END USER LICENSE AGREEMENT 02.09.2019
1. AGREEMENT BETWEEN YOU AND NOTABLE-EVOLUTION
1.2 In order to use the Service you must agree to these Terms. You may agree to the terms by clicking the “I Accept” box, or by actually using the Service or by signing a Statement of Work as defined in Section 4. You acknowledge and agree that Notable-Evolution will treat your use of the Service as acceptance of these Terms from the time you first use the Service.
2. USER ACCOUNTS
2.1 In order to use the Service, you must register with us to open a Notable-Evolution solution account (“Account”). By opening an Account, you represent and warrant that: (a) all information you submit in connection with your opening and use of your Account is true, accurate, current, and complete; (b) you will promptly notify us if your information changes so that we can update our records; and (d) your use of the Service does not violate any applicable law, rule or regulation. You are responsible for maintaining this information current.
2.2 You are solely responsible for maintaining the security and confidentiality of the information you hold for your Account, including, without limitation, your user name and password, and for any and all activity that occurs through your Account as a result of your failure to keep this information secure and confidential. You hereby agree to notify Notable-Evolution immediately if you become aware of any unauthorized use of your Account, user name or password, or any other breach of security in connection therewith. You may be held liable for losses incurred by Notable-Evolution or any third party due to someone else using your Account, user name or password as a result of your failing to keep your Account information secure and confidential. You are strictly prohibited from using anyone else’s Account, user name or password at any time and for any reason. Notable-Evolution is not liable to you or any third party for your failure to comply with your obligations under this paragraph.
2.3 Your Account may have one or more Notable-Evolution user accounts (User Accounts) linked as provided in the Statement of Work. You may be able to add or replace User Accounts in accordance with the guidelines and pricing provided in the Statement of Work.
3. YOUR PRIVACY
4.1 The fees, if any, that you are required to pay to use the Service, and the corresponding usage limitations (the “Quota”) that will be made available to you, are set forth in Notable-Evolution’s written or electronic (including via the Site) Statement of Work (the “Statement of Work”). Fees will be billed in advance in accordance with such Statement of Work. If you maintain a credit card on file with Notable-Evolution in your Account, it will be automatically charged for all such fees. If such Statement of Work specifies that Notable-Evolution will invoice you for applicable fees, you agree to pay all amounts set forth in such invoice within thirty (30) days of the invoice date. If you exceed the Quota applicable to the amount of fees you have paid, you will be charged any additional fees for the applicable billing period that reflect your actual Service usage during such billing period. Such additional fees will be charged retroactively following the applicable billing period. Fees are solely based on Notable-Evolution’s measurements of your use of the Service. You are responsible for maintaining up to date credit card information, if applicable, in your Account.
4.2 Unless otherwise agreed by Notable-Evolution and you, all fees are payable in U.S. Dollars. Late payments of fees may bear interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by applicable law, if less). Fees are exclusive of taxes or other charges. All fees are exclusive of, and you will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Services.
4.3 Notable-Evolution reserves the right to suspend or terminate your use of the Service (and access to your Content) if you fail to pay any fees due in connection with your use of the Service. Any outstanding fees are immediately due and payable upon termination of your use of the Service for any reason.
4.4 To the greatest extent permitted by applicable law, and without affecting your credit card issuer’s rights, you hereby waive all claims relating to fees unless you notify Notable-Evolution of any dispute or other fee-related claim within thirty (30) calendar days of the fees being charged to your credit card.
4.5 The Account and linked User Accounts shall be renewed on an annual basis automatically, unless terminated as per these Terms. Notable-Evolution may provide prior notice of renewal of said accounts of sixty days before renewal.
4.6 No refunds will be processed in the event of termination of Services without cause by you.
4.7 To the greatest extent permitted by applicable law, any refunds of fees are at the sole discretion of Notable-Evolution, and refunds will only be provided in the form of a credit against future fees for the Service. Nothing in these Terms obligates Notable-Evolution to extend credit to any person. You acknowledge and agree that any credit card and related billing and payment information that you provide to Notable-Evolution may be shared by Notable-Evolution with third party service providers who work on Notable-Evolution’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Notable-Evolution and servicing your Account. Notable-Evolution may also provide information in response to valid legal processes, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Notable-Evolution shall not be liable for any use or disclosure of such information by such third parties.
5. SERVICE AVAILABILITY & SUPPORT
5.1 Notable-Evolution may temporarily suspend your access to any portion or all of the Service and your Content (as defined below) if Notable-Evolution reasonably determines that: (a) there is a threat or attack on the Service (including a denial of service attack) or other event that may create a risk to the Service, you or any other Service user; (b) your use of the Service or your Content disrupts or poses a security risk to the Service or any other Service user, may harm Notable-Evolution’s systems or any other Service user, or may subject Notable-Evolution or any third party to liability; (c) you are using the Service for fraudulent or illegal activities; (d) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) you are using the Site, Service or other Notable-Evolution property in breach of these Terms; (f) you are in default of your payment obligations hereunder; or (g) there is an unusual spike or increase in your use of the Service (collectively, ”Service Suspensions”). Notable-Evolution will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to you (including notices posted on the Site or sent to your registered e-mail address) and to provide updates regarding resumption of the Service following any Service Suspension. Notable-Evolution will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.
5.2 Notable-Evolution will provide customer support to you as provided in the Statement of Work.
5.3 You shall also be eligible to make content updates on quarterly updates (the “Quarterly Updates”) as provided in the Statement of Work. Any further content updates beyond the Quarterly Updates shall be at the discretion of Notable-Evolution and will be charged additionally at a rate mutually agreed between the parties.
5.4 Notable-Evolution shall terminate your access to any portion or all of the Service and your Content upon termination of contract or non-renewal of Services.
6.1 Notable-Evolution will comply with all applicable privacy and data security laws and regulations governing its processing and storage of Customer Content. During the Subscription Term, Notable-Evolution shall maintain and conform to a security program in accordance with industry standards that is designed to secure the Customer Content and protect against unauthorized disclosure or access of Customer Content. Such security program shall include the implementation of appropriate administrative, technical and physical safeguards.
7. NOTABLE-EVOLUTION’S PROPRIETARY RIGHTS
7.1 You hereby acknowledge and agree that Notable-Evolution (or its licensors) own all legal right, title and interest in and to the Site and Service, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Service (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between you and Notable-Evolution, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Site and its content (except for your Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by Notable-Evolution or licensors.
7.2 Notable-Evolution shall fully own and retain all rights to anonymous usage data derived from your use of the Service (“Usage Data”) as aggregated with usage data from Notable-Evolution’s other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of Notable-Evolution’s services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify you.
7.3 Nothing in these Terms gives you any right to use any of Notable-Evolution’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. All rights not expressly granted by Notable-Evolution under these Terms are reserved.
7.4 Subject to your compliance with these Terms, including, without limitation, your payment of all applicable fees, Notable-Evolution hereby grants you a limited, personal, worldwide, royalty-free, non-transferable, sublicensable and non-exclusive license to use the Service for your internal business use, to store and manage your Content in such manner as permitted and/or specified by Notable-Evolution from time-to-time in any applicable documentation or Service descriptions made available by Notable-Evolution. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by Notable-Evolution, in the manner permitted by these Terms.
7.5 You may be allowed to sub-license the Services to third-parties with written permission from Notable-Evolution identifying the sub-licensee third-parties.
7.6 During, and after the termination of, your use of the Service, you will not assert, nor will you authorize or assist any third party to assert, against Notable-Evolution or any of Notable-Evolution Parties (as defined below), any patent infringement claim with respect to the Service.
8. SERVICE USE RESTRICTIONS
8.1 You hereby represent and warrant that you will not, and will not permit any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Service or otherwise attempt to gain unauthorized access to any portion or feature of the Site or Service, or any other systems or networks connected to the Site or Service, or to any Notable-Evolution server, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Service; (c) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Site or Service or any transaction being conducted on the Site or through the Service, or with any other person’s use of the Site or Service; (d) breach any security measures implemented on the Site or in the Service; (e) track or seek to trace any information on any other person who visits the Site or uses the Service; (f) forge headers or otherwise manipulate identifiers in order to disguise your identity, or the origin of any message or other communication that you send to Notable-Evolution in connection with the Service; (g) pretend that you are, or that you represent, someone else, or impersonate any other person; (h) use the Service in the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons; (i) use the Service or Site for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; (j) upload or otherwise process any malicious content to, or through, the Service; (k) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the any Notable-Evolution proprietary software used to provide, maintain, or otherwise applicable to, the Service, or made available to you in connection with the Service; or (l) provide Notable-Evolution access to or upload or send through the Services any of the following sensitive personal information: social security numbers; passport or visa numbers; driver’s license numbers; taxpayer or employee ID; financial account or payment card information; passwords; medical or health records or information reflecting an individual’s medical treatment or the payment or provisioning of such treatment. You hereby agree that you will notify Notable-Evolution if you become aware that the Site or Service is being used for any illegal or unauthorized purpose.
8.2 You hereby agree that you will notify Notable-Evolution if you become aware that the Site or Service is being used for any illegal or unauthorized purpose.
10. YOUR CONTENT & LICENSE FROM YOU
10.1 You hereby agree that you are solely responsible and liable for any and all information, data files, written text, computer software, music, audio files or other sounds, photographs, videos, images, and other content (collectively ”Content”) that you store, transmit, display, or otherwise use in connection with the Service, and for the consequences of your actions in connection with such Content and your use of the Service. You agree that Notable-Evolution has no responsibility to you or to any third party in connection with such Content. You are solely responsible for any losses or damage suffered by Notable-Evolution in connection with your Content. You hereby represent and warrant that you will not store or otherwise use any Content in connection with the Service that: (a) violates these Terms; (b) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (c) constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violate any law, rule or regulation; (d) violates any third party’s copyright, trademark, patent, trade secret, or other personal or proprietary right; (e) invades or interferes with the rights of privacy or publicity of any person; or (f) contains a virus, malicious code or any other harmful component.
10.2 Notable-Evolution reserves the right, at any time in its sole discretion and without notice to you, to pre-screen, review, monitor, flag, filter, modify, refuse or remove any or all Content from the Service, but Notable-Evolution has no obligation to do so. You agree to immediately take down, delete or modify any Content that is stored by you through the Service that violates these Terms or any applicable laws, rules, or regulations, including pursuant to a take down, deletion or modification request from Notable-Evolution. In the event that you elect not to comply with a request from Notable-Evolution to take down, delete or modify certain Content, Notable-Evolution reserves the right to directly take down, delete or modify such Content. Notable-Evolution assumes no liability or responsibility arising from your activities in connection with the Service, including, without limitation, Content that you store or otherwise use in connection with Service.
10.3 Notable-Evolution claims no ownership or control over your right, title and interest in your Content. You retain copyright and any other intellectual property and other proprietary rights you already hold in your Content, and you are solely responsible for protecting those rights, as you deem appropriate. By submitting, storing, displaying, or otherwise using your Content in connection with the Service, you hereby grant Notable-Evolution a worldwide, royalty-free, fully-paid-up, non-exclusive license to reproduce, perform, modify, display, distribute, and otherwise use such Content for the purpose of enabling Notable-Evolution to provide the Service to you, including, without limitation, storing and retrieving the Content, making the Content available through the Service, adapting the Content for technical display and transmission, conforming the Content to the limitation and terms of the Service, and any other use related to the maintenance, provision and improvement of the Service.
10.4 You hereby agree that Notable-Evolution, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your web site) for the purpose of advertising or publicizing the Service.
10.5 Notable-Evolution will not disclose any of your Content, except: (a) if you expressly authorize us to do so in connection with your use of the Service; (b) as necessary to provide the Service to you; or (c) to comply with the request of any governmental or regulatory body, subpoenas or court orders, or as otherwise required by applicable law, rule or regulation. If we receive a subpoena, court order, or other request from a governmental or regulatory body requesting the disclosure of any of your Content, we will use good faith efforts to provide you with reasonable notice to allow you to seek a protective order or other appropriate remedy (except to the extent Notable-Evolution’s compliance with the foregoing would cause it to violate a court order or other legal requirement). You are required to respond to third party requests about your Content, and we may provide your contact information to third parties, and suspend or terminate your access to the Service and your Content, if you fail to respond to such third party requests.
10.6 Notable-Evolution may use usage patterns, trends and other statistical data derived from your Content and use of the Service for purposes of providing, operating, maintaining, or improving the Service.
11.1 If you send or transmit any communications or materials to Notable-Evolution by mail, electronic mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to our Site or Service, including without limitation, new features or functionality relating thereto, any comments, questions, suggestions, or the like, all such Feedback are, and will be treated as, non-confidential and non-proprietary. This means that you give up any claim that the use of such Feedback by Notable-Evolution or its agents, violates any of your rights including moral rights, privacy rights, proprietary or other property rights, rights of publicity, rights to credit for material or ideas, or any other right, including the right to approve the way Notable-Evolution uses such Feedback.
11.2 You hereby assign all right, title, and interest in, and Notable-Evolution is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that Notable-Evolution is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
12. EXCLUSION OF WARRANTIES
12.1 YOUR USE OF THE SITE AND SERVICE IS ENTIRELY AT YOUR OWN DISCRETION AND RISK. THE SITE AND SERVICE ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. NOTABLE-EVOLUTION, ON BEHALF OF ITSELF, AND ON BEHALF OF ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND THIRD PARTY SERVICE PROVIDERS, AND NOTABLE-EVOLUTION’S AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS, (COLLECTIVELY, THE ”GOOD PARTIES”): (A) EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICE, OR DATA PROVIDED THROUGH THE SERVICE, WILL MEET YOUR REQUIREMENTS, OR THAT ITS OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICE.
12.2 THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND NOTABLE-EVOLUTION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NOTABLE-EVOLUTION OR ANY PERSON ON BEHALF OF NOTABLE-EVOLUTION SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
12.3 NOTHING IN THESE TERMS, THIS SECTION 12, OR SECTION 13 BELOW, SHALL EXCLUDE OR LIMIT NOTABLE-EVOLUTION’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
13. LIMITATION OF LIABILITY
13.1 SUBJECT TO SECTION 12.3 ABOVE, IN NO EVENT WILL NOTABLE-EVOLUTION OR NOTABLE-EVOLUTION PARTIES BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICE, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF NOTABLE-EVOLUTION OR NOTABLE-EVOLUTION PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 NOTABLE-EVOLUTION AND NOTABLE-EVOLUTION PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICE. IF, NOTWITHSTANDING THE FOREGOING, NOTABLE-EVOLUTION OR ONE OF NOTABLE-EVOLUTION PARTIES IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICE, NOTABLE-EVOLUTION OR THE RELEVANT NOTABLE-EVOLUTION PARTY’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO NOTABLE-EVOLUTION DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO NOTABLE-EVOLUTION’S LIABILITY.
14.1. You hereby agree to indemnify, defend and hold harmless Notable-Evolution and Notable-Evolution Parties (each an ”Indemnified Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Party(s) in connection with any actual or alleged claim arising out of: (a) your or your sub-licensee’s use of the Service; (b) any breach or alleged breach by you of these Terms; (c) any Feedback or Content provided by you; (d) any breach or alleged breach by you of a third party’s rights, including, without limitation, any intellectual property, privacy or publicity rights; (e) any damage caused by or alleged to have been caused by you to the Site or Service; or (f) any actual or alleged violation or non-compliance by you with any applicable law, rule or regulation, including, without limitation, the applicable spam laws.
14.2. Counsel you select for defense or settlement of a claim must be consented to by Notable-Evolution and/or the Indemnified Party(s) prior to counsel being engaged to represent you and Notable-Evolution and/or the Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Indemnified Party(s) in the defense or settlement of any claim. Notable-Evolution and/or the Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interest of Notable-Evolution or any Indemnified Party(s) without the prior written consent of Notable-Evolution and/or the Indemnified Party(s).
15. CHANGES TO SERVICE
15.1. Notable-Evolution is constantly striving to provide the best possible experience for its Service users. You acknowledge and agree that the form and nature of the Service which Notable-Evolution currently provides may change from time-to-time without prior notice to you, subject to the terms in Section 4.5. Changes to the form and nature of the Service will be effective with respect to all versions of the Service. Examples of changes to the form and nature of the Service include, without limitation, changes to fees and payment policies, security patches, additional functionality, reduced functionality, and other enhancements.
16. TERMINATION OF SERVICE
16.1 You may stop using the Service at any time by providing a notice in writing or by email of at least fourteen (14) business days. In such event, you will not be entitled to any refund of any fees that you have paid prior to you ceasing to use the Service as stated in Section 4.
16.2 Notable-Evolution reserves the right in its sole discretion to cease or suspend providing all or any part of the Service immediately without any notice to you, if: (a) you breach, or threaten or intend to breach, these Terms; (b) Notable-Evolution is required to do so under any applicable law, rule or regulation, including, without limitation, the applicable spam laws; (c) the Service relies on data, services or another business relationship between Notable-Evolution and a third party service provider, and such relationship terminates or changes in such a way that affects Notable-Evolution’s ability to continue providing the Service; (d) continuing to provide the Service could create a substantial economic burden on Notable-Evolution as determined by Notable-Evolution in its sole discretion; or (e) continuing to provide the Service could create a security risk or material technical burden as determined by Notable-Evolution in its sole discretion.
16.3 If your use of the Service is terminated or suspended pursuant to Sections 16.1 or 16.2 above, except to the extent prohibited by any applicable law, rule or regulation, you will immediately lose access to, and the ability to export, your Content. Without limiting the foregoing, the rights set forth in this Section 16.3 are subject to your payment of any outstanding fees due upon and after termination of your use of the Service.
16.4 Any of your obligations under these Terms which by their nature are intended to survive the termination of your use of the Service, shall continue to apply to you after you cease to use the Service.
16.5 Notable-Evolution may notify the relevant law enforcement authorities or other third parties, of any illegal or other prohibited conduct by you, including, without limitation, your violation of these Terms or unauthorized use of the Site or Service.
16.6 In the event Notable-Evolution decides to stop offering any or all Services, Notable-Evolution shall provide a notice in writing or email to you of not less than sixty (60) days.
17. GOVERNING LAW AND VENUE
17.1. These Terms will be construed and enforced in all respects in accordance with the laws of the state of Ontario, Canada without reference to its choice of law rules. Except as set forth below in Section 17.2, the courts seated in Ontario, Canada shall have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, these Terms and you hereby irrevocably waive any objection to such exclusive jurisdiction; provided however, that Notable-Evolution may seek to enforce any judgment in its favor in any court of competent jurisdiction.
17.2. Notwithstanding the foregoing, Notable-Evolution may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its proprietary and other rights. You agree that your breach of these Terms may result in immediate and irreparable damage to Notable-Evolution for which there is no adequate remedy at law.
17.3. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms, including, without limitation, application to the Site or Service. Furthermore, these Terms (including without limitation, the Site and Service) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
17.4. Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.
18. THIRD PARTY WEB SITES AND SERVERS
18.1. The Site and Service may provide links to other web sites and hosting servers that are not owned or operated by Notable-Evolution (“Third Party Web Sites”). Notable-Evolution provides these links to you as a convenience only, and Notable-Evolution does not verify, make any representations concerning, or take responsibility for, such Third Party Web Sites, or the products or services offered through such third party web sites, including, without limitation, the truthfulness, accuracy, quality, or completeness of the content of, or activities conducted on, such Third Party Web Sites. You should use your own independent judgment before accessing and using such Third Party Web Sites, or products or services offered through such third party web sites.
18.3. Any reference on the Site, or through the Service, to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise, does not constitute or imply Notable-Evolution’s endorsement or recommendation thereof, and your use of any Third Party Web Sites and third party product, process, publication, or service is entirely at your own risk.
19. MISCELLANEOUS LEGAL TERMS
19.2. The failure of Notable-Evolution to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
19.3. If any part of these Terms is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of these Terms, and the other parts will remain in full force and effect.
19.4. Any notice or other communications by Notable-Evolution relating to the Service may be made by letter, e-mail or posting on the Site, and you hereby consent to receive notices and other communications in electronic form to the extent permitted by applicable law.
19.5. These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Indemnified Party shall be a third-party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of these Terms that confers a right or remedy in favor of it.
19.6. Notable-Evolution may assign or transfer its rights, or delegate any performance, under these Terms to a third party in its sole discretion. You may not assign or otherwise transfer your rights, or delegate your performance, under these Terms to any third party without in each and every case, Notable-Evolution’s express prior written consent.
19.7. Notable-Evolution will not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of the common enemy, earthquake, fire, flood or other acts of God, the elements, epidemics, labor conditions, power failures, and Internet disturbances.
19.8. Notable-Evolution may take any legal action against you to enforce these Terms or to prevent the breach of these Terms, including, without limitation, seeking equitable remedies or using technical means at its disposal. In addition to any other legal, equitable or technical rights and remedies that it may have, Notable-Evolution may without limitation, immediately terminate or suspend your use of the Service and access to your Content, if Notable-Evolution believes in its sole discretion that you are violating these Terms, or that you intend to do so.
19.10. You may not access the Service if you are a direct competitor of Notable-Evolution’s, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.