These Novi Connect Services Terms (these “Terms”) are between Novi Connect, Inc., a Delaware corporation, (“Novi”), and the entity that registers an Account through the Novi Platform (“Company” or “you”), and govern your use of the Novi Connect Services. “Novi” and “you” are each referred to as a “Party” and collectively referred to as the “Parties” throughout these Terms.
1.1 Novi Connect Services. Novi offers a product portfolio management software-as-a-service application (the “Novi Platform”) that enables product designers, manufacturers and suppliers to manage the lifecycle for products, including the initial product formulation and design, the discovery and procurement of product ingredients and associated materials, and other product services (collectively, the “Novi Connect Services”) as further described at https://noviconnect.com. Company wishes to access the Novi Platform to use the Novi Connect Services.
1.2 Novi Users. The Novi Connect Services are available to various types of users (each, a “Novi User”), including Novi Users that formulate products (“Brands”), Novi Users that are engaged by Brands to manufacture products (“Contract Manufacturers”), and Novi Users that supply product ingredients and associated materials to Brands (“Suppliers”). Novi Users who are not Brands, Contract Manufacturers or Suppliers may be required to comply with additional requirements or terms as specified by Novi to use the Novi Connect Services.
(a) Brand Terms. This paragraph applies if you are a Brand. After successfully establishing an Account on the Novi Platform, you may provide Novi with Brand and product information. You represent and warrant that all Brand and product information that you provide is accurate, complete and not misleading in any way. In order to enable certain features of the Novi Connect Services, which may include features that connect you with other Novi Users (e.g., the “Get Connected” feature) or that provide an assessment of ingredients, you must first provide product information as may be required by Novi, which may include an ingredient list. You authorize Novi to identify you as a Brand to your Suppliers or Contract Manufacturers and to request and obtain any documentation related to your product information from your Suppliers or Contract Manufacturers.
(b) Contract Manufacturer Terms. This paragraph applies if you are a Contract Manufacturer. After successfully establishing an Account on the Novi Platform, you may provide Novi with trade material libraries and formulas (collectively, the “CM Information”). You represent and warrant that all CM Information will at all times be accurate, complete and not misleading in any way. You will ensure that you obtain the appropriate rights, licenses and consents in order to disclose, and to permit Novi to use and disclose to other Novi Users, the CM Information. After you successfully create a profile on the Novi Platform, which may contain CM Information (the “CM Profile”), Novi will make the CM Profile available to other Novi Users (except that Novi will not make such information available to other Contract Manufacturers). Novi’s use and display of the CM Profile does not mean that Novi or any Novi User endorses or recommends you, your products, or your services, and you must not state or imply that any such endorsement exists.
(c) Supplier Terms. This paragraph applies if you are a Supplier. After successfully establishing an Account on the Novi Platform, you may provide Novi with information about your products, which may include the following information: chemical identifier, chemical composition, material composition, trade material information, certifications, efficacy data, safety data, origin, marketing information, and any other information (each, a type of “Supplier Information”). You represent and warrant that all Supplier Information will at all times be accurate, complete and not misleading in any way. You are not obligated to provide all forms of Supplier Information to access the Novi Connect Services; however, your experience connecting with other Novi Users may be impacted by the amount of Supplier Information that you provide, and Novi may limit or suspend your access to the Novi Connect Services if you fail to provide requested information, or if you provide inaccurate, incomplete or misleading information. Novi will create a profile for you on the Novi Platform containing relevant Supplier Information (the “Supplier Trade Materials Profile”), which will exclude any ingredient information you identify as proprietary, unless and until you elect to make your proprietary ingredient information available to other Novi Users (except that Novi will not make such information available to other Suppliers). Novi’s use and display of the Supplier Trade Materials Profile does not mean that Novi or any Novi User endorses or recommends you, your products, or your services, and you must not state or imply that any such endorsement exists.
1.3 Establishing Accounts. In order to access the Novi Connect Services, you must create a Novi User account (an “Account”) through the Novi Platform. As part of the registration process, you may enable your Authorized Users to create separate Accounts. You are responsible for verifying that the information in each Account is accurate and up-to-date, and you are responsible for all activity occurring on Accounts registered by you or your Authorized Users. Novi may refuse registration of an Account in its sole discretion. Novi may provide onboarding materials to you and your Authorized Users at your request.
1.4 Novi Trial Usage. A Novi User may obtain free access to some or all of the Novi Connect Services features (currently called “Novi Free” but including any similar or successor free access product), and any such access will be governed by these Terms. Your use of Novi Free will commence on the date that Novi Free is activated on your Account and continue until you close your Account or upgrade to a full access Account. Novi may terminate your access to Novi Free at any time.
1.5 Modifications to the Novi Connect Services. Novi reserves the right, at its sole discretion to modify or discontinue some or all of the features offered by the Novi Platform or the Novi Connect Services, without prior notice, including the right to add additional services and fees for use of the Novi Connect Services. If you do not accept the modifications, you may close your Account.
2.1 Access to the Novi Platform. Subject to your continued compliance with the obligations of these Terms, Novi grants to you a limited, non-perpetual, non-exclusive, worldwide, non-sublicensable, non-transferable, revocable right to access the Novi Platform to use the Novi Connect Services in accordance with these Terms. You will not permit any person other than a Company employee, contractor, third party service provider or agent (each, an “Authorized User”) to use the Novi Connect Services. You are liable for each Authorized User’s compliance with these Terms and use of the Novi Connect Services. Except as permitted by these Terms, you will not transfer, lease, distribute, assign or otherwise make available the Novi Platform or Novi Connect Services to any third party. Novi reserves the right to suspend Company’s access to the Novi Platform if you, an Authorized User or an unauthorized third party uses the Novi Connect Services in an unauthorized manner or in breach of these Terms.
2.2 Restrictions on Use. You will comply with all applicable laws and regulations in your use of the Novi Connect Services. You will not, directly or indirectly:
(a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Novi Connect Services or any software, documentation or data related to the Novi Connect Services (collectively, the “Software”); (b) modify, translate, or create derivative works based on the Novi Connect Services or any Software (except to the extent expressly permitted by Novi); (c) use the Novi Connect Services in any manner that does or is likely to damage, disable, overburden or impair the Novi Connect Services, including by circumventing security-related features; or (d) access or use the Novi Connect Services in order to build a competitive service.
2.3 Security. You are responsible for maintaining the security and integrity of: (a) any equipment used to connect to, access or use the Novi Connect Services; (b) Account usernames and passwords; and (c) any information that you obtain via the Novi Platform. You will immediately notify Novi of any unauthorized use of an Account or other security breach with respect to the Novi Platform or Novi Connect Services.
2.5 Maintenance. Novi will use reasonable efforts consistent with prevailing industry standards to maintain the Novi Connect Services in a manner which minimizes errors and interruptions. The Novi Connect Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Novi or by third party service providers, or due to other causes beyond Novi’s reasonable control. Novi will use reasonable efforts to provide advance notice of any scheduled service disruption.
3.1 Novi’s Ownership Rights. Novi owns all right, title and interest, including all related Intellectual Property Rights, in and to the Novi Connect Services, the Novi Platform and all of Novi’s trademarks, service marks, copyrights, trade secrets, patents or designs, including any changes, corrections, bug fixes, enhancements, customizations, updates and other modifications. Except for the usage rights granted to you in Section 2.1, you have no right, license or authorization with respect to the Novi Platform, Novi Connect Services and related materials. All other rights in and to the Novi Platform and Novi Connect Services are expressly reserved by Novi and its licensors. As used in these Terms, “Intellectual Property Rights” mean all patents, copyrights, trademarks, trade secrets, database protection rights, and moral rights, and any other intellectual property or proprietary rights created by applicable law.
3.2 Company Information. In your use of the Novi Connect Services, you may disclose or submit to the Novi Platform data, information or material related to you, your products, your customers or your customers’ products (collectively, the “Company Information”). You are solely responsible for the accuracy, completeness and integrity of the Company Information. You will obtain all necessary rights and consents to enable Novi to use and disclose Company Information in conjunction with the Novi Connect Services as permitted by these Terms. Any Company Information that you submit through the Novi Platform may be permanently deleted upon termination of your Account.
3.3 Consent to Use Company Information. You grant to Novi a non-exclusive, worldwide, non-transferable (except as permitted by Section 12.5), non-sublicensable, royalty-free license to use, reproduce, electronically distribute, transmit, display, store and archive the Company Information for the purposes of facilitating the Novi Platform and Novi Connect Services. For clarity, the foregoing license is subject to Novi’s obligation to preserve the confidentiality of your proprietary information in accordance with Section 7.
3.4 Derivative and Diagnostic Materials. Any assessments of, reports and analyses of Company Information done by Novi will be owned by Novi, and will not be considered Company Information. Novi may collect and analyze Company Information, and other information relating to the provision, use and performance of the Novi Connect Services, Novi Platform and related systems and technologies, and may subsequently produce assessments, reports, analyses and other materials (“Derivative and Diagnostic Materials”). All Derivative and Diagnostic Materials are owned by Novi, and may be used by Novi for purposes such as the improvement and enhancement of the Novi Platform and Novi Connect Services and for other development, diagnostic and corrective purposes in connection with the Novi Platform and Novi Connect Services. Novi may disclose Derivative and Diagnostic Materials to third parties in connection with its business, provided that any such disclosed materials must be redacted so as to exclude underlying Company Information.
3.5 Limited Trademark License. Subject to your prior written approval (email will suffice), you grant Novi a royalty-free, non-exclusive, non-transferable (except as permitted by Section 12.5), non-sublicensable, limited license to use your name and logo solely for the purpose of press releases and marketing activities.
3.6 Feedback. You or your Authorized Users may make suggestions or improvements regarding any features, functionality or performance of the Novi Platform or Novi Connect Services (“Feedback”). You agree that any Feedback is gratuitous, unsolicited, without restriction and that Novi owns all the rights in the Feedback that you or your Authorized Users provide to Novi.
4.1 This Section applies only if you are a Brand or Contract Manufacturer.
4.2 Packages. You may select from one or more Novi Connect Services (each, a “Package”) through the Novi Platform. Fees for each Package (“Package Fees”) are set forth on the Novi pricing page found at: https://www.noviconnect.com/brands. During the Term, you may upgrade your selected Package by selecting a new Package through the Novi Platform, and Novi will charge you additional fees that may apply to the upgraded Package. If you have purchased a Package for a specific time period, you may not downgrade or cancel the Package within that time period without Novi’s prior written consent. Except as otherwise permitted by Novi, pre-purchased Package Fees are non-refundable.
4.3 Payment Terms. You will pay the Package Fees for your selected Package prior to using the Novi Connect Services. Unless otherwise specified by Novi, all Package Fees are charged on an annual basis. If Novi issues an invoice for the Package Fees, you will make payment by the due date indicated on the invoice. If you provide Novi with your credit card information, you authorize Novi to submit charges to your selected payment method for the Package Fees. If your selected Package is subject to recurring charges, you consent to Novi charging your selected payment method on a recurring basis without requiring your prior approval for each recurring charge. You will provide Novi with accurate and complete payment information and will notify Novi of any changes to such information. If you fail to pay Package Fees when they are due, Novi may suspend your Account until such time as the Package Fees are paid.
5.1 Marketplace Transactions. The Novi Connect Services may include functionality that enables Brands and Contract Manufacturers (collectively, “Purchasers”) to purchase materials, such as product ingredients and packaging (collectively, “Materials”), directly from Suppliers. If you are a Supplier and you choose to make your Materials available for purchase on the Novi Platform, you are making an offer to supply your Materials, at the price you specify, that any Purchaser on the Novi Platform may accept. A Purchaser will indicate acceptance of this offer by selecting the appropriate option on the Novi Platform.
5.2 Each Novi User’s Role in the Transaction. If you are a Purchaser that elects to purchase from a Supplier, you are committing to purchase the quantity of Materials at the price that is displayed to you at the time you make the election. If the Novi Platform requires you to remit the purchase price at the time of the transaction, you must do so. If you are a Supplier, and a Purchaser makes an order for your Materials, you commit to supply those Materials to the purchaser, in the quantity requested by the purchaser and meeting the quality and feature specifications that you have specified on the Novi Platform. Novi’s role is limited to facilitation of the marketplace transaction, by connecting the Purchaser and the Supplier. Novi is not responsible for, and has no liability for, any failure on the part of the Purchaser or Supplier to honor its commitments, including any failure to make payment, or defect in or misdescription of the Materials. Prices for Materials on the Novi Platform do not include shipping costs.
5.3 Manufacturing, Shipping and Delivery. The lead time for the manufacture of ordered Materials will be specified by the Supplier to the Purchaser, and the Supplier will use all reasonable efforts to ensure that the Materials are ready for shipment by the nominated date. The Novi Platform may enable the Supplier to convey lead time information to the Purchaser, including changes to any previously quoted lead times, however, Novi is not responsible for the accuracy of any lead time information or for any lateness or non-delivery of Materials. Subject to the next sentence, the Supplier and Purchaser will separately agree on the shipping arrangements that will apply to ordered Materials, including the identity of the courier, the pick-up and delivery addresses, the estimated shipping time, the time at which risk of loss passes from the Supplier to the Purchaser, the party responsible for customs duties (if applicable), and the cost of shipping. Unless the Supplier and Purchaser agree to the contrary, the default position for the shipping arrangements will be that (a) risk of loss transfers from the Supplier to the Purchaser when the shipment leaves the Supplier’s premises, and the Purchaser is responsible for arranging insurance to cover this risk; and (b) the Purchaser is responsible for the payment of all shipping costs, as well as any customs duties (if applicable). Novi may, if requested to do so by the Purchaser, help coordinate the shipment of Materials from the Supplier to the Purchaser, provided that, Novi will not take on any liability or responsibility for any of the shipping arrangements.
5.4 Transaction Funds. If a Purchaser commits to the purchase of Materials, and the Purchaser elects to remit the purchase price via the Novi Platform, Novi may hold back a proportion of the purchase price from the amount that it remits to the Supplier. Any held back amount is held by Novi on behalf of the Purchaser, and will be released to the Supplier once the Purchaser confirms that the ordered Materials have arrived and meet the applicable specifications. The Supplier has no interest in, or title to, any funds until and unless such funds are paid into the Supplier’s bank account.
5.5 Marketplace Transaction Fee. Novi may impose a transaction fee on each marketplace transaction (“Marketplace Transaction Fee”). The Marketplace Transaction Fee is payable by the Supplier, and will be made known to the Supplier, either on Novi’s pricing page located at https://www.noviconnect.com/suppliers, or at the time of the transaction. Novi may modify the applicable Marketplace Transaction Fee from time to time. Novi may deduct the Marketplace Transaction Fee from any amount due to the Supplier.
Except as expressly stated to the contrary, all Package Fees and Marketplace Transaction Fees (collectively, “Fees”) are exclusive of Taxes, and you will promptly pay or reimburse Novi for all Taxes arising out of these Terms. For purposes of these Terms, “Taxes” means any sales, use and other taxes (other than taxes on Novi income), export and import fees, customs duties and similar charges applicable to the services contemplated by these Terms that are imposed by any government or other authority. If you are legally entitled to an exemption from the payment of any Taxes, you will promptly provide Novi with legally sufficient tax exemption certificates for each taxing jurisdiction for which you claim exemption.
7.1 Confidential Information. Each Party and its Affiliates (the “Disclosing Party”) may disclose to the other Party and its Affiliates (the “Receiving Party”) information of the Disclosing Party, including without limitation, business, technical or financial information relating to the Disclosing Party’s business, whether disclosed orally or in writing (collectively, the “Confidential Information” of the Disclosing Party). In the case of Novi, Confidential Information includes, without limitation, non-public information regarding features, functionality, performance of, and all information related to the Novi Connect Services and the Novi Platform, all information displayed via the Novi Platform, including information related to product ingredients and materials, information related to other Novi Users, and any Fees and payment terms. In the case of Company, Confidential Information includes non-public Company Information, including, without limitation, ingredient information that you identify to Novi as being proprietary, except to the extent that you have enabled a feature of the Novi Connect Services that enables your proprietary ingredient information to be disclosed to other Novi Users. As used in these Terms, “Affiliate” means a company that controls, is controlled by or is under common control with a Party.
7.2 Restrictions. The Receiving Party will take reasonable precautions to protect the Disclosing Party’s Confidential Information and will not disclose Confidential Information to any third party (except to the Disclosing Party’s Affiliates), without the Disclosing Party’s prior consent. The Receiving Party also agrees not to use the Disclosing Party’s Confidential Information except in its use or provision of the Novi Connect Services or as otherwise permitted by these Terms.
7.3 Exclusions. The Disclosing Party agrees that the obligations in this Section 7 will not apply with respect to any information that the Receiving Party can demonstrate (a) is generally available to the public; (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party; (c) was rightfully disclosed to the Receiving Party by a third party without restriction; (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed by law, a regulator or court order, so long as the Receiving Party uses reasonable efforts to limit disclosure and obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate in the proceeding.
8.1 Termination. You may terminate your use of the Novi Connect Services at any time by contacting Novi at firstname.lastname@example.org. Novi may terminate your Account at any time with 30 days prior notice to you, unless you have breached these Terms or you have misused the Novi Connect Services, in which case, Novi may suspend or terminate your Account without notice.
8.2 Survival. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9.1 Novi User. You represent and warrant that:
(a) you have the right, power and ability to enter into and perform under these Terms;
(b) you will comply with all applicable laws and regulations in your use of the Novi Connect Services and Novi Platform;
(c) you have all necessary rights and consents in the Company Information to grant the rights to Novi contemplated by these Terms;
(d) Company Information that you provide through the Novi Platform does not infringe the rights of any third party, including Intellectual Property Rights; and (e) you are the type of Novi User (e.g. Brand, Contract Manufacturer or Supplier) that you have identified to Novi during the Account onboarding process, and you will promptly update Novi on any changes to your Novi User type.
9.2 Suppliers. If you are a Supplier, you also represent and warrant that all Materials supplied by you via the Novi Platform are high quality, conform to the relevant specifications, comply with all applicable laws, and all Supplier Information relating to Materials, lead times and pricing is accurate, complete and not misleading in any way.
9.3 Brands and Contract Manufacturers. If you are a Brand or Contract Manufacturer, you also represent and warrant that you are entitled to create, market and sell a product based upon any formulation that you upload to the Novi Platform, and that you will do so at all times in compliance with applicable law.
9.4 Disclaimer. Except as expressly set forth in these Terms, to the maximum extent permitted by law, the Novi Connect Services and Novi Platform are provided “as is” and Novi disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement, or implied warranties arising out of the course of dealing or the usage of trade. Novi does not warrant that the Novi Connect Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Novi Connect Services. Further, Novi does not represent or warrant that any advice or recommendation provided through the Novi Connect Services will be appropriate for Company’s business, and the Company must make its own determination of whether or not to act upon any advice or recommendation provided through the Novi Connect Services. In addition, Novi disclaims all liability associated with any connections made between Company and other Novi Users (including through the “Get Connected” feature), and Company is solely responsible for its engagement of services and procurement of Materials and other products from other Novi Users. Novi has no obligation to provide Company with access to another Novi User, nor does Novi guarantee that Company will guarantee connection to another Novi User through its use of the Novi Connect Services.
You will indemnify, defend and hold Novi harmless from and against any damages, liabilities, settlements, expenses (including, without limitation, costs and attorneys’ fees) and losses in connection with any claim, suit, demand, action or investigation brought by a third party (a “Claim”) arising out of: (a) your breach of your obligations, representations and warranties under these Terms; (b) your misuse of the Novi Platform or Novi Connect Services; (c) your or your Company Information’s infringement of any third party Intellectual Property Rights; (d) your gross negligence, willful misconduct or fraud; or (e) if you are a Supplier, your failure to deliver Materials in accordance with your contract with a Purchaser, including any defect in, or mislabeling of, any such Materials. Your indemnification obligations do not apply to the extent the Claim arises out of: (y) Novi’s material breach of these Terms; or (z) Novi’s negligence or willful misconduct.
To the maximum extent permitted by law, in no event will Novi and its officers, Affiliates, representatives, employees and contractors be liable with respect to any subject matter of these Terms, the Novi Connect Services or the Novi Platform, including any error in or interruption of use of the Novi Platform or Novi Connect Services or loss or inaccuracy or corruption of data, under any contract, negligence, strict liability or other theory: (a) for any indirect, exemplary, incidental, special or consequential damages; (b) for any lost profits, revenues or business opportunities; or (c) for any direct damages exceeding the Fees paid by Company to Novi during the three month period preceding the claim, in each case, whether or not Novi has been advised of the possibility of such damages.
12.1 Governing Law. These Terms are governed by the laws of California without regard to any conflict of law principles.
11.2 Dispute Resolution; Binding Arbitration. The Parties agree that any unresolved controversy or claim arising out of or relating to these Terms (excluding claims for injunctive or other equitable relief) will be submitted to binding arbitration under the auspices of JAMS in Larkspur, California, in accordance with its rules then in effect. In any such action or proceeding, the prevailing Party will be entitled to recover costs and attorneys’ fees. The decision of the arbitrator will be final, binding, and conclusive upon the Parties. Each Party irrevocably waives any right to a trial by jury that it might have under any applicable law, rule or regulation. This dispute resolution provision shall be governed by the Federal Arbitration Act.
12.3 Independent Contractors. Novi and Company are independent contractors of each other and these Terms will not be interpreted or construed to create an association, joint venture, partnership, or franchise between Novi and Company, or to impose any partnership obligation or similar liability upon either Novi or Company.
12.4 No Exclusivity. Except as expressly stated to the contrary, these terms are non-exclusive and nothing limits either Party from entering into any similar agreement with a third party.
12.5 Assignment. You may not assign, transfer or sublicense your obligations under these Terms without Novi’s prior written consent. Novi may assign, transfer or sublicense any of its rights and obligations under these Terms without Company’s consent. Any assignment in violation of this section will be null and void.
12.6 Severability; No Waiver. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the extent necessary so that these Terms otherwise remain in full force and effect. The failure of either Party to enforce any provision of these Terms will not constitute a waiver of such provision unless agreed to by the parties in writing.
12.7 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the Party invoking this provision, including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes (each, a “Force Majeure Event”) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that, the affected Party
(a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event;
(b) uses commercially reasonable efforts to address and mitigate the cause and effect of the Force Majeure Event;
(c) provides periodic notice of relevant developments; and
(d) provides prompt notice of the end of the Force Majeure Event.
12.8 Notices. All notices from Company to Novi may be made via email to email@example.com and all notices from Novi to Company may be made via email to the email address you specify in your Account.
12.9 Entire Agreement. These Terms constitute the complete and exclusive statement of the mutual understanding of the Parties and supersede all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms.
12.10 Modifications. Novi reserves the right, at its sole discretion to modify or discontinue, temporarily or permanently, the Novi Platform or the Novi Connect Services, or to modify these Terms at any time without prior notice, including adding fees. If there are material modifications, Novi will notify you in advance of the effective date of those material modifications. If you do not accept the modifications, you may terminate your use of the Novi Connect Services by closing your Account.
12.11 Support. You may initiate a support ticket by emailing firstname.lastname@example.org.