TERMS AND CONDITIONS OF USE

Last Modified: November 29th, 2021

1. Your Acceptance

Thank you for choosing to use Noviqu’s online application suite (Service), which includes the Ensight and Material Tracker application.

This agreement (Agreement) is between Noviqu (Noviqu, “us,” “we,” or “our”) and the person or entity agreeing to these terms (you). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “you” means your company, and you are binding your company to this Agreement.

By using or accessing the Service or clicking on the “I agree” button that is presented to you at the time of submitting your Order (refer to Section 7 (Account Registration), you agree to these terms and conditions of use (Terms).

If you do not agree with these Terms, do not click the “I agree” button and stop using and uninstall the Service immediately.

By using or accessing our Service, you agree to the terms below; if you don’t agree, don’t use the Service.

2. Scope

These Terms govern your use of the Services as well as any technology you download from us that references these Terms. These Terms include the Privacy Policy, Site Terms and Conditions, any Orders and any other references to Noviqu policies and attachments posted at Noviqu.com from time to time as though those policies were included in these Terms. If any of the provisions of any applicable Noviqu policy conflict with these Terms, these Terms have priority, solely to the extent such Terms apply to the Service.

If you also use any of our other services, the separate terms and conditions that apply to those services will apply to you in addition to these Terms which will continue to apply to your use of the Service.

By accepting these terms, you also agree to the Privacy Policy and our website terms and conditions.

3. No Charge Services

We may offer certain Services to you at no charge, including free accounts, trial use, and access to pre-release and beta products (No-Charge Services). Your use of No-Charge Services is subject to any additional terms that we specify and is only permitted for the period designated by us. We may terminate your right to use No-Charge Services at any time and for any reason in our sole discretion, without liability to you. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Services, including any support and maintenance, warranty, and indemnity obligations.

4. Subscription Service

Subject to these Terms, Noviqu shall make the Service available to users nominated by you (End Users) on a compatible computer, mobile telephone or handheld device (Device) owned or controlled by you or our End Users, solely for your internal business operations. All End Users must establish a named account on the Noviqu Platform (End User Account). You may request an End User Account by: (i) notifying us in writing; or (ii) ordering End User Accounts via the Site.

The Terms of this Agreement shall also apply to any updates and upgrades subsequently provided by Noviqu to you for the Service. Noviqu shall host the Service and may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to the Service from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Service and customers’ use of the Service.

Unless permitted by law or as otherwise expressly permitted in these Terms, you must not (nor may you authorise any third person to): (i) rent, lease, distribute, license, sublicense, sell, transfer, assign, distribute or otherwise provide access to the Service to a third party; (iii) reproduce, modify, adapt, create derivative works of, the Service; (iv) reverse engineer, disassemble, decompile, transfer, exchange or translate the Service or otherwise seek to obtain or derive the source code or API; (iv) remove or tamper with any disclaimers or other legal notices; (v) combine the whole or any part of the Service with any other software, data or material; (vi) store or use any part of the data you do not own in an archival database or other searchable database. You must promptly notify us in writing of any breach of these conditions of use.

We give you a licence to use the Service but please do not use the Service in violation of these terms.

5. Intellectual Property Rights

You agree that all intellectual property of any sort in or associated with the Service, including all code, libraries, programs, software, documentation, content, databases, systems, logos and trademarks are owned either directly by us or by our licensors. You are not authorised to use any of our intellectual property except as is expressly allowed under these Terms.

Subject to these Terms you may modify a template, training course or incident workflow in the Service for the purposes of developing customizations and additional features of a template, training course or incident workflow. . Any such modifications constitute “Your Modifications”. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Service but you may not distribute Your Modifications to any third party. Notwithstanding anything in these Terms to the contrary, Noviqu has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Services. You must indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Service) or your breach of this Section. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of Noviqu at your expense.

We may use your company name(s) and logo(s) on our Site, in case studies and other promotional materials.

We own all intellectual property rights in the Service. You can make modifications to a template, training course or incident workflow in the Service but we’re not promising anything related to support or maintenance for your modifications. You protect us against any third party claims arising from any modifications you make.

6. Data Protection

This Section shall only apply if and to the extent that the EU General Data Protection Regulation 2016/679 ("GDPR") applies to any of the data with which you use the Service and/or No Charge Services. If this Section applies, the provisions of Appendix 1 (Data Protection Compliance) and Appendix 2 (Data Processing Agreement) shall apply.

7. Account Registration

You may need to register for an account in order to access or receive any Services. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.

To activate the Service you must either:

  • a) complete the online order page (Online Order) located on the Site which contains details of:
    1. the Services being ordered;
    2. the applicable fees (Fees);
    3. number of paid End User Accounts that will form part of your organisation (Seats);
    4. the term of the Agreement (Term);
    5. the applicable form of payment;
    6. and your domain names; or
  • b) execute a quote or order form (Quote/Order Form) provided by Noviqu which specifies: the Services, the Seats, the Term and the Fees, all of which are subject to this Agreement.

Unless the parties agree otherwise in writing, any new Seats purchased during any Term will have a prorated term ending on the last day of that Term.

When you create an account, you have to provide us with accurate information. You are responsible for any activity that occurs on your account.

To start the Service you will need to complete the online order page located on the Site which contains all the details of the Services being ordered; fees, end users, the term of the Agreement, how you wish to pay for the Service and your domain names.

Alternatively you will need to complete a quote or order form provided to you by Noviqu.

8. Term and Renewal

Services are provided on a subscription basis for a set Term as specified in your Order. Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Term (and you will be charged at the then-current rates) unless you cancel your subscription in writing or through your account at the Site. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

If Noviqu does not want the Services to renew, then it will provide you written notice to this effect. This notice of non renewal will be effective upon the conclusion of the then current Term.

Your agreement will automatically renew for periods equal to your initial term (at the then-current rates) unless you notify us in writing that you wish to cancel your subscription in writing prior to the end of then-current billing cycle. You will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

9. Billing and Payment

You agree to pay all Fees in accordance with your Online Order or Quote/Order Form. Unless otherwise specified in your Online Order or Quote/Order Form, you will pay all amounts in the offered currency (as updated from time to time) at the time you place your Online Order or Quote/Order Form. All amounts are non-refundable, non-cancellable and non-creditable.

In making payments, you acknowledge that you are not relying on future availability of the Service beyond the current agreed Term or any Service upgrades or feature enhancements. If you add End Users during your Term, we will charge you for the increased number of End Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional End Users, and unpaid fees, as applicable.

You must elect one of the following billing options when registering and placing an order for the Service:

  • Monthly Plan. If you select this option, you will pay for the Services on a monthly basis. We will bill you: (i) Fees based upon the number of End User Accounts you are using. We will provide you with the monthly rate for the Services when you order the Service, and will use this rate to calculate the Fees, for your monthly charges.
  • Annual Plan. If you select this option, you will pay for the Services on an annual basis. We will bill you: (i) Fees based upon the number of End User Accounts you are using. We will provide you with the annual rate for the Services when you order the Service, and will use this rate to calculate the Fees, for your annual charges.

Fees for Orders where you are paying with a credit card, debit card or other non-invoice form of payment are due the month prior to which you received the Services. For credit cards, or debit cards, as applicable: (i) we will charge you for all applicable Fees when due and (ii) these Fees are considered overdue after the end of the month during which you received the Services.

Where we issue an invoice for payment rather than direct debit, payment shall be due fourteen days after the invoice data, and shall be considered overdue after such date.

We may enable other forms of payment by making them available on the Site. These other forms of payment may be subject to additional terms which you may have to accept prior using the additional forms of payment.

Overdue payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including legal or collection fees) incurred by us in collecting such delinquent amounts, except where such overdue amounts are due to our billing inaccuracies.

You will have thirty days to pay overdue Fees. If you do not pay overdue Fees within thirty days, we will automatically suspend you use of the Service. The duration of this suspension will be until you pay all outstanding Fees.

If you have a monthly billing plan or an annual billing plan commitment, we will continue to charge you Fees during suspension for non-payment and you must pay all outstanding Fees in order to resume use of the Services.

If you remain suspended for non-payment for more than sixty days, we may terminate this Agreement.

You are responsible for any duties, customs fees, or taxes (other than our income tax) associated with the sale of the Services, including any related penalties or interest (Taxes), and you will pay us for the Services without any reduction for Taxes. If we are obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. If you are required by law to withhold any Taxes from payments to us, you must provide us with an official tax receipt or other appropriate documentation to support such payments.

You acknowledge that the terms of agreement with your respective telecommunications network provider (Network Provider) will continue to apply when using the Service. As a result, you may be charged by the Network Provider for access to network connection services for the duration of the connection while accessing the Service or any such third party charges as they may arise. You accept responsibility for any such charges that arise.

You agree to pay fees to us for the services as set out on your order form. The fees are non-refundable.

You must elect to pay your fees by a monthly or annual plan and any overdue fees may result in you being charged interest or your account being suspended or terminated.

Your network provider may also separately charge you for access to their network while accessing the Service. You accept responsibility for any such charges that arise.

10. Your Obligations

You must use the Services in accordance with the Privacy Policy and Site Terms and Conditions and any other Noviqu policies posted on the Site.

You may specify one or more administrators who will have password protected rights to access administrative account(s) for the purposes of administering the Services (Admin Account(s)) and to administer all End Users permitted to use the Service and who have established an End User Account. You are responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with these Terms. You agree that our responsibilities do not extend to the internal management or administration of the Services for you and that we are merely a software provider.

Your administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. You will obtain and maintain all required consents from End Users to allow: (i) your access, monitoring, use and disclosure of this data and Noviqu providing you with the ability to do so and (ii) Noviqu to provide the Services.

You are responsible for responding to a request from a third party for records relating to an End User's use of the Services (Third Party Requests). Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure. We will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify you of the receipt of a Third Party Request; (b) comply with your reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide you with the information or tools required for you to respond to the Third Party Request. You will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact us only if you cannot reasonably obtain such information.

You are responsible for any activity that occurs on your account, so you may specify one or more administrators to have special password protected rights to access administrative account(s) for the purposes of administering the services. Make sure your administrators maintain all required consents from end users to allow you to access and monitor data and enable us to provide the service to you.

You are responsible for responding to a request from a third party for records relating to your use of the services. We will help if we can if you cannot reasonably obtain such information yourself.

11. Service Level Agreement (SLA)

If you are registered on a monthly billing plan or an annual billing plan and/or are paying Fees for the Service, the Service will be operational and available to you at least 99.9% of the time in any calendar month (Noviqu SLA). If we do not meet the Noviqu SLA, and if you meet your obligations under this Noviqu SLA, you will be eligible to receive the service credits described below. This Noviqu SLA states your sole and exclusive remedy for any failure by us to meet the Noviqu SLA.

Monthly Uptime Percentage Days of Service added to the end of Service Term
< 99.9% to >= 99.0% 1
< 99.0% to >= 95.0$ 3
< 95% 7

In order to receive any of the Service Credits described above, you must notify us within thirty days from the time you become eligible to receive a Service Credit. Failure to comply with this requirement will forfeit your right to receive a Service Credit.

The aggregate maximum number of Service Credits to be issued by us to you for all downtime that occurs in a single calendar month shall not exceed fifteen days of Service added to the end of your Term for the Service (or the value of fifteen days of Service in the form of a monetary credit to a monthly-billing account). Service Credits may not be exchanged for, or converted to, monetary amounts, except for customers who are on a monthly or annual billing plan.

The Noviqu SLA does not apply to any Services that expressly exclude this Noviqu SLA (as stated in the documentation for such Services) or any performance issues: (i) caused by “force majeure” factors described in the "General" section of these Terms; or (ii) that resulted from your equipment or third party equipment, or both (not within the primary control of Noviqu ); or (iii) caused by network connections; or (iv) caused by factors outside our reasonable control.

If you are paying fees for the service we will use best efforts to ensure that the service will be operational and available to you. If not you may be eligible to receive the service credits described in this section.

12. Security

By using the Service, you acknowledge that it is your sole responsibility to ensure the confidentiality and security of any information transmitted from or stored on a Device for the purposes of the Service, for all transactions and other activities in the End User’s name, whether authorized or unauthorized. You understand that use of the Service involves transmission of your data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.

We care about the integrity and security of your information, however, we cannot guarantee that our security procedures will be error-free or that unauthorized third parties will never be able to defeat our security measures. You acknowledge that you use the service at your own risk.

13. Sharing Content

When you use the Service, any data, templates, information, content, code, video, images or other materials of any type (Materials) you enter remains confidential to you unless you choose to share any Materials with Noviqu and/or other users.

When you choose to publicly share content, including Materials that you upload, submit or otherwise transmit to or through Service or the Site, or with us, including in the Noviqu Public Library:

  • you warrant that the Materials have not been misappropriated from or breach the intellectual property rights of any other person and that you have the rights to use and provide the Materials and to grant the licenses contained in this Section;
  • you grant to Noviqu and/or other users of our technologies a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable, license to use, publish, exercise the copyright and other intellectual property rights you have in the Materials You agree that this license includes the right for us to provide, promote, and improve the Service and to make Materials submitted to or through the Service or the Site available to other companies, organizations or individuals who use the Service, with no compensation paid to you;
  • you agree to allow us to store or re-format the Materials and display the Materials on the Site and in other materials in any way as we choose. We will only use personal information in accordance with our Privacy Policy;
  • you are responsible for ensuring that the Materials and their use, meaning, effect and placement is not:
    • unlawful, obscene, harmful, of bad taste, inappropriate and otherwise comply with the Privacy Policy;
    • false, misleading or inaccurate, or otherwise in contravention of the Competition and Consumer Act (Cth) 2010;
    • in breach of any applicable law;
    • confidential or infringes upon any third-party's intellectual property rights;
    • defamatory or offensive;
    • in breach of these Terms; or
    • infected with viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of the Service; and
  • you indemnify Noviqu and/or other users against any and all legal fees, damages and other expenses that may be incurred by us and/or other users as a result of a breach by you of the above Terms. Without limiting any other remedies available, Noviqu has the unfettered right to remove, delete or modify any Materials that it considers to be inappropriate, at its absolute discretion, without consultation with you.

We welcome you to upload content to us, but we don’t allow anything that is offensive, obscene, or could constitute or contribute to a criminal or civil offense, including copyright and other intellectual property right violations.

If you choose to publicly share content you grant to us and/or other users a licence to use that content. You promise that you have all necessary permissions and rights to submit the content you provide to us, and that your content won’t infringe anyone’s rights or violate any laws. You promise that your information is truthful. We’re not responsible for your content in any way.

You indemnify us and/or other users against any and all claims that may be incurred by us and/or other users as a result of a breach by you of the these terms.

If we think you’re violating this Agreement, we have the right to remove, delete or modify any materials that we consider to be inappropriate.

14. Downloading Materials

When downloading Materials, you are doing so at your own risk and understand that you are downloading content that has been developed by a third party, has not been validated in any way and is not specific to your requirements and should be not be relied upon in any way. It is your responsibility to modify any Materials to suit your own specific requirements. Professional advice from a qualified person should be obtained in order to make the Materials specific for your intended use.

When you download material from our site you do so at your own risk.

15. Privacy Policy

Any information you supply to us when using the Service will be collected and used by us in accordance with our Privacy Policy (on the Site). We will present our Privacy Policy to you and to others who may download Materials. To the extent that we are presenting the Privacy Policy in accordance with the EU General Data Protection Regulation 2016/679 ("GDPR"), we will do so as set out in Appendix 1 (Data Protection Compliance).

Your privacy is important to us and we only use your information in accordance with our Privacy Policy.

16. Disclaimer, Limitation on Liability and Indemnity

Except as expressly stated in this Agreement, we do not make any representation or warranty (express or implied) in respect of the Services, any Materials or any other goods or services provided by Noviqu to you, including, without limitation, any implied warranty: (i) of merchantability; (ii) of fitness for a particular purpose; (iii) arising from a course of performance, course of dealing, or usage of trade; (iv) of non-infringement of third party rights; or (v) against hidden defects. The Service any Materials are provided on an “as is”, “with all faults” and “as available” basis and without any further warranties of any kind. We make no warranty that operation of the Service or any Materials will be uninterrupted or error free or that all defects will be corrected.

Without limiting the above, you acknowledge that:

  • you are using the Service at your own risk;
  • the Service is not a substitute for professional advice;
  • you are solely responsible for the use of the Service and agree that any safety audits, training courses or incidents conducted using the Service are only part of establishing a safe system of work, which would typically require you to undertake additional and comprehensive gap analysis and risk assessments along with specific safe work method statements and safety training; and
  • you have not relied on any representation in ordering the Service or any goods and services from us.

To the maximum extent permitted by law, we exclude completely all liability whatsoever for any claims, liability, loss or damage of any kind however caused (including negligence) arising out of or in connection with any goods or services provided by us including the Service and its access, use or performance, including, without limitation, we are not liable for: (a) misuse of the Service or any Materials; (b) use of the Service or any Materials with third party data, software or hardware which is incompatible with the Service and/or not recommended by us; (c) reduced performance or non-availability of the Service or any Materials as a result of network connections; or (d) errors in the Service or any Materials resulting from your configuration or manipulation of the Service or any Materials, in each case not specifically recommended in writing by us.

Under no circumstances (including but not limited to any act or omission on our part) will we be liable for any loss or damages (including, without limitation, indirect, incidental, special or consequential or punitive damages and damages for loss of profits) whatsoever which result from any use, or any inability to use, the Service or any Materials.

To the maximum extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded is limited at our option to supply of the good or service ordered by you again or paying for their resupply.

Notwithstanding the above, to the maximum extent permitted by law, in no event shall our aggregate liability for any claims arising out of or related to these Terms exceed the greater of one hundred Australian dollars ($100) or the amount that you paid, if any, to us for access to or use of the Service during the six months period immediately prior to the event giving rise to such liability.

You agree to indemnify Noviqu and its related parties, officers, agents and employees (Indemnified Parties) in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment (including legal expenses (on a full indemnity basis) arising from or relating to: (i) your use of the Service or any Materials; (ii) a breach of these Terms by you; and (iii) your breach of any applicable law.

You use the service as-is and at your own risk. We don’t provide any warranties with respect to the service. We do not accept any liability in connection with your use of the service. To the extent we are found liable for anything, the maximum we are obligated to pay is the greater of $100.00 or however much you paid to us during the six months period immediately prior to the event giving rise to such liability.

You indemnify us in respect of any claims arising from your use of the service or from your breach of these terms or any applicable law.

17. Termination and Suspension

This Agreement is in effect for the Term, unless sooner terminated as permitted in these Terms. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of these Terms and does not cure the breach within thirty (30) days after written notice of the breach, or if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.

We may terminate this Agreement before the expiration of the Term if you are in material breach of these Terms more than two times during the Term notwithstanding any cure of such breaches or if you remain suspended at any time for non-payment of Fees for more than sixty days.

You may terminate this Agreement at any time with notice to Noviqu , but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Services or subscription Fees.

Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law, or otherwise.

Except as set forth in this Section, once the Agreement terminates, then: (i) the rights and licenses granted by Noviqu to you will cease immediately (except as set forth in this Section); (ii) you (and your End Users) must cease all use of the Service and any third party Materials; (iii) you must pay to us any and all outstanding Fees for the Term; (iv) you are required to delete the Service and any third party Materials made available to you under this Agreement, including any Noviqu confidential information from your systems as applicable (including any third party systems operated on your behalf) and, if requested by us, provide written certification to us that you have done so at our request; and (v) you undertake not to attempt to access the Service or any data stored in the Service, any third party Materials or the Site after the date of termination.

After termination Noviqu will provide you access to, the data, including email, provided, generated, transmitted or displayed via the Services by you or End Users (Customer Data) for a commercially reasonable period of time at ours then-current rates for the applicable Services. After a commercially reasonable period of time, we will delete Customer Data by removing pointers to it on our active and replication servers and overwriting it over time.

If we become aware of a breach by you of these Terms, then we may specifically request that you suspend the applicable End User Account. If you fail to comply with our request to suspend an account, then we may do so. The duration of any suspension by us will be until the applicable End User has cured the breach which caused the suspension.

This agreement is in effect for the term but can be terminated earlier in certain circumstances.

Either party may terminate this agreement earlier if the other party materially breaches the agreement and does not fix that breach within 30 days or if the other party becomes insolvent or the like.

We may terminate this agreement earlier if you are in material breach of the agreement more than two times during the term (notwithstanding you may have fixed that breach) or if you remain suspended at any time for non-payment of fees for more than sixty days.

You may terminate this agreement at any time by giving us notice in writing, but you will not be entitled to any credits or refunds of subscription your fees.

18. Survival

The following provisions will survive any termination or expiration of this Agreement: Sections 5 (Intellectual Property Rights), 9 (Billing and Payment), 13 (Sharing Content), 15 (Privacy Policy), 16 (Disclaimer, limitation on liability and indemnity), 17 (Termination and suspension), 20 (General) and any other Sections which by intent or meaning have validity beyond termination or expiration of this Agreement.

Some terms continue to apply even when the agreement ends.

19. Amendments

We may update or modify these Terms from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our Site, through your account, or in the Service itself). If we modify these Terms during the Term, the modified version will be effective upon your next renewal of the Term, as applicable. In this case, if you object to the updated Terms, as your exclusive remedy, you may choose not to renew, including cancelling any Terms set to auto-renew.

With respect to No-Charge Services, accepting the updated Terms is required for you to continue using the No-Charge Services. You may be required to click through the updated Terms to show your acceptance. If you do not agree to the updated Terms after it becomes effective, you will no longer have a right to use No-Charge Services. For the avoidance of doubt, any Order is subject to the version of the Terms in effect at the time of the Order.

We may change the terms from time to time. If the change is important we will let you know. The changes will become effective upon your next renewal of the term.

With respect to No-Charge Services, accepting the updated terms is required for you to continue using the No-Charge Services. You may be required to click through the updated terms to show your acceptance.

Please regularly check the Site to check for any changes.

20. General

These Terms are governed by the laws of Missouri, the United States of America and the parties agree to submit to the exclusive jurisdiction of the courts in Missouri, United States

If any provision of these Terms is held to be invalid, illegal, or unenforceable that provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and the remainder of the Terms shall be construed in a manner as to give greatest effect to the original intention of these Terms.

The waiver of any right or failure of either of us to exercise in any respect any right provided in these Terms in any instance shall not be deemed to be a waiver of such right in the future or a waiver of any right under these Terms.

Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and internet disturbance) that was beyond the party's reasonable control (Force Majeure).

Your use of any website or software that is not provided by us to access or download the Service shall be governed by the terms and conditions applicable to that website or software. We are not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your Device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by the Service.

Any notices to you may either be posted on the Site or given in writing (which may be by email) to the address last notified by you to Noviqu. Any notices to Noviqu , and any questions, concerns or complaints relating to the Service shall emailed to: info@noviqu.com.

You agree to use your best endeavours to resolve any dispute arising out of or relating to these Terms, with us, prior to resorting to any external dispute resolution process. Please notify us in writing of any dispute you may have.

This Agreement, and any rights and licenses granted hereunder, must not be transferred or assigned by you without our prior express written consent. We may, without restriction, assign this Agreement and our rights and delegate our obligations hereunder to: (i) any of our affiliates or subsidiaries, or (ii) a third party participating in a merger, acquisition, sale of shares or assets, change of control, corporate reorganization or similar transaction in which Noviqu is participating.

In respect of the subject matter of the Terms, these Terms contain the entire understanding between the parties. Any previous oral and written communications, representations, warranties or commitments are superseded by the Terms and do not affect the interpretation or meaning of the Terms and each of the parties has relied entirely on its own enquiries before entering into the Terms.

This section contains terms regarding what law applies to the Agreement, what process needs to be followed if a dispute arises between us, the ability to transfer rights under this Agreement, notification procedures and the interpretation of these terms.

Appendix 1 (Data Protection Compliance)

In this Appendix and in Appendix 2 (Data Processing Agreement):

Data Protection Laws means the EU Data Protection Laws and the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the EU Data Protection Laws in relation to the processing of personal data and sensitive personal data.

EU Data Protection Laws means, up to and including 24 May 2018, any legislation in force from time to time which implements the EU Directive 95/46/EC and relevant national implementations of the same and, with effect on and from 25 May 2018, means the GDPR and any relevant national implementations of the same;

personal data, sensitive personal data, consent, controller, processor, data subject and processing mean those concepts, roles and activities as defined in the applicable EU Data Protection Laws and on and from 25 May 2018 sensitive personal data means those classes of personal data that are described in Article 9 of the European General Data Protection Regulation 2016/679) or, where relevant, equivalent concepts, roles and activities as described in other Data Protection Laws.

We are the controller in respect of personal data and sensitive personal data, such as account registration details, that we collect directly from users of the Services (End Users) and users of No-Charge Services, and which we use for the purposes of our business.

You are the controller and we are the processor in respect of any other personal data and sensitive personal data (including within Your Modifications) that is uploaded by End Users and/or users of No-Charge Services including data, templates, information, content, code, video, images or other material of any type (Materials), or which is provided by your administrators (see Section 10 above).

On and from 25 May 2018, to the extent that the Services and/or Non-Charge Services comprise the processing of personal data or sensitive personal data where we are the processor and you are the controller and the processing of personal data or sensitive personal data is subject to the GDPR:

  • you will comply with the requirements of the GDPR as the same apply to you as controller of the personal data or sensitive personal data; and
  • the provisions of Appendix 2 (Data Processing Agreement) to these Terms shall apply

We will present our Privacy Policy to you and to others who may download Materials where we are a controller. To the extent that we do not have direct contact with End Users or the relevant data subjects, for example, where personal data or sensitive personal data is uploaded relating to your employees or customers, and where we are a processor and not a controller, it is your responsibility to ensure that in accordance with Article 13 of the GDPR: There is a lawful basis for the collection and processing of personal data and/or sensitive personal data; and you present our Privacy Policy to those End Users and other data subjects, as required

Appendix 2 (Data Processing Agreement)

The provisions of this Appendix (Data Processing Agreement) form part of the Agreement to the extent that Section 6 of the Agreement applies.

Noviqu shall:

  1. process personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by European Union or the national law of an EU member state to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
  2. ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
  3. implement appropriate organisational and technical measures as required pursuant to Article 32 (security of processing) of the EU General Data Protection Regulation 2016/679. The measures that we consider appropriate are more fully described in Noviqu Architecture and Security document (a copy of which is available on request). This document outlines:
    • our architecture and infrastructure through which Services and No-Charge Services are provided;
    • security controls employed by us and our service providers in protecting personal and/or sensitive personal data; and
    • security controls employed by our support channels which handle personal data or sensitive personal data.
  4. respect the conditions for engaging another processor referred to in paragraphs 2 and 4 of Article 28 (processor) of the EU General Data Protection Regulation 2016/679;
  5. taking into account the nature of the processing, assist the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the EU General Data Protection Regulation 2016/679;
  6. assist the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the EU General Data Protection Regulation 2016/679 taking into account the nature of the processing and the information available to the processor;
  7. at the choice of the controller, delete or return all the personal data to the controller after the end of the provision of services relating to processing, and delete existing copies unless EU law or the national law of an EU member state or another applicable law, including any Australian state or Commonwealth law to which the processor is subject requires storage of the personal data;
  8. make available to the controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 (processor) of the EU General Data Protection Regulation 2016/679 and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller (in each case at the controller's cost).