NOODL END USER LICENSE AGREEMENT & TERMS OF SERVICE
v.1.1
Effective Date: 26 april 2022
Please review this End User License Agreement & Terms of Service (collectively “EULA” or the “Terms”) carefully, including the binding arbitration clause and class action waiver in section 12.2 below. Your acceptance of these Terms is required in order for you to access and use the Noodl Solution (as defined below). By registering or opening an account with us, by downloading or installing Noodl Software, by signing or click-accepting these Terms or an Order (as defined below), or by using the Noodl Solution in whole or in part, you are entering into a legally binding agreement with us (these Terms and the Order, the "Agreement"). If you do not agree to these Terms, you cannot use the Noodl Solution. We reserve the right at our discretion to propose modifications to these Terms periodically. We will notify you of such changes via an email sent to the email address we have on file for you or via other notification mechanisms. Your continued use of and access to the Noodl Solution after notice of such modifications indicates your acceptance of and agreement to the modified Terms.
“Access Information”: user name, password, and other log-in information for access to all or any part of the Noodl Solution.
“Content”: text, images, graphics, files, photos, video, applications, audio, and any other content, information or data, created, derived from or accessible via use of the Noodl Solution. The term "your Content" means Content you or your authorized users provide to, or Content originating or derived from your or your authorized users' use of, the Noodl Solution or your applications enabled by the Noodl Solution.
"Data Processing Addendum" or "DPA": the data processing addendum set forth at https://noodl.net/data-processing-addendum/.
"Evaluation Trial": provision of the Noodl Solution or any new service, feature or functionality (such as preview versions) on a trial basis and/or free of charge, including provision of the free account level of service.
“Noodl Service”: the online services provided by us in relation to and in support of the Noodl Software, including application hosting and provision of the functionality of the Noodl Software as a service, as such services may be updated or modified by us on one or more occasions.
“Noodl Software”: the software applications and tools, documentation, and application programming interfaces (if applicable), as may be made available to you, and as may be updated or modified by us on one or more occasions.
“Noodl Solution”: Noodl Service, Noodl Software, Support Services, and the features, functionality, data, applications, services and Content that we may make available to you via your use of the Noodl Software and Noodl Service.
"Order": the quotation or ordering document referencing these Terms, setting forth the applicable Noodl Solution subscriptions you have purchased, fees, subscription terms, and any other associated or supplementary terms. To the extent you have ordered the Noodl Solution through our self-service functionality within the ordering Noodl website, the “Order” will be deemed to be comprised of the selections made by you within such site.
“Privacy Policy”: our privacy policy available at http://noodl.net/privacy, as may be amended on one or more occasions.
“Support Services”: services we may agree to perform to enable the use, training, setup, integration, maintenance and/or support of the Noodl Solution, which may include a service level agreement (SLA), as well as support, consulting, professional or other services, as described in section 8.
“Third Party Applications”: online or offline software, products, services, functionality, hardware, networks and Content not developed or provided by us, including from the entities listed in section 6 below.
“Use License”: a single and company- or individual-specific limited license, as described in the Order, to access and use a single copy of the Noodl Software in accordance with this Agreement.
“We”, “us”, “our” or “Noodl”: Future Platforms AB, organized under the laws of Sweden.
“You”, “your” or "Customer" : the single entity or single individual purchasing a single Use License to the Noodl Software, excluding any affiliates, subsidiaries, consultants, contractors, or other related parties or entities, as set forth in the Order.
2.1 License Grant. Subject to your compliance with this Agreement and the Use License, we hereby grant to you a non-sublicensable, non-transferable, and non-exclusive license to:
2.1.1 install and use the Noodl Software, in accordance with the conditions of the Use License, on any supported computing device owned by you or in your exclusive control, for your internal or personal use in support of your business operations and not for the benefit of any third party except as may be specified in the Use License;
2.1.2 reproduce and distribute copies of the applicable components of the Noodl Software (that we designate as client libraries suitable for such use), solely as embedded in your application(s), and solely for the purpose of utilizing the Noodl Solution; and
2.1.3 incorporate into your applications our Content as we may deliver to you, including as part of Support Services, and reproduce, display, and distribute such Content solely as incorporated in your applications or your Content.
2.2 Updates. The Noodl Software may update automatically. Updates may be required for your continued use of the Noodl Solution. You agree to accept such updates subject to these Terms unless other terms accompany the updates. If so, those other terms will apply. We are not obligated to make any updates available except as we may separately agree in writing. We may cease providing Support Services for versions of the Noodl Software that are end-of-lifed by us in our sole discretion.
2.3 Unauthorized Use. Except as set forth above, you will not (a) copy the Noodl Software except as described in section 2.1 above; (b) sublicense, distribute to or share use of the Noodl Software or its functionality with any third party except as permitted by the Use License; or (c) modify, or create derivative works or improvements of, the Noodl Software. All rights not expressly granted in this section are reserved to us. You will have no right or license to the Noodl Software other than the rights set forth in section 2.1. You may exercise the rights granted in this section solely via your own employees.
2.4 Use License Restrictions. Use License restrictions may include (a) limiting the number of authorized users; (b) limiting the number of applications; (c) limiting the use to a single defined application and purpose; (d) defining eligibility for advantaged pricing and terms; (e) limiting or restricting project files; and (f) limiting use by third party clients. You represent and warrant that you have satisfied eligibility for advantaged terms (if applicable) and remain in compliance with eligibility conditions. You shall remain in compliance with Use License restrictions; breach results in immediate termination of the Use License.
2.5 Ownership. We and our licensors retain all right, title and interest in the Noodl Software and associated intellectual property rights, and all copies of the Noodl Software. The structure, sequence, organization, user experience, and code of the Noodl Software constitute our and our licensors' valuable trade secrets and copyrighted confidential information. You will preserve and not suppress our proprietary notices, markings, and branding associated with or displayed via the use of the Noodl Software.
2.6 Reverse Engineering. You will not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code, interfaces or other information from the Noodl Software, or work around technical protections or limitations associated with the Noodl Software, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with the Noodl Software; (c) such activity is confined to those parts of the Noodl Software which are necessary to achieve interoperability; and (d) we have not made such information available to you under reasonable terms and conditions upon your request and sent to legal@noodl.net. Any information supplied to or obtained by you under this section as a result of reverse engineering may only be used by you for the purpose described in this section, and will not be disclosed to any third party or used to create any software that is substantially similar to the Noodl Software.
2.7 Our Marks. You agree that any use of our marks, branding and logos (“Marks”), whether permitted or otherwise, will inure to the sole benefit of Noodl. You will not directly or indirectly: (a) file or prepare any application for registration of any Marks; (b) assert any right, title, license to, or interest in the Marks; or (c) adopt, use, file for registration, or register, in whole or in part, any trademark, service mark, trade name, logo, or domain name which may be confusingly similar to or an infringement of the Marks or any of our domain names. Except as set forth in Order, you hereby authorize us to disclose in our websites, marketing collateral, and corporate presentations that you have selected us and purchased the use of our solutions and services, using your logos and marks.
2.8 Open Source. Certain components or libraries included in or bundled with the Noodl Software may be covered by open source licenses. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of section 2.1, solely with respect to those libraries or components that are licensed under such open source licenses. You shall not (a) combine or link any part of the Noodl Software with publicly available source code, APIs, or documentation licensed under terms (including without limitation GPL, AGPL, LGPL, Mozilla, and Eclipse open source licenses) requiring, as a condition of use or distribution, that any separate software linked to, derived from, used or integrated with, such code, be made available in source code form, or without charge, or free of enforceable intellectual property rights; or (b) otherwise take any action that would make all or any part of the Noodl Solution subject to such open source license terms.
3.1 Availability. Although it is our intention for the Noodl Solution to be continuously available, you acknowledge there will be occasions when the Noodl Solution may be interrupted or incur delays, including without limitation due to scheduled maintenance or upgrades, for emergency reasons, suspension as required by law or governmental authority, in order to prevent harm to or infringements of the rights of others, or due to failure of platforms, networks, forces, links or equipment that are not under our control. You acknowledge that (a) your decision to use the Noodl Solution is not reliant or dependent on the availability of any current or future functionality, products, or features, or on any oral or written public or private comments or representations made by us; and (b) a subscription and access to the Noodl Service may be required in order to make use of the Noodl Software.
3.2 Eligibility. You may not use the Noodl Solution if you are barred from doing so under the laws of the United States, Sweden or other countries including the country in which you are resident or from which you use the Noodl Solution. If you are using the Noodl Solution on behalf of a company, you warrant that you have full power and authority to bind such company to the Agreement. The Noodl Solution is not directed at or intended for persons under 18 years of age. If you are under the age of majority in your jurisdiction (most commonly, 18 years of age), you represent that a parent or legal guardian has reviewed and agreed to these terms.
3.3 Consent to Privacy Policy; Emails. You agree and consent to the Privacy Policy and to receive email messages from us, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Noodl Solution, including notifications related to Support Services, administrative notices and service announcements or changes.
3.4 Reservation of Rights. We retain all right, title and interest in and to the Noodl Solution and our Content, and all associated intellectual property rights. We grant no licensed rights to our patents. The user interface, user experience, icons, presentation layer and elements, reports, templates, layouts, and screen displays of or generated by the Noodl Solution are our copyrightable content, our trade dress and our trademarks and servicemarks. You will not use, reproduce, distribute, or deploy the Noodl Solution, except for your own personal use or your own business operations, and solely in accordance with the Agreement.
4.1 Necessary Systems. Access to and ability to effectively use the Noodl Solution is conditioned on your procurement at your expense of all necessary system, hardware, software, operating environment, connectivity, and network access and licenses for Third Party Applications as may be required for the creation and distribution of your Content that you or any authorized user originates. You acknowledge that use of the Noodl Solution requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by Third Party Applications.
4.2 Evaluation Trial. Any Content, personalisations, integrations, adaptations, customizations or other materials generated during the Evaluation Trial will be permanently lost at the end of the Evaluation Trial unless you purchase a subscription to the applicable Noodl Solution. Except as the parties may otherwise agree in the Order, we are under no obligation to provide Support Services during or in support of the Evaluation Trial. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, THE EVALUATION TRIAL IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. You must cancel the Evaluation Trial by the end of the stated number of days in the Evaluation Trial offer to avoid incurring charges, unless we notify you otherwise. If you do not cancel at the end of the Evaluation Trial period, we may charge you for the subscription.
4.3 Feedback. You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, reviews, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to the Noodl Solution for our business purposes, including for product, services or solution sales, licensing, support and development, without any obligation or payment to you.
4.4 Information. You acknowledge and agree to the collection, storage, generation, processing and use by or for Noodl of anonymized or non-personally identifying data (including meta-data, testing, analytical, diagnostic and technical data, predictive analytics models, machine learning, and usage statistics) concerning or arising from use of, or generated by, the Noodl Solution, in whole or in part, including without limitation: (a) in order to provide the functionality of, improve, and maintain the Noodl Solution, (b) for processing transactions and payments, (c) for solution development, and (d) for verifying compliance. You hereby consent to the terms of the Privacy Policy and agree to the terms of the DPA. You represent and warrant that all information you submit to us in connection with the Noodl Solution, including account and billing information, is accurate, complete and truthful. You will promptly update any information provided by you that subsequently becomes inaccurate, incomplete, misleading or false.
4.5 Unauthorized Use. You will not use the Noodl Solution or participate in any activities via the Noodl Solution in a manner that is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction, including intellectual property rights. Your use of the Noodl Solution must be in full compliance with applicable law. You will not use, or enable or permit the use of the Noodl Solution to store or transmit infringing, libelous, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. You will not use or access the Noodl Solution: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
4.6 Notifications to You. For purposes of service messages and notices about the Noodl Solution to you, we may place a banner notice across site pages to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and these Terms through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services.
4.7 Notifications to Us. If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so. To be effective, notices to us must be sent to legal@noodl.net.
4.8 Security and Compliance. If we are required to adhere to instructions or requirements in respect of the processing of Content, or to adhere to changes in applicable law, and such compliance would prevent or limit our ability to provide the Noodl Solution as intended (in whole or in part) without, in our reasonable discretion, material or costly changes to its system or administration, we may terminate or restrict access to the Noodl Solution, in whole or in part, without any liability or obligation to you.
4.9 Subscription Term. Access to the Noodle Solution and Support Services commences on the date set forth in the Order and will continue in effect for the period(s) set forth in the Order. We will provide instructions on how to cancel the subscription. You must cancel the subscription before the renewal date to avoid being billed for the renewal. You are solely responsible for retrieval of your Content, data and feeds prior to termination of the subscription. After termination, your ability to retrieve such data may be subject to charges. You may terminate a subscription if we materially breach these Terms and such breach remains uncured thirty days after your written notice to us of our material breach.
5.1 Access Information. You are wholly responsible for maintaining the confidentiality of Access Information and wholly liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use access information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security via email sent to legal@noodl.net. We will not be liable for any loss or damage arising from lost or forgotten Access Information (including associated loss of Content), from failure to comply with this section or from unauthorized use of Access Information.
5.2 Responsibility for Content. Your Content is your sole responsibility. We will have no responsibility or liability for the deletion or failure to store any Content or user data. We reserve the right to mark as inactive and archive accounts that are inactive for an extended period of time. It is your sole responsibility to back up all Content and end user data. We may preserve and disclose Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of us, users and/or the public. We may terminate Noodl Solution access, and disable Noodl Software, in response to a violation or suspected violation of the Agreement.
5.3 Use of Content. You will bear all risks associated with the use of any Content, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content. We may refuse or delete any Content, including Content of which we become aware that fails to fulfill the purpose of the Noodl Solution, is in breach of these Terms, is otherwise contrary to law, or is otherwise inappropriate in our discretion. We do not guarantee the accuracy, integrity or quality of any Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. We will have no obligation or liability to maintain, store, or license Content, protect and maintain Content owners' intellectual property rights, or to enforce the Agreement. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of Content or your inability to effectively use Content, your failure to comply with the Agreement, or for any act, omission, or conduct of any Noodl Solution user.
5.4 Account Data. While we will endeavor to back up data, we have no responsibility or liability for the deletion or failure to store any Content. You acknowledge and agree that your Content will not be retrievable or accessible except via your authorized use of the Noodl Solution, and that we are under no obligation to compile and return to you your Content, including if you elect to deactivate your account, except as we may otherwise agree in writing.
5.5 License to Content. You hereby grant to us the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, transferable, non-exclusive right and license to use, reproduce, process, modify, create derivative works of, perform, display and distribute your Content solely for purposes of developing, displaying, maintaining, and providing the Noodl Solution, including via your applications. As between the parties, you retain all right, title and interest in and to your Content and all associated intellectual property rights, subject to this section. Your Content is your sole responsibility. Under no circumstances will we be liable in any way for any your Content. We may preserve and disclose any Content if required to do so by law or judicial or governmental mandate. You represent and warrant that you have sufficient authority, and all necessary rights and licenses, to enter into this Agreement and to provide and license your Content to us as set forth in this section.
5.6 Propriety of Content. You shall not, and shall ensure that none of your authorized users, transmits Content or otherwise conduct or participate in any activities on or via the Noodl Solution which is likely to be prohibited by law, or is violative or in breach of third party rights in any applicable jurisdiction, including without limitation laws governing libel and defamation, encryption of software, the export of technology, the transmission of obscenity or the permissible uses of intellectual property. You shall not and shall ensure that authorized users do not upload, download, display, perform, transmit, or otherwise distribute any Content, or otherwise engage in any activity in connection with the Noodl Solution, that (a) is hateful, offensive, racist, bigoted, libelous, defamatory, obscene, abusive, pornographic, lewd, erroneous, stalking, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate applicable law; (c) constitutes infringement of the intellectual property or other rights of any party, including rights to the use of name and likeness, or violation of a right of privacy; (d) creates an impression that is incorrect, misleading, or deceptive, including without limitation by impersonating others or by otherwise misrepresenting identity or affiliation with a person or entity; or (e) divulges other people's private or personally identifiable information without their express authorization and permission. We may remove any Content that is in violation of these Terms. Your use of the Noodl Solution shall be in full compliance with applicable law.
5.7 Data Protection. You will take all necessary and reasonable steps to ensure that you have full legal right and authority to disclose and process all personal and personally identifying data, and that the processing of such data will not violate any applicable data protection or data privacy laws. You acknowledge that we are a data processor to the extent we process personal data on your behalf as part of the Noodl Solution, and that you are the data controller in such context. The parties hereby agree to the terms of the DPA.
Access to Third Party Applications within the Noodl Solution will not be construed as an endorsement, sponsorship or affiliation. Use of Third Party Applications may require your agreement to separate written terms and conditions. Under no circumstances will we be liable in any way for Third Party Applications, including, but not limited to, liability for any errors or omissions in any Third Party Applications, or for any loss or damage of any kind incurred as a result of the use of the Third Party Applications. You hereby waive and release any claims you may have against us arising or resulting from use, misuse, alteration or loss of the Third Party Applications. If the providers of Third Party Applications cease to make such Third Party Applications available for interoperation with the Noodl Solution or corresponding features of the Noodl Solution and on reasonable terms or otherwise, we may cease providing such some or all features of the Noodl Solution, without entitling you to any refund, credit or other compensation. Third Party Applications include the offerings listed here, and their applicable use/service terms, to which you hereby agree to be bound.
Fees owed to us are non-refundable and are exclusive of taxes. By providing us a billing account, you represent and warrant that you: (a) are authorized to use the billing account that you provided and that any payment information you provide is true and accurate; and (b) authorize us to charge you using your billing account. You agree to provide current, complete and accurate purchase and account information for all purchases made. You agree to promptly update your account and other information so that transactions can be completed and we can contact you as needed. You will bear and be responsible for the payment of all credit card or payment processor fees, and for any taxes, including all sales, use, value-added, import duties, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with the Agreement or provision of the Noodl Solution (excluding only taxes based on our net income). If we are required to pay or collect any such taxes or other charges for which you are responsible, you will pay the appropriate amount as invoiced. If you are delinquent in the payment of any invoice, we may at our option, suspend access to the Noodl Solution until such payments are made in full. Payments to us must be made without deduction, counterclaim or set-off of any kind. Except as otherwise set forth in the Order, payments are due within 30 days of our invoice. Any payments that are not timely paid as provided hereunder will, at our option, bear compound interest at one percent per month. We may invoice you at the same time for more than one prior billing period for amounts that have not previously been processed. You will not adopt multiple accounts to simulate or act as a single account, or otherwise access or use the Noodl Solution in a manner intended to avoid incurring fees.
Subject to your compliance with the Agreement, we may, in our sole discretion, provide the following Support Services:
9.1 Prohibited Acts. You are prohibited from breaching or attempting to breach any security features of the Noodl Solution and from taking any action that would otherwise adversely impact the availability, reliability, security, or stability of the Noodl Solution. Such prohibitions include, without limitation: (a) accessing content or materials not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Noodl Solution; (c) testing the Noodl Solution in order to find limitations, vulnerabilities or evade filtering capabilities; (d) accessing or tampering with non-public areas of the Noodl Solution, Noodl computer systems, or the technical delivery systems of Noodl or Noodl’s providers; (e) accessing or attempting to access the Noodl Solution by any means (automated or otherwise) other than through the currently available, published and enabled interfaces provided by us; or (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Noodl Solution, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Noodl). You acknowledge that we have sole discretion over the maintenance, development, and disposition of the Noodl Solution.
9.2 Illicit Access. You will not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Noodl Solution, which is for your personal/internal and individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium the Noodl Solution, except through and as otherwise authorized by us, and you will not engage in framing, mirroring, or otherwise reproducing or simulating the appearance or function of the Noodl Solution. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of the Noodl Solution.
10.1 Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, we provide the Noodl Solution on an as-is, as-available basis with all faults, and WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE NOODL SOLUTION, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the Noodl Solution will meet your requirements, goals or needs, (b) Noodl Solution access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the Noodl Solution will be corrected. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability and security of hosting services, internet intermediaries, your internet service provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of the Noodl Solution.
10.2 Indemnity.
10.2.1 Noodl Indemnity. For as long as a subscription term under this Agreement is in effect, Noodl will defend you at its expense, from and against any third party demand, claim, action, suit or legal proceeding alleging that our provision of the Noodl Solution (excluding Content and Third Party Applications) infringes a third party intellectual property right. We will indemnify and hold you harmless against all costs, damages, losses, liabilities, and expenses (including, without limitation, costs and reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, or such settlement amount negotiated by us, attributable to such claim. This section will not apply to (a) patent infringement claims arising from (i) combinations of the Noodl Solution with products, services, hardware or software provided by a party other than Service Provider; or (ii) compliance with industry, technical or commercial standards or consortia such as HTML, the ISO, the W3C, or any other industry standard or practice; or (b) any use, distribution, or display of the Noodl Solution in breach of this Agreement; or (c) claims arising from compliance you’re your requirements; or (d) any claim in which you or your affiliate has an interest. This section sets forth your sole remedy and our sole obligation with respect to any claim of intellectual property rights infringement.
10.2.2 Your Indemnity. You hereby agree to fully indemnify, defend and hold harmless Noodl, its affiliates, and officers, directors, employees and agents of Noodl and its affiliates, from and against any and all claims, losses, damages, judgments, awards, costs, liabilities, expenses, sanctions, and fees (including reasonable in-house and external lawyers fees and costs) directly or indirectly caused by or incurred by reason of (a) a claim brought by your users, or (b) breach or alleged breach of this Agreement, or (c) any other third party allegation, lawsuit, claim or proceeding, arising out of or related to: (i) your Content; or (ii) any conduct or activity of you or your users. We may assume the exclusive defense and control of any matter for which you are required to indemnify us under this section, at your expense. Your will cooperate with our defense and settlement of such claims.
10.3 Exclusion. Notwithstanding section 10.2 and any other provision of the Agreement, our and our affiliates' maximum cumulative aggregate liability for all claims, liabilities or obligations arising under or relating to the “Subject Matter” (defined as this Agreement and its performance or non-performance, the Privacy Policy, the DPA, Third Party Applications, and the Noodl Solution), regardless of the number of claims or the theory of liability, whether for breach of the Agreement, including breach of warranty, or in tort or otherwise, will not exceed all amounts paid by you for Use Licenses, if any, during the three-month period preceding the occurrence of the claim or event giving rise to liability. We and our affiliates will not be liable for any indirect, punitive, special, incidental or consequential damages, or liable for interruption of business, diminution of value, cost of replacement or cover, downtime, loss of profits, revenue, use, data, Third Party Applications, or other economic advantage, in connection with, related to or arising out of the Subject Matter, regardless of the theory of liability, whether for breach of the Agreement, including breach of warranty, or in tort or otherwise, even if we have been previously advised of the possibility of such damages. Liability for damages will be so limited and excluded, regardless of the validity or efficacy of any remedy provided herein and even if any remedy fails of its essential purpose. The provisions of this section allocate the risks under the Agreement between the parties and each party has relied upon the limitations set forth herein in determining whether to enter into this relationship. The parties have voluntarily agreed to define the parties’ rights, liabilities and obligations respecting the Subject Matter exclusively in contract pursuant to these Terms, and each party expressly disclaims that such party is owed any duties or are entitled to any remedies not expressly set forth in these Terms. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
Rights to the Noodl Software and access to the Noodl Service will terminate immediately upon your breach of this Agreement. We may additionally terminate rights and access if your manner of using the Noodl Solution exceeds normal and reasonable usage, including via unauthorized automated (non-human) initiated requests, or otherwise, and such excessive or detrimental use has not been corrected by you promptly. We may on written notice terminate rights granted under the Agreement in the event the Noodl Solution in whole or in part is in our reasonable judgment subject to the intellectual property or privacy rights of any other person or entity or in the event we cease business operations. The rights of ours under this section are in addition to any other rights and remedies permitted by law or under these Terms. Breach of this Agreement may result in pursuit of all available remedies for intellectual property rights (including intellectual property rights infringement), the availability of which you hereby acknowledge. We may terminate your Use License for cause, including without limitation for: (a) violation of the Agreement; (b) abuse of Noodl resources or any attempt to gain unauthorized entry to the Noodl Solution; (c) use of the Noodl Solution in a manner inconsistent with its purpose; or (d) requirements of or for failure to comply with applicable law, regulation, court or governing agency order. Upon termination of rights or access for any reason, all licensed rights granted under the Agreement, access to the Noodl Service, and all Support Services will terminate, and you will immediately cease all use, and destroy all copies, of the Noodl Software.
12.1 Governing Law; Choice of Forum. The Subject Matter (as defined in section 10.3), and any disputes between us and related to or concerning any of the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual), notwithstanding the choice of laws rules of any jurisdiction to the contrary, will be governed by the procedural and substantive laws of New York, USA, if you are headquartered or domiciled in North America, or the laws of Sweden, if you are headquartered or domiciled anywhere else. The United Nations Convention on Contracts for the International Sale of Goods will not apply and is hereby excluded.
12.2 Arbitration. Any disputes between or claims brought by either party arising out of or related to the Subject Matter (as defined in section 10.3), including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes must be referred to and finally settled by binding arbitration. If you are headquartered or domiciled in North America, arbitration will be conducted by JAMS (jamsadr.com) in accordance with the Comprehensive (Expedited) Rules of Arbitration in effect at the time of arbitration except as inconsistent with this section, and the venue for the arbitration will be New York City, New York. If you are headquartered or domiciled anywhere else, arbitration will be conducted before the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”), and the venue for arbitration will be Malmö, Sweden. The Rules for Expedited Arbitrations will apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules will apply. In the latter case, the SCC will also decide whether the Arbitral Tribunal will be composed of one or three arbitrators. The venue for the arbitration will be Malmö, Sweden. The arbitration will be conducted remotely and/or based solely upon submissions where no in-person appearance is required. The arbitrator will apply the law specified in section 12.1 above. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, must be kept confidential. Except as required by law, no party will make any public announcements with respect to the proceeding or the award, except as required to enforce same. The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions. All claims between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion.
12.3 Limitation. You agree that regardless of any statute of limitations to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period established by applicable law.
12.4 Assignment. This Agreement will not be assigned without our prior written consent. Any such purported assignment without such written consent will be void. We may at any time assign this Agreement without prior consent or notice. This Agreement will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns. We may subcontract provision of the Noodl Solution, including to our affiliate or other subcontractor/subprocessor.
12.5 Injunctive Relief; Prevailing Party. You acknowledge and agree that breach of this Agreement, or any unauthorized use, disclosure or distribution of the Noodl Solution, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto (and such proceeding, and our right to prosecute such a claim, is not subject to arbitration). A party prevailing in any litigation or arbitration related to this Agreement or the Subject Matter will be entitled, in addition to such other relief as may be granted, to an award of reasonable attorneys' fees.
12.6 Miscellaneous. The Agreement constitutes the entire agreement between you and us and governs your use of the Noodl Solution, superseding any prior agreements, understandings, communications or proposals. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement will remain in full force and effect. No waiver of any provision of this Agreement will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision. In the event of any conflict or inconsistency between this Agreement and any Noodl website page (including any page describing or summarizing the Noodl Solution, your or our rights, obligations, and/or these Terms), the Agreement will control. Nothing herein will be deemed to create an agency, partnership, joint venture, or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party. The parties have expressly required that the present Agreement and any other contract, document or notice relating thereto be drafted in the English language.
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