Master Services Agreement

PLEASE READ THIS MASTER SERVICES AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE PURCHASING AND/OR USING (I) THE SERVICES OF NOVA ORBIS, INC. OR ITS WHOLLY-OWNED SUBSIDIARY NAMED IN AN SERVICE ORDER (“NOVA”), (II) PROFESSIONAL SERVICES, (III) WEBSITE, (IV) THIRD PARTY INTEGRATIONS, OR (V) OTHER SERVICES AS DETAILED WITHIN A SERVICE ORDER, (COLLECTIVELY, “NOVA FULL SERVICES”). BY SIGNING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT OR BY ACCESSING OR USING THE NOVA FULL SERVICES, YOU AGREE ON BEHALF OF THE ENTITY YOU REPRESENT (“CUSTOMER”) THAT YOU HAVE READ AND AGREE FOR CUSTOMER TO BE BOUND BY AND BE A PARTY TO THIS AGREEMENT AS WRITTEN, UNLESS OTHERWISE EXPRESSLY AGREED UPON BY CUSTOMER AND NOVA IN THE APPLICABLE SERVICE ORDER THROUGH LANGUAGE THAT REFERENCES THIS AGREEMENT AND COMMUNICATES THE PARTIES’ INTENT TO MODIFY ONE OR MORE SPECIFIC PROVISIONS OF THIS AGREEMENT WITH RESPECT TO SUCH SERVICE ORDER. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER. NOVA AND CUSTOMER MAY BE SINGULARLY REFERRED TO IN THIS AGREEMENT AS A “PARTY”, OR COLLECTIVELY, AS THE “PARTIES.” IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE NOVA FULL SERVICES IN ANY MANNER.

THIS AGREEMENT INCLUDES THE PROVISIONS IN THIS DOCUMENT, AS WELL AS THOSE IN THE PRIVACY POLICY AND THE NOVA DATA PROCESSING ADDENDUM (ONLY TO THE EXTENT THAT YOU PROVIDE CUSTOMER PERSONAL DATA THAT IS SUBJECT TO DATA PROTECTION LAWS (AS DEFINED IN THE NOVA DATA PROCESSING ADDENDUM)).

NOVA MAY UPDATE OR CHANGE THIS AGREEMENT AT ANY TIME IN ITS DISCRETION. IF NOVA MAKES ANY CHANGES TO THIS AGREEMENT THAT IT DEEMS TO BE MATERIAL, NOVA WILL MAKE A REASONABLE EFFORT TO INFORM YOU OF SUCH CHANGE. IF YOU OBJECT TO A CHANGE, YOUR EXCLUSIVE REMEDY IS TO CEASE ANY AND ALL ACCESS AND USE OF THE NOVA FULL SERVICES.

1. Definitions.

1.1 “Account Data” means any personally identifiable information or other information provided to Nova by an User or End User in connection with such User or End User registering for an account with Nova. 

1.2 “Customer Data” means the non-public, proprietary data, such as Customer’s document templates, provided to or made accessible to Nova by Customer under this Agreement for the purpose of obtaining the Services. Notwithstanding the foregoing, End User Data and Account Data shall not be deemed to be Customer Data.

1.3 “End User” means an end user (e.g., a potential investor of Customer) of the Services. For the sake of clarity, Users shall not be considered to be End Users.

1.4 “End User Data” means any non-public data, such as an End User’s responses to questions contained in Customer’s document templates, provided to or made accessible to Nova by an End User.

1.5 “Fees” means all amounts owed to Nova under this Agreement, as specified in the Service Order(s).

1.6 “Professional Services” means any implementation services, training, consulting services or other professional services provided by Nova as specified in a Service Order.

1.7 “Screening Report” means a screening report about an entity that is provided via the Services.

1.8 “Service Order” means an initial service order attached hereto, and any subsequent service orders, order forms or other ordering documents agreed to between the Parties in writing from time to time and made a part of this Agreement, specifying, among other things, the scope of the Services, Professional Services, Fees, and Subscription Term (as defined in the Service Order). Upon mutual execution, each Service Order will be governed by the terms and conditions hereof and is deemed incorporated herein by this reference. 

1.9 “Services” means Nova’s software-as-a-service platform (including any related access to Nova’s application programming interface) made available through the Website, as further described in one or more Service Orders hereunder. For the sake of clarity, any Third-Party Integrations es shall not be deemed to be a part of the Services.

1.10 “Subscription Fees” means all Fees other than fees for Professional Services.


1.11 “Subscription Term” means the term for Customer’s use of the Services as identified in a Service Order. 

1.12 “Third-Party Integration” means an integration between a (i) Web-based, mobile, offline or other software application functionality provided by Customer or a third party, and (ii) the Service. For the sake for clarity, Third-Party Integrations shall not include integrations with third-party applications or services used by Nova to provide Nova’s software-as-a-service platform.

1.13 “Usage Data” shall mean data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom).

1.14 “User” means an employee, representative, consultant, contractor or agent of Customer who is authorized to use the Services on behalf of Customer.

1.15 “Website” means https://novahq.com.

2. Services.

2.1 Right to Access and Use.  Subject to the terms and conditions of this Agreement, Nova hereby grants Customer and its Users a non-exclusive, non-transferable (except in accordance with Section 12.5) right, during the Subscription Term, to access through the Website and use the Services solely for Customer’s internal business purposes.

2.2 Users.  If a Service Order limits the number of Users that may use the Services on behalf of Customer, then Customer may have only as many User accounts in use at any one time as the number of Users specified in the applicable Service Order.  Customer acknowledges that Nova may include in its Services functionality to track the number of active Users and to disallow use by more than the authorized number of Users, if applicable.  User identifications and passwords cannot be shared or used by more than one User.  As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. Nova reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Customer is responsible for each User’s compliance with this Agreement and for all activities that occur under Customer’s User accounts.  Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and shall promptly notify Nova of any known unauthorized access or use. 

2.3 Service Restrictions.  Customer and its Users shall not (a) use the Services or a Third-Party Integration to send spam or unsolicited messages, collect data regarding others without their consent, transmit unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar or obscene material or material harmful to minors, transmit viruses or other harmful computer code; (b) attempt to interfere with or disrupt  the performance of the Services or the data contained therein; (c) attempt to gain unauthorized access to the Services or networks related to the Services, (d) interfere with another’s use of the Services; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Services available to any third party, except for Users and End Users; (f) modify, copy, or make derivative works based on the Website or the Services; (g) disassemble, reverse engineer, or decompile the Services; (h) create “links” to or from the Website or the Services, or “frame” or “mirror” any of Nova’s content; (i) use the Services in any manner or for any purpose that is unlawful under applicable laws; or (j) access the Website or the Services to build a competitive service, reproduce features of the Services, or resell the Services. 

2.4 Customer Responsibilities. Customer will (a) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Third-Party Integrations with which the Customer uses the Services; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services by Users and End Users, and notify Nova promptly of any such unauthorized access or use; (c) use the Services (including the Screening Reports provided in connection therewith) in accordance with this Agreement and applicable laws and government regulations (including the federal Fair Credit Reporting Act, 15 USC §§ 1681 et seq. and any equivalent state laws, as they may be amended from time to time); (d) comply with terms of service of any Third-Party Integrations with which Customer uses the Services; and (e) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, and the like. Any use of the Services in breach of Sections 2.3 or 2.4 by Customer or Users, may result in Nova’s immediate suspension of the Services.  In addition, Nova may suspend the Services in the event of exigent circumstances which reasonably requires suspending access to the Services in order to protect the availability, security and/or integrity of the Services or Customer Data.  Upon any such suspension, Nova will use commercially reasonable efforts to provide Customer with notice and will promptly restore Services upon resolution of the factors that initiated the suspension.  If reasonable under the circumstances, Nova will also provide Customer with an opportunity to remedy any breach of Sections 2.3 or 2.4 prior to any such suspension.

2.5 Third-Party Integrations. The Services may contain features designed to interoperate with Third-Party Integrations. Nova cannot guarantee the continued availability of such features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Integration ceases to make the Third-Party Integration available for interoperation with the Services in a manner acceptable to Nova. Customer grants Nova and its subcontractors a worldwide, limited-term license to host, copy, use, transmit, and display any Third-Party Integrations and program code created by or for Customer using the Services or for use by Customer with the Services, as necessary for Nova to provide and ensure proper operation of the Services. Customer grants Nova permission to allow the Third-Party Integration and its provider to access Customer Data and information about Customer’s usage of the Third-Party Integration as appropriate for the interoperation of that Third-Party Integration with the Services. Nova is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such a Third-Party Integration or its provider. Nova does not warrant or endorse Third-Party Integrations. If Customer receives notice from Nova or the provider of a Third-Party Integration that a Third-Party Integration must be removed, modified and/or disabled to avoid violating applicable law or third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Nova’s judgment continued violation is likely to reoccur, Nova may disable the applicable Third-Party Integration.

2.6 Support and Service Level.  Nova will provide technical support to Customer via email on weekdays during the hours of 6:00 AM to 9:00 PM Pacific time, with the exclusion of United States federal holidays. Customer may submit a support request at any time by emailing [email protected]. Nova will use commercially reasonable efforts to provide the Services in accordance with the service level commitments contained in Exhibit A to this Agreement. 

2.7 Professional Services. Subject to the terms and conditions of this Agreement, including the payment of any applicable fees, Nova will provide Customer the Professional Services specified in a Service Order.  Nova retains all right, title and interest in and to (a) anything it uses or develops in connection with performing Professional Services for Customer, including, among other things, software, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how and (b) any reports or other items or materials it delivers to Customer during the course of performing Professional Services (collectively, “Deliverables”), unless otherwise specified in the applicable Service Order. Nova hereby grants to Customer and its Users a non-exclusive, non-transferable (except as permitted under Section 12.5), worldwide, royalty-free, limited-term license to use the Deliverables during the Term (as defined below) solely in conjunction with Customer’s use of the Services. Customer may not copy, modify, or otherwise create derivative works of any Deliverables without Nova’s prior written consent.

2.8 User Terms. All Users and End Users who access the Services will be required to agree to Nova’s terms of service found at  https://novahq.com/legal/terms-of-service (the “TOS”) as in effect at the time such User or End User’s first accesses the Services.

3. Customer Data.

3.1 Customer Data and Usage Data.  Customer hereby grants Nova a non-exclusive, non-transferable (except in accordance with Section 12.5), sublicensable (solely as necessary for Nova and its subcontractors to carry out Nova’s obligations under this Agreement) right to collect, access, use, copy, analyze, modify, create derivative works of and display the Customer Data and Usage Data solely: (a) as necessary to provide the Services in accordance with the terms of this Agreement; (b) to deliver to Customer any analytics reports derived from processing the Customer Data (“Reports”); (c) to generate aggregated statistical data, in de-identified form (collectively, “Aggregated Data”) and use such Aggregated Data (both during and after the Term) for Nova’s business purpose, including but not limited to marketing purposes, to improve and develop the Services or Nova’s other products or services or for industry presentations and reports.  Customer hereby authorizes Nova to collect and use the Customer Data, Usage Data and Reports as provided for in this Section 3.1.

3.2 Security of Customer Data. Nova shall maintain and enforce reasonable and appropriate physical, technical, policy and administrative safeguards, precautions and measures where Customer Data is, or can be, accessed, stored or transmitted by Nova, to protect the Customer Data from loss, misuse, alteration, corruption, unauthorized access, or unauthorized acquisition. Nova has completed a successful SOC 2 Type 1 audit and will maintain its SOC 2 Type 1 compliance during the Term.

3.3 Sensitive Data.  Unless the Parties otherwise agree in writing, Customer may not include in any Customer Data any information that is subject to (a) the Payment Card Industry Data Security Standard (b) the requirements of the Gramm-Leach-Bliley Act, (c) the Health Insurance Portability and Accountability Act of 1996’s requirements for business associates, or (d) other similar frameworks ((a) through (d) collectively referred to as the “Standards”). In the event that the Parties mutually agree in writing that Customer may include information governed by the Standards in the Customer Data, the Parties shall execute such additional agreements or addenda to this Agreement that are reasonably necessary to ensure that Nova processes such additional Customer Data in accordance with the Standards, the terms of which will be mutually agreed on by the Parties.

3.4 Data Protection. To the extent that Nova processes personal data (as defined in EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council) that is included in the Customer Data, Nova agrees to do so only as a data processor and, upon Customer’s request, the Parties will enter into a separate data processing agreement (“DPA”). 

4. Fees and Billing.

4.1 Fees.  Customer shall pay the Fees as specified in the Service Order. Unless otherwise specified in the Service Order, (i) Subscription Fees will be prepaid by Customer on an annual basis, and (ii) all Fees for Professional Services will be prepaid by Customer.  If Customer’s use of the Services exceeds any limits on the number of Users, transactions or other capacity restrictions set forth in a Service Order, Customer shall be billed for such excess usage and Customer agrees to pay such additional fees in the manner provided for in the Service Order. Nova reserves the right to change the Fees and to institute new charges and fees at the end of the Initial Term or then-current Renewal Term (each as defined in the applicable Service Order), upon thirty (30) days prior notice to Customer (which may be sent by email). However, if the Customer agrees to an automatic renewal of the Subscription Term in Section 10.1 of this Agreement or in the applicable Service Order, (x) the Subscription Fees for the renewal Subscription Term shall not increase by more than the increase in the Consumer Price Index (CPI) over the expiring Subscription Term, and (y) Nova shall communicate all such price increases at least sixty (60) days prior to the start of the renewal Subscription Term. Any introductory or temporary discount offered in the expiring Subscription Term does not apply for a Renewal Term. All Fees will be quoted in, and all payments must be made in,U.S. dollars. All payments are nonrefundable and noncancelable except as expressly provided for herein.

4.2 Invoices. The Fees will be invoiced to Customer as described in the Service Order. Unless otherwise set forth in the applicable Service Order, all payments shall be made within thirty (30) days after the date of Nova’s invoice. If Customer believes that Nova has billed Customer incorrectly, Customer must contact Nova no later than 30 days after the date of the applicable invoice in which the error or problem appeared, in order to be eligible to receive an adjustment or credit. In the event there are overdue Fees which have not been paid within five (5) business days of receiving a late notice from Nova, Customer shall be responsible for (i) interest on the overdue amounts at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, and (ii) all reasonable costs of collection (including attorneys’ fees) incurred by Nova.  Such overdue payments may also result in suspension or termination of the Services until all amounts are paid in full. 

4.3 Taxes.  All payments required by this Agreement exclude all sales, value-added, use, or other taxes and similar obligations, all of which Customer will be responsible for and will pay in full, except for taxes based on Nova’s net income.

5. Proprietary Rights. 

5.1 Nova Technology. Customer acknowledges that in providing the Services, Nova utilizes (a) analytical, predictive, and optimization models; (b) frameworks, algorithms and similar systems; (c) other technology; (d)the Website, and (e) Nova’s name, logo and other attributions (collectively, "Nova Technology").  Subject to the limited rights granted to Customer to use the Services pursuant to Section 2.1, as between Nova and Customer, Nova retains all rights, title and interest, including all intellectual property rights, in and to the Nova Technology and the Services, and any and all modifications, enhancements, customizations or improvements to any of the foregoing. 

5.2 Customer Data. Subject to the express rights granted to Nova to use the Customer Data under this Agreement, as between Customer and Nova, Customer retains all rights, title and interest, including all intellectual property rights, to Customer Data. 

5.3 Account Data and End User Data. Ownership and other rights with respect to Account Data and End User Data will be as set forth in the TOS.

5.4 Feedback. If Customer provides suggestions, feedback or other input to Nova concerning the functionality and performance of the Services, including identifying potential errors and improvements (collectively “Feedback”), then Customer hereby grants Nova and its affiliates a worldwide, irrevocable, perpetual, transferable, sublicensable, non-exclusive, royalty-free, fully paid-up right and license to use, perform, display, reproduce, create derivative works, and otherwise exploit such Feedback for any purpose, provided that such Feedback does not include any Confidential Information (as defined below) of Customer.

6. Confidentiality.

6.1 Definition of Confidential Information.  As used herein, "Confidential Information" means all information of a Party ("Disclosing Party"), which if disclosed to the other Party ("Receiving Party"): (a) in tangible form, is designated in writing as being confidential at the time of disclosure, (b) orally or visually, is identified as confidential at the time of disclosure, or (c) in tangible form or orally or visually and is of a nature that a reasonable person would understand it to be confidential based on the circumstances under which it was disclosed.  The Confidential Information of Nova shall include, without limitation, the terms and conditions of this Agreement, the Nova Technology and the Services.  The Confidential Information of Customer shall include, without limitation, the Customer Data. For the sake of clarity, Account Data and End User Data shall not be deemed to be Confidential Information of Customer or Nova and shall instead be governed by Nova’s TOS and Privacy Policy.  Confidential Information shall not include any information that:  (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party or (iv) is required by law to be disclosed (in which case the Receiving Party shall provide the Disclosing Party with a reasonable opportunity to seek a protective order maintaining confidentiality).

6.2 Confidentiality Obligations.  The Receiving Party shall not (a) use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations and exercise its rights under this Agreement, or (b) disclose, publish, or disseminate Confidential Information of the Disclosing Party to anyone other than its personnel (including employees, contractors, service providers and consultants) who have a need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by a written agreement that prohibits unauthorized disclosure or use of Confidential Information that is at least as protective of the Confidential Information as the Receiving Party’s obligations hereunder.    Notwithstanding the foregoing, (i) the Receiving Party shall have the right to share the existence and nature of this Agreement with potential investors or acquirers, or with such Party’s attorneys, accountants, bankers, or other professional advisors in connection with a financing, merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets, so long as said parties have entered into confidentiality agreements (or are bound by statutory confidentiality obligations) with Nova containing terms substantially similar to those set forth herein and (ii) Nova may disclose the terms of this Agreement and any applicable Service Order to a subcontractor or Third-Party Integration provider to the extent necessary to perform Nova’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

6.3 Protection.  Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information.

6.4 Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, provided that the Receiving Party shall make reasonable efforts to provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party's cost) if the Disclosing Party wishes to obtain protective treatment of the Confidential Information.

6.5 Return and Destruction. All Confidential Information in any form shall at all times remain the Disclosing Party’s property and upon the Disclosing Party’s written request or following termination of this Agreement, the Receiving Party agrees to deliver to the Disclosing Party, or if not practicable, destroy, all of the Disclosing Party’s Confidential Information in the Receiving Party’s possession, except that the Receiving Party may retain copies of Confidential Information contained in computer files maintained pursuant to the Receiving Party’s customary archiving or back-up procedures (provided that such retained copies shall remain subject to this Section 6).

6.6 Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

7. Representations and Warranties; Disclaimer.

7.1 Mutual Warranties.  Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (b) the execution, delivery, and performance of this Agreement does not violate any other agreement to which it is a party or by which it is otherwise bound.

7.2 By Nova.  Nova represents, warrants and covenants that (i) the Services will operate materially in accordance with the user documentation applicable to the Services that Nova makes generally available to its customers; and (ii) it shall perform the Professional Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Nova or by third-party providers, or because of other causes beyond Nova’s reasonable control, but Nova shall use reasonable efforts  to provide advance notice in writing or by e-mail of any scheduled service disruption. If any of the Professional Services do not conform to the foregoing warranty in (ii), Customer shall notify Nova in writing, and Nova agrees to re-perform the Professional Services in a manner that does materially conform. The foregoing sentence is Nova’s sole obligation, and Customer’s sole remedy, for any breach of the warranty set forth in part (ii) of this Section 7.2.

7.3 By Customer.  Customer represents, warrants and covenants that: (a) Customer has the necessary rights and permissions or approvals to use and to permit the use, collection and storage of the Customer Data by Nova as contemplated by this Agreement; and (b) Customer’s use of the Services, and Customer’s collection, use and processing of End User Data received by Customer via the Services, will be in compliance with, and will not violate, (i) any applicable laws, including any privacy and data protection laws and (ii) Customer’s own privacy policies. Customer further represents, warrants and covenants that the Customer Data does not and will not infringe any intellectual property rights or other rights of a third party.  In the event of a breach, or reasonably anticipated breach, of the foregoing warranties, in addition to any other remedies available at law or in equity, Nova will have the right, in its sole discretion, to immediately suspend any related Services if deemed reasonably necessary by Nova to prevent any liability accruing to it.

7.4 DISCLAIMERS. NEITHER NOVA NOR OF ANY OF ITS PERSONNEL OR AFFILIATES ARE PROVIDING ANY INVESTMENT OR LEGAL ADVICE THROUGH CUSTOMER’S USE OF THE SERVICES AND CUSTOMER AGREES THAT IT WILL SEEK INDEPENDENT FINANCIAL AND/OR LEGAL ADVICE WHERE NECESSARY OR APPROPRIATE. NOVA MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AS TO WHETHER THE SERVICES ARE COMPLIANT WITH ANY LAWS, REGULATIONS, RULES, OR ORDINANCES OF ANY JURISDICTION. CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) NO REGULATORY AUTHORITY HAS EXAMINED OR APPROVED THE SERVICES AND THAT NOVA IS NOT A BROKER-DEALER OR REGULATED BY THE FINANCIAL INDUSTRY REGULATORY AUTHORITY, (II) NOVA OBTAINS THE INFORMATION IN THE SCREENING REPORTS FROM THIRD PARTY SOURCES “AS IS”, AND THEREFORE PROVIDES SUCH SCREENING REPORTS TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND (III) NOVA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE COMPLETENESS OF ANY SCREENING REPORTS OR THAT THE SCREENING REPORTS WILL MEET CUSTOMER’S NEEDS. THE WARRANTIES SET FORTH ABOVE IN THIS SECTION 7 ARE THE PARTIES’ SOLE WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.  EXCEPT AS EXPRESSLY STATED IN THIS SECTION 7, THE SERVICES ARE PROVIDED “AS IS” AND NOVA MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY STATED IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.

8. Limitations of Liability.

8.1 Exclusions.  EXCEPT FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CUSTOMER’S BREACH OF SECTION 2.3 OR SECTION 2.4, OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT (INCLUDING THE DPA) FOR: (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; OR (C) ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO NOVA UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE  FIRST CLAIM, IN EACH CASE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, NOVA WILL NOT BE LIABLE FOR ANY DAMAGES OR MATTER BEYOND NOVA’S  REASONABLE CONTROL
8.2 Basis of the Bargain; Failure of Essential Purpose.  Customer acknowledges that Nova has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties.  The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

9. Indemnification.

9.1 By Customer. Customer shall defend, indemnify and hold harmless Nova and its shareholders, officers, directors, employees, affiliates and agents (each an “Nova Indemnified Party”) from and against any and all damages, liabilities, costs, expenses, and losses (including, without limitation, reasonable legal fees) (collectively, “Losses”) incurred by such Nova Indemnified Party arising out of any third-party claim, action, suit or proceeding brought against an Nova Indemnified Party to the extent such Losses relate to (a) a breach of any of Customer’s warranties set forth in Section 7.3, (b) any Customer Data, Account Data or End User Data or Nova’s use of any such data in accordance with this Agreement, (c) a Third-Party Integration provided by Customer,  (d) Customer’s or its Users’ use of the Services in violation of this Agreement, or (e) Customer’s use of the Screening Reports (or the information contained therein) in violation of applicable laws and government regulations (including the federal Fair Credit Reporting Act, 15 USC §§ 1681 et seq. and any equivalent state laws, as they may be amended from time to time).


9.2 By Nova. Nova shall defend, indemnify and hold harmless Customer and its shareholders, officers, directors, employees, affiliates and agents (each a “Customer Indemnified Party”) from and against any and all Losses incurred by such Customer Indemnified Party arising out of any third-party claim, action, suit or proceeding brought against a Customer Indemnified Party to the extent such Losses relate to any allegation that the Services directly infringe any U.S. patents or copyrights or misappropriate any trade secrets recognized as such under the Uniform Trade Secrets Act (an “Infringement Claim”). If the Services become, or in Nova’s opinion are likely to become, the subject of an Infringement Claim, Nova may, at its option and expense, either (a) procure for Customer the right to continue using the Services, (b) replace or modify the Services so that they become non-infringing, or (c) if options (a) and (b) are not commercially practicable in Nova’s reasonable estimation, terminate the applicable Service Order and give Customer a prorated refund of the Subscription Fees prepaid by Customer for the then current Initial Term or Renewal Term.  Notwithstanding the foregoing, Nova will have no obligation under this Section 9.2 or otherwise with respect to any Infringement Claim to the extent it is based on: (i) any use of the Services not in accordance with this Agreement, (ii) any use of the Services in combination with other products, equipment, software, systems, devices or data not supplied by Nova (e.g., Third Party Integrations), unless the Infringement Claim would have arisen irrespective of such combination, or (iii) any modification of the Services by any person other than Nova’s personnel in violation of this Agreement.  This Section 9.2 states Nova’s entire liability and Customer’s sole and exclusive remedy for Infringement Claims.

9.3 Indemnification Process. The indemnified party will (i) promptly give the indemnifying party written notice of any claim for which it seeks indemnification under this Section 9, (ii) give the indemnifying party sole control of the defense and settlement of such claim (except that the indemnifying party may not settle any claim unless it unconditionally releases the indemnified party of all liability), and (iii) give the indemnifying party all reasonable assistance with such claim, at the indemnifying party’s expense. The Parties agree that the indemnified party may join in the defense of any such claim with its own counsel at its expense.

10. Term and Termination.

10.1 Term.  The term of this Agreement shall commence on the Effective Date and shall  continue for so long as there is a Service Order in effect (the “Term”), unless terminated earlier as provided herein.  Except as otherwise set forth in the Service Order, the term of Customer’s subscription for all recurring Services under a Service Order shall automatically renew for the same period as the Initial Term set forth in a Service Order unless either Party provides the other Party with written notice of its intent not to renew at least thirty (30) days prior to the Service Order’s Subscription End Date.

10.2 Termination. Either Party will have the right to terminate this Agreement, or the applicable Service Order, if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same or if the material breach is incapable of being cured.  The foregoing cure period shall not apply in the case of failure to pay Fees. Either Party may terminate this Agreement if: (i) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; (ii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing or (iii) the other Party ceases its operations. Any termination of this Agreement shall automatically result in the termination of all Service Orders, but any termination of a Service Order shall not serve to terminate this Agreement  or any other Service Order.

10.3 Effect of Termination.  Upon the effective date of expiration or termination of this Agreement for any reason: (a) Nova may immediately cease providing the Services hereunder; (b) any and all payment obligations of Customer under this Agreement will become due immediately; and (c) Nova will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but shall thereafter delete stored Customer Data.

10.4 Survival.  The following provisions will survive any expiration or termination of the Agreement:  Sections 1, 2.5, 2.7, 3, 4, 5, 6, 7 8, 9, 10.3, 10.4, 11 and 12.

11. Marketing and Publicity.

Nova will not issue, publish, disclose or release any information regarding its relationship with Customer or utilize any of Customer’s logos, trademarks, or service marks, or Customer’s name in any advertising, publicity, press release, presentation, or promotion without the express prior written consent of Customer, except that Nova may list Customer as a customer in written, oral and electronic materials which generally include the names of Nova’s customers without obtaining prior written consent.

12. Miscellaneous Provisions.

12.1 Force Majeure.  Except for the obligation to pay money, neither Party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, cyberattacks or war, hosting or similar services outages or denial of service other than for such Party’s breach, cyberattacks,  worms, bots, or similar malware. In the event that a force majeure event prevents a Party from performing it obligations hereunder for more than sixty (60) days, the other Party may terminate this Agreement with fifteen (15) days written notice, in which case Customer will receive a prorated refund of any Subscription Fees already paid for the then-current Initial Term or Renewal Term, as applicable.

12.2 Governing Law; Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.  Any dispute arising out of this Agreement will be subject to the exclusive jurisdiction of the state courts located in San Francisco, California and the federal courts of the United States in the Northern District of California, and each Party consents to the personal jurisdiction thereof and waives any right it may otherwise have to challenge the appropriateness of such forums. Notwithstanding, either Party may seek injunctive relief in any court of competent jurisdiction to protect its intellectual property rights.

12.3 Severability; Waiver.  If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified so as best to accomplish the original intent of the Parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.  The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.

12.4 Construction.  The Parties acknowledge and agree that they have had the opportunity to review and discuss this Agreement with and obtain advice from their legal counsel.  Therefore, the Parties waive the application of any rule of construction providing that ambiguities in an agreement will be construed against the Party drafting such agreement.

12.5 Assignment.  Neither Party shall have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party, except that each Party may assign this Agreement with written notice to the other Party as part of a corporate reorganization, upon a change of control, consolidation, merger, or sale of all or substantially all of its assets to which this Agreement relates.  Any attempted assignment or delegation without such consent will be void.  Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.

12.6 Notices.  Any notice or communication required or permitted to be given hereunder may be delivered by registered or certified mail, return receipt requested, or by rapid delivery service with tracking enabled, to the address for the applicable Party noted on the signature page of this Agreement, or at such other address as may hereafter be furnished in writing by either Party.  Such notice will be deemed to have been given as of the date it is delivered. 

12.7 Independent Contractors; Subcontractors.  Nova and Customer are independent contractors.  This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Nova and Customer.  Neither Nova nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.  Nova shall have the right to use such subcontractors and third parties as it deems necessary to carry out its duties under this Agreement. 

12.8 Entire Agreement.  The terms and conditions of any Service Order and any exhibits, schedules, the DPA, and other documents referenced herein or therein are incorporated into the terms and conditions of this Agreement, and constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.  This Agreement may only be amended or modified by a writing signed by both Parties.  In the event of any conflict in the documents which constitute this Agreement, the order of precedence will be (a) any Service Order; (b) this Master Services Agreement (unless a particular provision of the Master Services Agreement expressly states otherwise); and (c) any other schedules, exhibits and other documents referenced and incorporated herein and therein.  This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.

Service Levels

1. Scheduled Downtime. 

When needed, Nova will schedule downtime for routine maintenance or system upgrades (“Scheduled Downtime”) for its Services.  Nova will exercise commercially reasonable efforts to schedule Scheduled Downtime outside of peak traffic periods, and to notify Customer’s account administrator at least seventy - two (72) hours prior to the occurrence of Scheduled Downtime.

2. Guaranteed Uptime.

a. The Services will be accessible at least 99.5% of the time, 7 days per week, and 24 hours per day (“Guaranteed Uptime”), as calculated over a calendar month.  Such “Guaranteed Uptime” shall not apply to, and Nova will not be responsible for, any downtime which: 1) lasts less than 15 minutes; 2) results from Scheduled Downtime, emergency maintenance or maintenance requested by Customer; 3) results from a failure of equipment, software or services not under the direct control of Nova; 4) results from the failure or degradation of utilities services or other outside services or equipment not the fault of Nova; 5) is caused by a third party not under Nova’s control; or 6) is a result of causes beyond the reasonable control of Nova, including any force majeure event or internet access or related problems.

b. If the Services fail to meet the Guaranteed Uptime in any given month, Customer’s sole remedy and Nova’s entire liability will be for Nova to credit Customer’s account with “Service Level Credits”, to be applied against Customer’s next billing period as follows:

c. To receive a Service Level Credit, Customer must submit a written request for a Service Level Credit to Customer’s designated account manager or the Nova support team. To be eligible, the request must (i) include the dates and times of each incident of downtime experienced by Customer in the month; and (ii) be received by Nova within ten business days after the end of the month in which the downtime occurred.

d. Upon receipt of a Service Level Credit request in compliance with the above requirements, Nova shall have thirty (30) days to review the request and to validate the information provided.  If, Nova determines in good faith that the Services failed to meet the Guaranteed Uptime as alleged in such a request, then Nova will apply such Service Level Credits to Customer’s immediately succeeding invoice.  Service Level Credits will not be redeemable for cash or refunds of prepaid fees. Customer’s failure to comply with the provisions of Section 2(c) above will disqualify it from receiving a Service Level Credit.

e. Any Service Level Credits issued in any given month shall not exceed 1/4^th of Customer’s Subscription Fees for such month.