Noitom International, Inc. Commercial License

Last Updated: 1/1/2018

THIS COMMMERCIAL LICENSE (“COMMERCIAL LICENSE”) IS INTENDED AS A SUPPLEMENT TO THE NOITOM TERMS OF SERVICE TO ALLOW CERTAIN COMMERCIAL USES OF NOITOM PRODUCTS AND SERVICES. PLEASE READ THIS COMMERCIAL LICENSE IN ITS ENTIRETY. BY PROCEEDING AND AGREEING TO THIS COMMERCIAL LICENSE, YOU REPRESENT THAT (1) YOU HAVE READ AND AGREE TO THESE TERMS, (2) YOU ARE OF THE LEGAL AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU RESIDE, AND (3) YOU HAVE AUTHORITY TO BE BOUND BY, OR TO BIND YOUR ORGANIZATION, TO THESE TERMS. REFERENCE TO “YOU” AND “YOUR” SHALL REFER TO YOU, AS WELL AS THE IDENTIFIED ORGANIZATION AND ANY AND ALL OF ITS EMPLOYEES, AGENTS, AND CONSULTANTS.

LIKE THE NOITOM TERMS OF SERVICE, THIS COMMERCIAL LICENSE INCLUDES A PROVISION REGARDING BINDING ARBITRATION OF DISPUTES (OTHER THAN CERTAIN SPECIFIED INTELLECTUAL PROPERTY CLAIMS) AND A WAIVER OF CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. PLEASE READ THE “DISPUTE RESOLUTION” SECTION (SECTION 10) IN ITS ENTIRETY.

IF YOU DO NOT AGREE TO ANY OF THE TERMS, OR DO NOT HAVE THE AUTHORITY TO BIND THE IDENTIFIED ORGANIZATION TO ANY OF THE TERMS, THEN DO NOT COMPLETE YOUR PURCHASE OR ATTEMPT TO AGREE TO THESE TERMS, OR OTHERWISE USE OUR PRODUCTS FOR COMMERCIAL PURPOSES.

Noitom is pleased to provide you a license to use Noitom physical goods and software for commercial uses (collectively, the “Products”). This Commercial License applies only to the Products purchased at the same time you are presented with, and ultimately agree to, this Commercial License, and shall govern your use of the Products in connection with your agreement to this Commercial License. Your use of the Products will also be subject to the Noitom Terms of Service, available at https://www.noitomint.com/legal/terms-of-service/ as may be updated by Noitom from time to time (“Terms of Service”). The Terms of Service are incorporated herein by reference, and shall remain unchanged and in full force and effect except to the extent superseded below by the terms and conditions of this Commercial License. In the event of any conflict between the terms and conditions of this Commercial License and the Terms of Service, the terms of this Commercial License will prevail. Capitalized terms that are used but not defined herein shall be as defined in the Terms of Service. The terms of this Commercial License do not alter in any way the terms or conditions of any other separate agreements you may have with Noitom for products, services or otherwise, except that the cancellation and return rights, or other terms related to the purchase of hardware in the Terms of Service will not apply. The terms of sale presented at the point of purchase shall apply, and ALL SALES ARE FINAL and you shall have no right of return except as may be covered by a limited warranty.

This Commercial License was written in English. To the extent any translated versions of this agreement conflicts with the English version, the English version prevails.

1. Commercial License

We hereby grant you a limited, nonexclusive license to use the Products procured in connection with this Commercial License for commercial purposes, conditioned on your compliance with the terms of this Commercial License. Commercial use and purposes under this Commercial License shall mean any use which is directly or indirectly undertaken for profit, promotion, monetary gain, or commercial advantage, or to otherwise benefit a business, organization, academic institution or any other not-for-profit organizations. You will be solely responsible for obtaining any additional hardware or software which may be required for full operation of the Products in connection with the commercial use. You may resell the Products only if doing so directly to a subsequent end user as part of a value-added package or service, and that end user will be using the Products for commercial purposes. A “Value-Added Reseller” is a person or entity selling the Products to commercial users to deliver your service or program offering. If selling the Products as a Value-Added Reseller, you agree that the Products will be provided un-altered in any way when sold or transferred to the end user and you agree to present a copy of these Commercial License terms to that end user, and ensure that they agree and abide by the terms.

2. Content

Unless you are purchasing content directly from Noitom, through a Noitom service or subscription service, or receiving it as part of a demo for non-commercial use, you are solely responsible for acquiring and maintaining all appropriate licenses and rights to any content that will be accessed, installed or used in connection with your commercial use.

3. Support

If you require support for the Products, you will contact Noitom at support@noitomint.com or at the contact number provided by your support agent or via your authorized dealer.

4. Use of Noitom Marks and Marketing

You are not granted any licenses to use the Noitom name, trademarks, or any other service marks (“Noitom Trademarks”) unless otherwise agreed, and will not: (a) use any Noitom Trademarks in any manner to communicate or suggest any affiliation, sponsorship, or other connection between Noitom and you or your usage of the Products, or (b) take any action that may harm or adversely affect the Noitom Trademarks or the goodwill associated with the Noitom Trademarks. Noitom reserves all rights in and to the Trademarks and the goodwill associated therewith. If Noitom later provides approval to use Noitom Trademarks, you shall not acquire, directly or by implication, any rights or license in the Noitom Trademarks except as expressly provided.

5. Your Responsibilities

In connection with the commercial use, you will: (a) be solely responsible for all aspects of the commercial use of the Products, including the use of the Products by you, your affiliates, employees, agents, subcontractors, and any other participants you allow to use the Products in connection with the commercial use (“Participants”); (b) abide by all operational instructions, directions and guidelines in the use of the Products, including all warnings found at https://www.noitomint.com/legal/health-warnings, and ensure that all Participants will be provided information and guidance in order to do the same; (c) ensure that each Participant is age 13 or older; (d) be solely responsible for complying with all applicable laws, rules, and regulations in your use, or any Participant use, of the Products; (e) not remove, alter, or obscure any warnings, disclaimers, notices or other information, device, or software embedded in, or provided with, the Product or its packaging; (f) ensure that all Participants also comply with the relevant provisions of this Commercial License; and (g) be solely responsible for any property damage, personal injury, or other damages that may occur in connection with your commercial use of the Products, unless the damage or injury is caused solely by the negligence of Noitom. Noitom may not be able to provide support to you if you transport or use the Products in countries or territories not supported by Noitom, and makes no representations or warranties related to the compliance of the Products in unsupported countries or territories. As a result, consistent with this Section 5, you will be responsible for all legal, regulatory, and other logistical and compliance obligations which may arise in connection with use or transport of the Products – whether in supported or unsupported territories. Please see https://www.noitomint.com/legal/territories for information about Noitom shipping territories.

6. Additional Disclaimers

Except as may be provided in a separate limited warranty, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND NOITOM EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, C DOES NOT REPRESENT OR WARRANT THAT: (A) THE PRODUCTS WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; (B) THE OPERATION OF THE PRODUCTS WILL BE SECURE, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE; OR (C) ANY DEFECTS IN THE PRODUCTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY NOITOM WILL CREATE A WARRANTY. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION 6 MAY NOT APPLY.

6. Limitation of Liability

IN ADDITION TO THE LIMITATIONS OF LIABILITY IN THE TERMS OF SERVICE, IN NO EVENT SHALL NOITOM BE RESPONSIBLE FOR DAMAGES OF ANY KIND – INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, ANY DEFICIENCIES OR FAILURES OF THE PRODUCTS WHICH LEAD TO AN INABILITY TO OPERATE OR USE THE PRODUCTS.

7. Indemnification

You agree to indemnify, hold harmless, and defend Noitom, its affiliates, and their respective directors, employees, agents, and representatives, from and against any and all actions, disputes, proceedings, or claims and associated damages, expenses, liabilities, losses and costs, including reasonable fees of attorneys and other professionals, arising out of or relating to (a) a breach or alleged breach of this Commercial License, (b) your violation of any applicable laws, rules, or regulations, (c) your or your Participants’ violation of the intellectual property or other proprietary rights of any third parties, and (d) any personal injury or property damage caused by your, or your Participants’, actions, omissions, or use of the Products.

8. Authority

You represent that you have the authority to agree to the terms of this Commercial License. If you are an employee or agent, you confirm that you have the authority to bind your organization to these terms without any further action, and reference to “you” and “your” shall refer to you, your employer/organization and its employees and consultants.

9. Dispute Resolution

Solely for the purposes of adjudicating disputes arising under this Commercial License, Section 18 (Dispute Resolution) of the Terms of Service will be amended as follows (the “Amended Dispute Resolution Terms”):

1. “Disputes” will be deemed to refer to disputes arising under this Commercial License, and shall further include any disputes hereunder involving developers of Third Party Content, or our other Noitom agents, licensors, vendors, content providers, and other third party collaborators with respect to the Products (“Third Party Collaborators”).
2. You agree and acknowledge that the Third Party Collaborators are intended third party beneficiaries of these Amended Dispute Resolution Terms.
3. You waive any right to raise Disputes in small claims court.
4. The AAA Consumer Arbitration Rules shall not apply to Disputes under these Amended Dispute Resolution Terms. Any such Disputes shall be submitted to the AAA if you are resident in or otherwise do business in the United States. Otherwise, such arbitration will be submitted to the Secretariat of the International Court of Arbitration of the International Chamber of Commerce (“ICC”).
5. References to the AAA in Section 18 (Dispute Resolution) of the Terms of Service will be deemed to refer to the AAA or ICC, as applicable.
6. Any AAA arbitration will be conducted under the then-current AAA Commercial Arbitration Rules. Any ICC arbitration will be conducted under the then-current Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”). The ICC Rules are available at https://cdn.iccwbo.org/content/uploads/sites/3/2017/01/ICC-2017-Arbitrat....
7. References to the “AAA Rules” in Section 18 (Dispute Resolution) of the Terms of Service shall be deemed to refer to the AAA Commercial Arbitration Rules or the ICC Rules, as applicable. Any arbitration shall be conducted in the English language. The UN Convention on Contracts for the International Sale of Goods shall not apply.
8. Any filing and arbitrators’ fees and expenses shall be shared equally by Noitom and you. Each party shall be entitled only to the amount awarded to such party by the applicable arbitrator. The provisions in Section 18.5 (Process) of the Terms of Service regarding arbitration awards greater than our last written settlement offer shall not apply to awards issued by an arbitrator under these Amended Dispute Resolution Terms.
9. If you elect to opt-out of the agreement to arbitrate pursuant to Section 18.6 (Right to Opt Out) of the Terms of Service, the license granted to you under Section 1 of this Commercial License will terminate immediately upon your delivery of the opt-out notice, and FOLLOWING DELIVERY OF THE OPT-OUT NOTICE, YOU MUST TERMINATE ANY USE OF THE PRODUCTS UNDER THIS COMMERCIAL LICENSE.

9. Miscellaneous

This Commercial License shall not be construed so as to create a joint venture or partnership between Noitom and you or to impose upon Noitom any obligations for any losses, debts, liabilities or other obligations incurred by you in connection with the commercial uses or otherwise. If a provision of this Commercial License is held invalid under any applicable law, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions shall remain in full force and effect.

10. Special Provision for German Customers

Where you are a licensee based in Germany using the Products under the terms of this Commercial License, the Terms of Service shall continue to be modified in the manner set out at https://www.noitomint.com/legal/germany. As a result, Section 6 (Additional Disclaimers) and Section 7 (Limitation of Liability) of this Commercial License will not apply