Terms of Service
IMPORTANT INFORMATION – PLEASEREAD THESE NOVELLA TERMS OF SERVICE (the “Agreement“) CAREFULLY BEFORE OPENING YOUR ACCOUNT AND/OR BEFORE ACCESSING THE SOLUTION (DEFINED BELOW). THIS AGREEMENT CONSISTS OF THE TERMS AND CONDITIONS WHICH GOVERN YOUR, AN INSURANCE BROKER OR BROKERAGE AGENCY OR ANY OTHER PERSON WHO WAS AUTHORIZED BY NOVELLA INSURANCE AGENCY LLC (“Company”) TO USE COMPANY’S SOLUTION (“Broker” or “you”), AND CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND COMPANY. BY CREATING AN ACCOUNT WITH COMPANY AND/OR USING THE SOLUTIONS (IN WHOLE OR IN PART) IN ANY WAY OR MANNER, YOU AGREE THAT YOU ARE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU SHOULD NOT OPEN AN ACCOUNT WITH COMPANY AND IMMEDIATELY CEASE USING OF THE SOLUTIONS.
Company reserves the right at any time to unilaterally modify the Agreement and to impose new or additional terms or conditions on your use of the Solution. In the event of material modifications or additions to the Agreement, Company shall notify you via email or by means of a prominent notice on the Solution. BY CONTINUING TO USE THE SOLUTION OR ANY PART THEREOF FOLLOWING SUCH MODIFICATIONS, YOU AGREE TO BE BOUND BY SUCH MODIFICATIONS.
1. Grant of Right to Use and Restrictions.
1.1 Right to Use. Subject to the terms and conditions of this Agreement, Company hereby grants Broker and Broker accepts, a non-exclusive, non-sublicensable and non-transferable right to use the Solution internally, during the term of this Agreement, solely for performance of a Broker Agreement that was or will be entered into by the parties. “Solution” means the Company’s proprietary online insurance quoting and management platform.
1.2 Restrictions. Except as expressly permitted herein, Broker shall not, directly or indirectly: (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share the Solution or Broker’s account on the Solution with or to any third party; (ii) disclose, publish or otherwise make publicly available the results of any benchmarking of the Solution; (iii) use the Solution for purposes of competitive analysis or the development of a competing software product or service; (iv) use the Solution in any manner that is prohibited by law; (v) exceed any use limitations or other restrictions that are specified by Company; (vi) contest Company’s Intellectual Property Rights (as defined below) to the Company IPR (as defined below); (vii) use the Solution for any purpose other than as permitted by this Agreement or attempt to access any part of the Solution or its servers without authorization or by unauthorized means; (viii) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Solution, such as features that restrict or monitor use of the Solution; (ix) process through the Platform any information not in compliance with all applicable laws, after obtaining all required consents and making all required disclosures; or (x) cause or permit any third party to do any of the foregoing. Broker is solely responsible for acquiring and maintaining all of the hardware and software necessary to access and make use of the Solution.
1.3 Insurance Information. Broker may upload information and documents to the Solution in connection with insurance business (collectively, “Insurance Information”). Broker warrants and represents that (i) all Insurance Information is truthful, accurate, up-to-date and complete; (ii) Broker has the necessary licenses, rights, consents, and permissions to upload the Insurance Information to the Solution and to grant to Company the license granted herein; (iii) the Insurance Information, and Company’s use of the Insurance Information, does not infringe, violate, or misappropriate any third party right.
2. Consideration. Currently use of the solution is free, without derogating from any payment terms set forth in a Broker Agreement or any other agreement between the parties. Any taxes that apply to use of the Solution, shall be borne by Broker.
3. Confidentiality. Each party (“Receiving Party”) may have access to certain non-public or proprietary information or materials of the other party (“Disclosing Party”) whether in tangible or intangible form (“Confidential Information”). Without derogating from the foregoing, the Solution and terms of the Agreement and the Broker Agreement shall be deemed as Company Confidential Information. Receiving Party may use the Confidential Information solely for the purpose of exercising its rights under this Agreement. Receiving Party shall not disclose or make available the Confidential Information to any third party, except to its employees and consultants that have a need-to-know such information and that are bound by obligations at least as protective as provided herein. Receiving Party shall protect the Confidential Information using measures at least as protective as those taken to protect its own confidential information of like nature (but in no event less than a reasonable level of care). Receiving Party will promptly notify Disclosing Party in writing in the event of any actual or suspected unauthorized use or disclosure of any Confidential Information. Confidential Information shall not include: (i) information that was in the public domain at the time of disclosure or becomes in the public domain after disclosure not due to breach of this Agreement by Receiving Party; (ii) information that was already in the possession of the Receiving Party before disclosure herein; and (iii) information disclosed to Receiving Party by any third party who is not subject to confidentiality restrictions. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information that it is required to disclose pursuant to applicable laws or an order of any competent authority or court, provided that Receiving Party shall, if permitted by law, notify Disclosing Party in advance of such disclosure in order to enable Disclosing Party to seek confidential treatment or a protective order.
4. Ownership.
4.1. Broker retains all right, title and interest in and to any copyright and other proprietary rights it may have in the Insurance Information uploaded to the Solution. Company will treat Insurance Information as Confidential Information and use reasonable measures to prevent its unauthorized disclosure. By uploading Insurance Information, Broker hereby grants Company a non-exclusive, worldwide, royalty-free, fully paid license to use, store, process, and transmit the Insurance Information (a) to evaluate potential financial transactions with Broker and its clients to which the Insurance Information pertains, and (b) in an aggregated and anonymized format that does not identify the Broker or the client as the source of the Insurance Information, for analytics, statistics, research, development of features and solutions and improving products and services. Once we use any Insurance Information for providing any services herein or disclose it to any insurance agency, the foregoing license shall automatically become perpetual and irrevocable.
4.2. Company or its licensors retain all right, title, interest in and to the Solution, Feedback and all related documentation and Confidential Information and any modifications, improvements and derivatives thereof and all intellectual property rights thereto (“Company IPR“). This Agreement does not convey to Broker an interest in or to any Company IPR but only the limited right to use the Solution pursuant to Section 1 above.
5. Feedback. Broker may provide Company with feedback regarding the Solution and its use, including without limitation suggestions, ideas, bug notes and user experience reviews (collectively, “Feedback”). Company may, at no cost, freely use such Feedback, for any purpose whatsoever and Broker hereby assigns all right, title and interest in and to all Feedback to Company upon creation thereof.
6. Privacy. Company’s privacy policy is available at: www.bynovella.com/unsubscribe. Broker shall ensure to establish the legal basis of processing of the personal information of its personnel and its insurance clients and prospective clients and, if required by law, obtain the consent, of its users and any data subjects.
7. Disclaimer of Warranty.
7.1. THE SOLUTION IS PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOLUTION REMAINS WITH BROKER.
7.2. COMPANY DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOLUTION. COMPANY DOES NOT WARRANT THAT THE SOLUTION WILL IDENTIFY OR FIX ALL OR ANY SPECIFIC VULNERABILITIES; IT IS BROKER’S RESPONSIBILITY TO DECIDE WHETHER TO RELY ON THE RESULTS AT ITS RISK.
8. Limitation of Liability. EXCEPT FOR FRAUD, WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY, MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR INDEMNIFICATION FOR THIRD PARTY CLAIMS PURSUANT TO SECTION 9 BELOW, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY OR ITS AFFILIATES, SHAREHOLDERS, SUPPLIERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES AND/OR LICENSORS (COLLECTIVELY, “AFFILIATES”) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION ANY LOSS OF BUSINESS, LOST PROFITS OR LOST OR DAMAGED DATA, SUFFERED BY ANY PERSON OR ENTITY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL COMPANY’S AND ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED FIVE HUNDRED USD ($500).
9. Indemnification.
9.1. Company agrees to defend Broker from and against any and all claims alleging that the Solution infringe any intellectual property rights of a third party. Company shall indemnify Broker against any damages and losses finally awarded in judgment or settlement as a result of such claim, including reasonable attorney’s fees.
9.2. Broker agrees to defend Company from and against any and all claims arising from: (i) failure of Broker to comply with all applicable laws; (ii) violation of privacy by Broker or a security incident. Broker shall indemnify Company against any damages and losses finally awarded in judgment or settlement as a result of such claim, including reasonable attorney’s fees.
9.3. Indemnifying party’s indemnification obligation shall be subject to the following: (i) indemnified party provides written notice of the claim to indemnifying party promptly after becoming aware thereof; (ii) indemnifying party has sole control of the defense and settlement of the claim; and (iii) indemnified party shall provide reasonable assistance in the defense at indemnifying party’s expense.
10. Term and Termination.
10.1. This Agreement shall be in force until terminated by either party, or for the term set forth in the Broker Agreement.
10.2. Either party may terminate this Agreement: (i) upon ten (10) days’ written notice in the event of a material breach by the other party, unless the other party remedies such breach within the notice period; upon thirty (30) days’ written notice for convenience.
10.3. Upon termination or expiration of this Agreement: (i) the rights granted to Broker under this Agreement shall expire and Broker shall discontinue all further use of the Solution; (ii) each party shall, at the other party’s election, erase or return to the other party all Confidential Information in its possession or under its control, except for information required for compliance with laws or a professional duty or for defense against claims. Sections 1.2, 2-9, 10.2 and 11 shall survive any termination of this Agreement.
11. Miscellaneous. This Agreement shall be construed and governed by the laws of the State of New York, US, without regards to the conflict of law provisions therein. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by the competent Federal and State courts in New York, US, and each party hereby submits itself to the exclusive jurisdiction of these courts. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement represents the entire agreement between Broker and Company regarding the subject matter herein and may be amended only by a written agreement of both parties. Company may collect, retain, use and transfer aggregate data regarding use of the Solution without any restrictions. To the extent any conflict arises between the terms and conditions of this Agreement and those contained in the Broker Agreement, the terms and conditions contained in the Broker Agreement shall prevail. The failure of either party to enforce any rights granted herein or to take action against the other party in the event of any breach herein shall not be deemed a waiver by that party. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Broker may not assign its rights or obligations under this Agreement without the prior written consent of Company. Company may assign its rights and obligations under this Agreement to an affiliate or in connection with a merger, consolidation, reorganization or sale of all or substantially all of its assets.