THE NOOSH TECHNOLOGY INCLUDES WITHOUT LIMITATION NOOSH SOFTWARE, ANY NOOSH APPLICATIONS, HARDWARE INFRASTRUCTURE, ANY ADDITONAL TECHNOLOGY PROVIDED BY NOOSH (INCLUDING ANY THIRD PARTY TECHNOLOGY) AND ANY ASSOCIATED DOCUMENTATION (THE “TECHNOLOGY”). THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN YOU AND NOOSH, INC. (“NOOSH”) IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT SELECT THE “ACCEPT” RADIO BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY THESE LICENSE TERMS, YOU MAY NOT LOG INTO OR USE THE TECHNOLOGY.
COMPANY SHALL NOT USE THE NOOSH TECHNOLOGY FOR ANY OTHER PURPOSE EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT. BY SELECTING THE “ACCEPT” RADIO BUTTON AND SUBMITTING, COMPANY ALSO ACKNOWLEDGES AND AGREES THAT IT SHALL BE BOUND BY THE TERMS AND CONDITIONS OF ANY LICENSE AGREEMENT BETWEEN NOOSH AND THE THIRD PARTY VENDOR.
LICENSE. Company shall have the nonexclusive, nontransferable right to use the Technology for the sole purpose of processing and monitoring print jobs involving Company’s production and sale of printed materials or related smart forms for and to its customers and partners (“Buyers”). Company may not make any copies of the Technology. Company shall not: (a) remove any product identification, copyright notices, or other notices or proprietary restrictions from the Technology; (b) use the Technology for any commercial use other then as specifically agreed to in writing by Noosh; (c) transfer, sell, assign, license or otherwise convey the Technology to another party without Noosh’s prior written consent; or (d) modify or reproduce the Technology. Any content that is provided as part of or for use with the Technology may only be used in conjunction with the Technology and may not be used separately from the Technology without the written consent of Noosh and any applicable third party vendor.
NO OTHER LICENSE. Except as expressly set forth in this Agreement, no license or right is granted to theCompany, by implication, estoppel, or otherwise, under any patents, copyrights, maskworks, trade secrets, or other intellectual property by virtue of entering into this Agreement, or using the Technology.
OWNERSHIP OF PROGRAMS. The Technology is the proprietary product of Noosh. Company acquires only the right to use the Technology and does not acquire any rights, express or implied, in the Technology other than those specified in this Agreement. Noosh shall at all times retain all rights, title, interest, including intellectual property rights, in the Technology.
ACCOUNT AND PASSWORD. Company will receive an account id, usernames and passwords to gain access to and use the Technology. Company is responsible for maintaining the confidentiality of its usernames and passwords, and is fully responsible for all activities that occur under its usernames or account. Company agrees not to allow a third party to use its account, usernames or passwords at any time. Noosh cannot and will not be liable for any loss or damage arising from unauthorized use of Company’s account, usernames or passwords.
EXCLUSION OF WARRANTIES. THE TECHNOLOGY IS PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY OTHER WARRANTY. NOOSH DISCLAIMS ALL LIABILITY, DIRECT OR INDIRECT, FOR ANY CLAIM RELATING TO THE TECHNOLOGY, ANY THIRD PARTY VENDOR PRODUCT AND CONTENT, OR THE USE OF TECHNOLOGY THEREIN INCLUDING WITHOUT LIMITATION CLAIMS ARISING FROM PRODUCT LIABILITY, PERSONAL INJURY, DEATH, OR INFRINGEMENT OF ANY PROPRIETARY RIGHTS.
LIMITATION OF LIABILITY. NOOSH SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY COMPANY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF NOOSH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
VENUE ONLY; RELEASE. Noosh is not involved in the actual transaction between Company and other Technology users except to provide the venue for the Technology. Accordingly, in the event that Company has a dispute with one or more Buyers or other Technology users, Company releases Noosh (and Noosh’s agents and employees) from claims, demands and damages (actual and 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.
INDEMNIFICATION. Company agrees to defend, indemnify and hold harmless Noosh and its agents, directors, officers and affiliates from and against any and all claims, losses, liabilities and damages of any kind (including reasonable attorneys’ fees) relating to Company’s access to and use of the Technology and/or breach of this Agreement, except to the extent resulting from the gross negligence or willful misconduct of Noosh.
NONINFRINGEMENT BY COMPANY. Company agrees that Company’s use of the Technology and the use of information it places within the Technology shall not: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including without limitation those governing export control, dealer agreements, unfair competition, anti-discrimination or false advertising); or (c) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing or obscene.
TERM. This license is effective until terminated. Noosh may terminate this license with or without cause at any time. Company may terminate this license at any time by notifying Noosh in writing or by email. The license shall also terminate automatically upon any breach of the terms of this license by You or the Company. In the event of any termination, Noosh may immediately remove all Company users from the use of the Noosh Software and Technology.
MISCELLANEOUS. Noosh may audit Company’s use of the Technology. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. If there is a conflict between the terms of this Agreement and the applicable terms of a license agreement embedded on or within the software itself, the terms of this Agreement shall prevail. It is the intent of each party, and each party agrees, that this Agreement is a binding contract by and between the parties, and shall have the full force and effect of such, even if this Agreement is unsigned by either party. However, this Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; and no other act, document, usage shall be deemed to amend or modify this Agreement. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of California as applied to contracts entered into by residents thereof and performed entirely within the state. Company may not export the Technology in violation of applicable export laws and regulations. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Santa Clara County, California and the parties consent to the jurisdiction and venue of such court. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover reasonable attorneys’ fees from the other party.