Terms of Use

These Terms of Use (collectively with the Order Summary and all Appendices,the “Agreement”) are a binding legal agreement between the customer set forth on the attached Sales Order (“Customer,” “Subscriber” or “you”) and Notch regarding your use of the Notch proprietary online platform for design, procurement and maintenance business management (the “Service”). Please read this Agreement carefully. By accessing or using the Service, you accept this Agreement and agree to use the Service in compliance with the foregoing. The terms “Subscriber,” “you,” “your,” “yours,” and “authorized user” refer to you, the account administrator, any individual user that is authorized by an account administrator, or any entity using the Service on your behalf. If you are accepting this Agreement on behalf of an entity, you represent and warrant that you have the authority to do so. The terms “Notch,” “we,” “us,” and “our” refer to Notch and our affiliates, as applicable.

1. Account Registration

You must register for and maintain an account with us to use the Service. When registering, you must provide accurate and complete information and promptly update this information. If you provide any information that is inaccurate or incomplete, or we have reason to believe that the information is inaccurate or incomplete, we may suspend or terminate your account and your use of the Service. Only authorized users may use your account to use the Service and conduct other activities with us. You are responsible for all activities that occur through your account. To protect your account from unauthorized use, keep your user identification and password secure and those of your authorized users. Please notify us immediately of any unauthorized use of your account or any other breach of security. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by Notch to prevent or terminate unauthorized use of the Service.

2. License

Subject to the terms and conditions of this Agreement and the Sales Order Agreement, Notch grants to you a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 16), non-sublicensable right during the term of this Agreement for the use of the Service by the you and your personnel solely in connection with your internal business operations.

3. Support and Services

If you are current with payment of Service fees, Notch will provide you with its standard technical support services relating to the Service, in addition to any other level or nature of services and support detailed in the Agreement Package.

4. Fees and Payment

You will pay the fees for the Service subscription and other services selected by you at the time and on the terms specified in your Agreement Package. You authorize Notch (either directly or through its third party payment processor) to charge the credit card identified by you (which you represent and warrant that you are authorized to use) or to process an ACH payment from the account(s) identified by you for all applicable fees for your subscription in US dollars, including all applicable taxes. If Notch does not receive payment from your credit card provider or by means of our ACH transfer or otherwise as agreed, you agree to pay all amounts due upon demand, in US dollars, and Notch may suspend your access to the Service. All sales are final and Notch will not issue refunds except as expressly provided in this Agreement. You will promptly reimburse Notch for any costs incurred in connection with collection of past-due amounts, including attorneys’ fees, and Notch may, as a result of late payment, among other remedies available to it, discontinue its provision of the Service to you in accordance with this Agreement.

5. Term and Termination

The term of this Agreement is set out in the Sales Order in Appendix 1. If nototherwise provided, subscriptions are month-to-month and will automatically renew for additional successive monthly terms unless terminated as specified in this Section. For the purposes of providing notice of non-renewal as described in this paragraph, notice via email will be deemed sufficient. Upon termination, unless otherwise provided, your access to the Service and any information stored by the Service will also terminate. Notch may terminate this Agreement at any time upon 30 days’ prior written notice for its convenience, and will refund to you a pro-rata portion of any unused, prepaid fees.
We may immediately, without notice, suspend or terminate your access to the Service and terminate this Agreement for any of the following reasons: (a) you breach any provision of this Agreement; (b) you seek to hack the security mechanisms of the Service or we otherwise determine that your use of the Service poses a security risk to us or to another user of the Service; (c)you introduce a malicious program into the network or a virtual machine instance; (d) you cause network interference that affects Service performance for other customers; (e) you use the Service in a way that we determine, in our sole discretion, is abusive or disrupts or threatens the performance or availability of the Service; or (e) we receive notice or we otherwise determine, in our sole discretion, that you may be using the Service for an illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party.
If this Agreement is terminated for any reason: (i) you will pay to Notch any fees or other amounts that have accrued prior to the effective date of the termination; (ii) any and all liabilities accrued prior to the effective date of the termination will survive; and (iii) the following sections will survive: Sections 4, 5, 8 through 14, and 18 through 22. Unless otherwise provided byseparate agreement, following termination and upon your request and subject to any specific restrictions applicable to you or your data, Notch will make reasonable efforts to export and provide to you in electronic format the information you have uploaded to the Service (service fees may apply), but Notch is not obligated to retain that information following any termination and makes no representation to the integrity, completeness or timeliness of any data so exported.

6. Access to the Service; Modifications to the Service

We do not provide you with the equipment to access the Service. You are responsible for all fees charged by third parties to access the Service (e.g., Internet access charges). We reserve the right to modify all or a part of the Service through patches, enhancements, updates, upgrades or bug fixes at any time without notice. We will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, except that if we permanently discontinue the Service we will provide you, as your sole and exclusive remedy, and our sole and exclusive liability, a pro-rated refundrepresenting the unused (as of the date of termination) portion of any subscription fees that you have paid in advance.

7. Restrictions

You must comply with all applicable laws, including privacy laws, when using the Service; for the avoidance of doubt, you will be responsible for notifying parties that telephone calls are being recorded, to the extent required. Except as may be expressly permitted by applicable law or authorized by us in writing, you will not, and will not permit anyone else to: (a) modify or reverse engineer any portion of the Service; (b) rent, lease, or otherwise permit any third party to use any portion of the Service; (c) circumvent or disable any security or other technological features or measures of any portion of the Service; (d) use the Service in a manner that threatens the integrity, performance, or availability of the Service; nor (e) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Service.

8. Ownership

Except for the rights to access the Service expressly granted to you in this Agreement, we retain all right, title, and interest in and to the Service, including all related intellectual property rights and derivative works. The Service is protected by applicable intellectual property laws, including UnitedStates copyright law and international treaties.

9. Feedback

If you provide feedback to us regarding the Service (“Feedback”), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us a non-exclusive, perpetual and irrevocable license to use the Feedback in any manner and for any purpose.

10. Information

You may upload information to the Service. In addition, we may collect registration and other information about your use of the Service. You hereby grant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to use and exploit all information that you upload and all information that we collect internally in any way subject to Notch’s obligation of non-disclosure in Section 11.

11. Confidentiality

Subject to Notch’s rights under Sections 10, 16, and 17, Notch will not disclose to any third party, without your consent, the information or material you upload to the Service. Notch may, however, disclose that information or material if required by law or if Notch reasonably determines that disclosure is necessary to prevent harm to Notch or any third party. Your consent to disclosure shall be deemed given in the event that you access Notch or your Notch data through a third party application, solely with respect to disclosure in connection with your use of such third party application. If Notch is required by law to disclose any of that information or material, Notch will make reasonable efforts to provide you with prompt written notice of that requirement prior to disclosure. Further, if you register for the Service through a referral or other promotional partner or through an industry or trade group with whom we have a commercial relationship, we may disclose information about your account to that referral partner or industry group in connection with that commercial relationship. For the avoidance of doubt, however, Notch will not directly contact your customers or make personally identifying or contact data regarding your customers available to any third party (other than as directed by you) without your consent. Such consent will be deemed given, however, in the event that you access or interact with Notch or your Notch data through a third party application, solely with respect to disclosure in connection with your use of such third party application.

12. Warranties; Disclaimer

Notch warrants that the Service will, during the term of your subscription, materially conform to any description of the Service published by Notch. As Notch’s sole and exclusive liability for breach of this limited warranty, and your sole and exclusive remedy, Notch will make reasonable efforts to correct the non-conformity.
You represent and warrant that: (a) You will not upload any information to theService unless you have all permissions or licenses necessary to do so and to authorize Notch’s use of that information in accordance with this Agreement;and (b) your use of the Service will not subject Notch to any liability or cause Notch to violate any law, rule, or regulation or guideline.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. EXCEPT AS EXPRESSLY SET FORTH IN THE IMMEDIATELY PRECEDING PARAGRAPH, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND NOTCH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE, AND YOU RELY ON THE SERVICE AT YOUR OWN RISK. ANY MATERIAL ACCESSED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NOTCH OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.

13. Limitation of Liability

NOTCH WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NOTCH HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR USE OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL NOTCH’S TOTAL LIABILITY OF ALLKINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO NOTCH FOR THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES,THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OFLIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY NOTCH TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAINBETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS AGREEMENT WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

14. Indemnity

You will indemnify and hold Notch and its subsidiaries, affiliates, officers, agents, and employees, harmless from any costs, damages, expenses, and liability caused by your use of the Service, your violation of this Agreement, or your violation of any rights of a third party through use of the Service.
Notch will, at its expense, defend or settle any third party claims alleging that your use of the Service in accordance with the terms of this Agreement violates the intellectual property rights of any third party and will pay any final judgments awarded or settlements entered into in connection therewith.

15. Force Majeure

Notch will not be liable to you for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond Notch’s reasonable control.

16. Assignability

You may not assign this Agreement or any right, duty, or obligation under this Agreement, without Notch’s prior written consent. If consent is given, this Agreement will bind your successors and assigns. Any attempt by you to transfer any right, duty, or obligation under this Agreement except as expressly provided in this Agreement is void. Notch may assign this Agreement or any right, duty, or obligation under this Agreement at any time without your consent.

17. Subcontractors

Notch may utilize one or more subcontractors or other third parties to perform its duties under this Agreement so long as Notch remains responsible for all of its obligations under this Agreement.

18. Notices

Except as otherwise expressly set forth in this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at Notch, and at the address set forth in the Subscriber account for Subscriber and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

19. Dispute Resolution

Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, must be finally settled by binding arbitration in New York, New York under the Rules of Arbitration of the American Arbitration Association by an arbitrator or arbitrators appointedin accordance with those rules. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

20. Waiver

The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

21. Severability

If any part of this Agreement is found by a court of competent jurisdiction to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Service will immediately terminate.

22. Entire Agreement

This Agreement (including the Order Summary and all Appendices) is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of Notch has any authority to bind Notch with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Notch will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Notch specifically agrees to such provision in writing and signed by an authorized agent of Notch.

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