or indirectly disclose, provide, disseminate or otherwise make available any Confidential Information to any third party, in either case without the express prior written permission of the disclosing party.
12.2 Reasonable Efforts. Each Party agrees to employ reasonable and customary business practices to protect and secure Confidential Information from unauthorized release or distribution and to limit access to Confidential Information of the other Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations no less stringent than those herein. Additionally, Nuvo shall provide prompt notification to Customer of any unauthorized access to or disclosure of Customer Confidential Information.
12.3 Exclusions. The nondisclosure and use obligations regarding Confidential Information described herein shall have no effect: (i) to the extent that any item or data forming part of the Confidential Information is now in, or later enters, the public domain other than as a consequence of the breach of this Section 12 by the receiving party or by any other person; (ii) to the extent that any item or data forming part of the Confidential Information is lawfully known by the receiving party prior to the provision of such information by the disclosing party; or (iii) to the extent that the receiving party is entitled to release Confidential Information as required to prosecute or defend any claim under this Agreement. In addition, if the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information.
12.4 Third Party Confidential Information. Each Party may receive from third parties such third parties’ Confidential Information, subject to a duty to maintain the confidentiality of such information and to use it only for certain limited purposes. The receiving party shall not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party, other than in the assigned duties and to the extent needed to be known, as applicable, any such Confidential Information.
12.5 Ownership and Return of Confidential Information. Except as otherwise provided herein, as between the parties, any Confidential Information disclosed under this Agreement is and remains the disclosing party’s absolute and exclusive property and is its unique and valuable asset. Upon termination of this Agreement, or earlier upon the disclosing party’s request, the receiving party shall promptly return all Confidential Information, including all copies, that was received in a non-electronic form and shall destroy all information received electronically, provided, however that (a) the receiving party may retain copies of disclosing party’s Confidential Information to the extent that such retention is required to demonstrate compliance with applicable law or governmental rule or regulation and in its archives for backup purposes subject to the confidentiality provisions of this Agreement, and (b) Nuvo may retain copies of Trading Partner Records in connection with its Service. All such retained Confidential Information will remain subject to this Section 12.
12.6 Equitable Relief. If a receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of confidentiality protections hereunder, such party agrees that such breach could cause disclosing party irreparable injury, for which monetary compensation would not provide adequate compensation, and disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without proving actual damage or posting bond or other security, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
Each party represents and warrants that (i) it is a duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has and will return throughout the Term the full right, power, and authority to enter into this Agreement and perform its obligations hereunder, (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms. Customer further represents and warrants that they are fully and solely responsible for providing required and appropriate notices with respect to consumer credit reports that is in compliance with FCRA and applicable state law requirements.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6, THE SERVICES ARE PROVIDED TO CUSTOMER “AS-IS” AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NUVO MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICES OR THE CONTENT OF ANY SITES LINKED TO THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY: (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S ACCESS TO AND USE OF THE SERVICES EXCEPT AS CAUSED BY NUVO’S BREACH OF ANY WARRANTIES IN THIS AGREEMENT OR CAUSED BY NUVO’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (III) EVENTS BEYOND NUVO’S REASONABLE CONTROL. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT ALL USE OF THE DELIVERABLES AND THE SERVICES ARE AT CUSTOMER’S SOLE RISK. NUVO WILL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT LOSSES INCURRED IN CONNECTION WITH CUSTOMER’S USE OR INABILITY TO USE THE SERVICES OR CUSTOMER’S RELIANCE ON OR USE OF THE SERVICES AND INFORMATION PROVIDED, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OR ANY FAILURE OF PERFORMANCE.
15.1 By Nuvo. Nuvo shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party (“Claim”) alleging that the use of the Service as permitted hereunder infringes or misappropriates the Intellectual Property rights of a third party, and shall indemnify Customer for any damages and costs finally awarded against, Customer in connection with any such Claim; provided that Customer (i) promptly gives Nuvo written notice of the Claim, (ii) gives Nuvo sole control of the defense and settlement of the Claim (provided that Nuvo may not settle or defend any Claim unless it unconditionally releases Customer of all liability), and (iii) provides to Nuvo all reasonable assistance, at Nuvo’s expense.
15.2 By Customer. Customer shall defend Nuvo against any Claim made or brought against Nuvo by a third party (i) alleging that the Customer Data, or Customer’s use of the Service in violation of this Agreement, infringes or misappropriates the rights of a third party or violates applicable law, (ii) alleging failure to provide or adhere to the disclosures, notices, and other requirements of FCRA and similar state consumer disclosure laws, or (ii) resulting from or relating to Customer’s gross negligence, willful misconduct or breach of this Agreement, and shall indemnify Nuvo for any damages and costs finally awarded against Nuvo in connection with any such Claim; provided that Nuvo (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Nuvo of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s cost.
15.3 Sole and Exclusive Remedy. This Section 15 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.
15.4 Limitation of Liability. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISION IN SECTION 12, EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 15, AND CUSTOMER’S BREACH OF SECTION 3.4, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS AND FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY NUVO). EXCEPT FOR CUSTOMER’S OBLIGATIONS TO PAY FEES PURSUANT TO SECTION 10, CUSTOMER’S BREACH OF SECTION 3.4, EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 15, AND CLAIMS FOR ATTORNEY’S FEES AND OTHER LITIGATION COSTS EITHER PARTY IS ENTITLED TO RECOVER AS A PREVAILING PARTY IN ANY ACTION, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER DUE TO NEGLIGENCE OR OTHERWISE, OR IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
16.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in effect for the Term set forth in the Order Form.
16.2 Termination for Cause. Either Party may terminate this Agreement and/or any Order Form for cause (i) upon 30 days prior written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately upon written notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; provided, however, that Nuvo may terminate this Agreement immediately for Customer’s non-payment of fees and reimbursable expenses when due, if such non-payment remains uncured for 10 days after notice thereof. If Nuvo terminates this Agreement for cause, then Customer shall pay, in full, any remaining unpaid amount for the remainder of the Term within 30 days after delivery to Nuvo of written termination notice in accordance with the notice provisions set forth below.
16.3 Suspension. Nuvo may, at any time, stop (permanently or temporarily) providing the Services (or any features within the Services) to Customer at Nuvo’s sole discretion, and/or terminate all or some of Customer’s rights under this Agreement if:
(i) Customer or its Users has breached any provision of the applicable user agreement (including any such agreement of a licensor or a partner), and Nuvo shall have no obligation to refund to Customer any fees already paid;
(ii) there is an attack on the Services, the Services are accessed or manipulated by a third party without Customer’s consent, or there is another event for which Nuvo reasonably believes that the suspension of Customer’s access to the Services is necessary to protect Nuvo’s network or its other customers;
(iii) Nuvo is required to do so by law; or
(iv) The licensor or the partner offering its products or services to Nuvo has terminated its relationship with Nuvo or ceased to offer such products or services.
16.4 Effects of Termination. Upon any expiration or termination of the Agreement:
(i) All User accounts associated with this Agreement shall immediately terminate or will lose access to paid features.
(ii) Customer shall promptly pay Nuvo all unpaid fees and reimbursable expenses incurred by Nuvo to the date of termination. Customer’s payment obligation for any fees and reimbursable expenses owed to Nuvo shall survive the termination of this Agreement.
(iii) Customer shall have access to its account for 90 days from the date of expiration or termination to export Customer Data at its expense. Nuvo reserves the right to delete all Customer Data from its systems after such 90-day period unless retention is required by applicable law, a court order, or regulatory obligations.
16.5 Survival. Sections 1, 4, 10 through 15, 16.4, 16.5, and 17 shall survive any termination or expiration of this Agreement.
17.1 Notices. Any notice made pursuant to this Agreement will be in writing and will be deemed delivered on (i) the date of delivery if delivered personally, (ii) three calendar days after mailing if duly deposited in registered or certified mail or express commercial carrier, or (iii) the date of delivery if addressed to the Party to be notified at the email address shown in the Order Form or on the signature page, or to such other email address as may be hereafter designated by a Party.
17.2 Entire Agreement; Amendments; Waiver. This Agreement, including the Order Form and exhibits, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of a conflict or inconsistency between any term of this Agreement and the Order Form, the terms of the Order Form shall control. This Agreement may be amended or modified only by the mutual written agreement of authorized representatives of the Parties. No term or provision hereof shall be considered waived by a Party, and no breach excused by a Party, unless such waiver or consent is in writing signed by such Party. The waiver by a Party of, or consent by a Party to, a breach of any provision of this Agreement by the other Party shall not operate or be construed as a waiver or excuse of any other or subsequent breach.
17.3 Assignment. Neither Party shall assign this Agreement without the written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement, without the other Party’s consent, to any Affiliate, or in the event of a merger, acquisition, or sale of all or substantially all of its assets, provided that such assignee agrees in writing to perform the obligations of the assigning Party hereunder, whether incurred prior to or after such assignment.
17.4 Dispute Resolution. The Parties agree that prior to filing any lawsuit regarding any dispute arising out of or related to this Agreement, they shall meet and confer in good faith regarding possible alternative dispute resolution methods such as mediation or binding arbitration before a neutral mediator/arbitrator agreed upon by the parties. The venue for any mediation, arbitration, or lawsuit shall be conducted in San Francisco, California, unless the Parties agree in writing to a different venue.
17.5 Governing Law; Exclusive Venue; Waiver of Jury Trial. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Each of the parties to this Agreement hereby irrevocably and unconditionally submits, for itself and its assets and properties, to the exclusive jurisdiction of any state or federal court sitting within the County of San Francisco, California, and any appellate court or court of appeals from any thereof, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, or for recognition or enforcement of any judgment relating thereto. The Parties agree, waive all defenses relating to, and irrevocably consent to the jurisdiction and venue of all courts situated in California for the resolution of all disputes related to this Agreement. To the extent permitted by applicable law, each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
17.6 Independent Contractor. It is the express intent of the parties that Nuvo is an independent contractor and not an employee, agent, joint venturer, or partner of Customer. Nuvo shall be solely responsible for paying all necessary employment taxes for its personnel and to report employees’ income and withhold all required taxes from such income, as may be required by law.
17.7 Force Majeure. If either Party cannot perform any of its obligations because of any act of God, court order, fire, riot, war, or any and other causes beyond a Party’s reasonable control and which it could not have prevented through the exercise of reasonable care and precautions (a “Force Majeure Event”), then the non-performing Party shall: (i) promptly notify the other Party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event.
17.8 Severability. The invalidity or unenforceability of any one or more of this Agreement’s terms or provisions shall not impair or affect the validity or enforceability of the remaining terms or provisions, and this Agreement shall be construed and enforced as if the invalid or unenforceable term or provision had not been contained in this Agreement. If any term or provision contained in this Agreement shall be found to be excessively broad as to duration, scope, or subject, the term or provision shall be limited and reduced so as to be enforceable under applicable law.
17.9 Titles and Construction. The titles and captions in this Agreement are for convenience of reference only and shall not control or affect the interpretation or construction of any of its terms or conditions. This Agreement shall not be construed against or in favor of any Party based on the identity of the drafter of this Agreement, or any term or provision in it.
17.10 Third Party Beneficiaries. Nuvo’s licensors, partners and other persons and entities who have provided services to Nuvo for inclusion in the Services are intended third party beneficiaries to this Agreement as it applies to their respective products and services supplied to Nuvo. Except as specifically provided in this paragraph, a person who is not a party to this Agreement has no right to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Agreement.
17.11 Other Remedies. The duties, obligations, rights and remedies under this Agreement are in addition to, and not in limitation of, those otherwise imposed by, or available under, applicable law.
17.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same Agreement. This Agreement, to the extent signed and delivered by means of e-mail, a facsimile machine or other means of electronic transmission, shall be treated in all manner and respects and for all purposes as an original signature, agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
17.13 Notices and Consent to Receive Notices Electronically. Customer consents to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on the website. Customer agrees that all Notices that we provide to Customer electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all Notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
1. Introduction
This policy outlines the uptime and availability levels that Nuvo Technologies, Inc. (“Nuvo”) strives to provide to customers in relation to the use of our software, services, and website (collectively referred to as the “Services”).
2. Service Commitment
Nuvo is dedicated to delivering reliable and high-quality services. Our aim is to ensure maximum uptime and optimal performance for all our Services.
Nuvo endeavors for the Services to maintain an uptime percentage of 99.9%, measured monthly, during which Services are operational (the “Service Level Availability”). Any downtime resulting from scheduled maintenance, outages of third party connections or utilities, or other reasons beyond Nuvo’s control shall be excluded from such Service Level Availability.
Uptime is calculated monthly as follows: Uptime Percentage= (1−Total Downtime Minutes / Total Minutes in the Month) × 100%
4. Scheduled Maintenance
For the optimal performance of our Services, scheduled maintenance may occasionally be necessary. Nuvo shall use commercially reasonable efforts to schedule maintenance over weekends or outside of peak traffic periods and shall notify customers at least 48 hours prior to such maintenance activities. Scheduled maintenance will be announced by in-product announcement and email notifications.
5. Service Credits
Unless otherwise stated in an agreement between Nuvo and the customer regarding the Services, customer’s sole and exclusive remedy, and Nuvo’s entire liability, for Nuvo’s failure to meet the Service Level Availability shall be that for each period of downtime, customer shall be entitled to request a credit to be applied against the fees owed by customer, in the amounts set forth below (1.1 “Affiliate(s)” means any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the Party. For purposes of this definition, the term “Control” means the power (or, as applicable, the possession or exercise of the power) to direct, or cause the direction of, the management, governance, or policies of a given entity, directly or indirectly, through any applicable means (whether through the legal, beneficial, or equitable ownership, of more than 50% of the aggregate of all voting or equity interests or securities of such entity, through partnership, or through some other form of ownership interest, by contract, or other applicable legal document, or otherwise)” means the power (or, as applicable, the possession or exercise of the power) to direct, or cause the direction of, the management, governance, or policies of a given entity, directly or indirectly, through any applicable means (whether through the legal, beneficial, or equitable ownership, of more than 50% of the aggregate of all voting or equity interests or securities of such entity, through partnership, or through some other form of ownership interest, by contract, or other applicable legal document, or otherwise)”):
Customer may request such Fee Credit by submitting notice to Nuvo via an email to support@nuvo.com within 30 days following the affected month. Fee Credits will be applied towards future Services, with no refunds or cash value offered.
6. Support Services
Nuvo offers support services to assist with any questions or issues related to the Services from 6am Pacific Time to 5pm Pacific Time, Monday to Friday. Customers can reach out to Nuvo's support team via email, phone, or in-product chat. Our response times are as follows:
8. Contact Information For inquiries regarding this policy or to report service issues, please contact:
This policy reflects Nuvo's commitment to providing quality service and reliability to our customers, underscoring our dedication to customer satisfaction and continuous improvement.