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Noction Flow Analyzer Terms of Service

Noction Flow Analyzer Terms of Service
July, 2019

THE NOCTION FLOW ANALYZER LICENSE IS PROVIDED ONLY ON THE CONDITION THAT USER AGREES TO THE TERMS AND CONDITIONS IN THIS END USER LICENSE AGREEMENT AND THE MATERIALS REFERENCED HEREIN (“AGREEMENT”) BETWEEN USER AND NOCTION, INC. BY ACCEPTING THIS AGREEMENT OR BY USING THE SERVICE, USER ACKNOWLEDGES THAT USER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT.



1. SCOPE

This Agreement applies to Noction, Inc. Noction Flow Analyzer software and service offered to legal entities and individuals further referred to as “User”, using Noction Flow Analyzer for personal or commercial purposes.

2. BINDING CONTRACT

This Noction Flow Analyzer End User License Agreement (“Agreement”) is a binding contract between Noction, Inc. and the User. An individual, employee or other agents, including a reseller or contractor of a User (“Representative”) which initiates the use of Noction Flow Analyzer, must accept this Agreement before the Noction Flow Analyzer may be initiated.

3. AGREEMENT ACCEPTANCE

This Agreement will be accepted and a contract formed when a User executes an order form that references this agreement or by downloading, installing and/or utilizing Noction Flow Analyzer.

4. AGREEMENT REJECTION

If a Representative is not authorized to accept this Agreement on behalf of the User or the User does not agree with any terms or conditions of the Agreement, then such may not use Noction Flow Analyzer.

5. OWNERSHIP

The Noction Flow Analyzer Software and Service are the property of Noction, Inc., and are protected by copyright, trade secret and the U.S. or other patent laws, and international treaty provisions. By accepting this Agreement, You acquire the limited rights to the use of Noction Flow Analyzer.

6. USE LICENSE

Noction Flow Analyzer use license is subject to User’s compliance with the terms and conditions of this Agreement and payment of the applicable Noction Flow Analyzer fees.

7. LICENSE RESTRICTIONS

Under this Agreement, User may not:

(i) transfer or sublicense Noction Flow Analyzer to another User;

(ii) rent, lease, loan, auction, or resell Noction Flow Analyzer;

(iii) modify, adapt, translate, or create derivative works of Noction Flow Analyzer;

(iv) reverse engineer, decompile, or disassemble the software related to Noction Flow Analyzer, in whole or in part, or otherwise attempt to reconstruct or discover the source or object code or underlying ideas, algorithms, file formats, programming or interoperability interfaces for any reason other than the security audit (or in any instance where the law permits any such action, User agrees to provide Noction, Inc. with at least 90 days’ advance written notice of the User’s belief that such action is warranted and permitted and provide Noction, Inc. with an opportunity to evaluate if the law’s requirements necessitate such action);

(v) use the Noction Flow Analyzer to provide services to third parties or allow use or access to Noction Flow Analyzer by any third party other than contractors or consultants acting on User’s behalf;

(vi) use Noction Flow Analyzer other than as specifically designed,

(vii) use Noction Flow Analyzer in a region other than the region for which Noction Flow Analyzer was authorized to be used by Noction, Inc.; or

(viii) authorize others to do any of the foregoing. Noction, Inc. reserves the right to take reasonable steps, including the suspension of any Services, to prevent unauthorized access to, or use of Noction Flow Analyzer.

8. UPDATES AND TECHNICAL SUPPORT

Current use license entitles Users to minor Noction Flow Analyzer updates, as applicable, and web or e-mail based technical support from Noction, Inc. or an authorized reseller. To benefit from updates and technical support, Users must be Noction Flow Analyzer active paying customers at the time an update is issued or technical support requested. Noction, Inc. reserves the right to offer modified versions of Noction Flow Analyzer, including subsequent versions that contain new features or functionality, as new products or services for additional consideration. Noction, Inc. reserves the right to change, update or modify the terms and conditions and to impose rules, policies, terms or conditions on the use of the Noction Flow Analyzer, including service fees. Such modified terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Noction Flow Analyzer following will be deemed to constitute acceptance of any and all such Additional Terms.

9. CONSENT TO ELECTRONIC COMMUNICATIONS

Noction, Inc. may send You required legal notices and other communications about the Software and Service, including Updates, upgrades, special offers, and pricing or other similar information, customer surveys or other requests for feedback (“Communications”). Noction, Inc. may send Communications via in-product notices or email to registered email addresses of named contacts or will post Communications on its Websites. By accepting this Agreement, You consent to receive all Communications through these electronic means and acknowledge and demonstrate that You can access Communications on Websites.

10. LIMITATION OF LIABILITY

Noction takes no responsibility and assumes no liability for use of Noction Flow Analyzer.

To the maximum extent permitted by law, Noction, Inc. shall not be liable for any direct, indirect, incidental, consequential, punitive, or special damages, loss of profits, data or revenues, or other losses, resulting from any of the following:

– your use of Noction Flow Analyzer

– your inability to access or use Noction Flow Analyzer

– unauthorized access or use of Noction Flow Analyzer, including unauthorized access or use of your transactions, transmissions or content

– access or use of Noction Flow Analyzer by any third party, including offensive, defamatory or illegal actions

11. CONFIDENTIALITY

(a) Both parties, for their mutual benefit, desire to disclose or have disclosed to the other, certain information not generally known to the public such as certain specifications, software, data, or other business and/or technical information (hereinafter collectively referred to as “Information”) which is proprietary to the disclosing party or its affiliated companies or suppliers. The receiving party shall hold such Information in confidence, shall reproduce or copy such Information only to the extent necessary for its authorized use, shall restrict disclosure of such Information to its employees who have a need to know, shall advise such employees of the obligations assumed under this section, and shall not disclose such Information to any third party without the prior written approval of the other party and a confidentiality agreement at least as restrictive as this Article.

(b) These restrictions on the use of disclosure of information shall not apply to any Information:

(1) that is independently developed by the receiving party or its affiliated companies or lawfully received free of restriction from another source having the right so to furnish such Information; or

(2) that is or becomes publicly available by means other than unauthorized disclosure; or

(3) that, at the time of disclosure to the receiving party, was known to such party or its affiliated companies free of restriction as evidenced by documentation in such party’s possession; or

(4) that the disclosing party agrees in writing is free of restrictions stated in this Agreement.

(c) No license to a party, under any trademark, patent, copyright, mask work protection right or any other intellectual property right, is either granted or implied by the conveying of Information to such party. None of the Information which may be disclosed or exchanged by the parties shall constitute any representation, warranty, assurance, guarantee or inducement by either party to the other of any kind, and, in particular, with respect to the non infringement of trademarks, patents, copyrights, mask protection rights or any other intellectual property rights, or other rights of third persons or of either party.

(d) All Information shall remain the property of the transmitting party and shall be returned upon written request or upon the receiving party’s determination that it no longer has a need for such information. Upon expiration or termination of this Agreement, each party shall destroy, all Information supplied by the transmitting party, and all copies of such Information.

(e) Each party agrees that it will not, without the prior written consent of the other, transmit, directly or indirectly, the Information received from the other hereunder or any portion thereof.

(f) Each party agrees that all of its obligations undertaken in this Section 5 as a receiving party of Information shall survive and continue for two years after any expiration or termination of this Agreement.

(g) PROVIDER may use, with CUSTOMER consent, information about CUSTOMER SERVICE use, SERVICE performance rates, graphs and tables, statistics and reports, logos and other information related to the SERVICE usage on its website or any other promo materials.

12. ASSIGNMENT

Neither party may assign or transfer or attempt to assign or transfer any part or all of this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other party, except that PROVIDER may assign this Agreement to its parent, any subsidiary or any affiliate and CUSTOMER may assign this Agreement to a third party that is a successor in interest by merger or acquisition.

13. FORCE MAJEURE

Neither party nor its affiliates, subsidiaries, subcontractors, parent corporation or any of its parent’s affiliates or subsidiaries shall be liable in any way for delay, failure in performance, loss or damage due to any of the following force majeure conditions: fire, strike, embargo, explosion, power blackout, earthquake, flood, war, labor disputes, civil or military authority, acts of God or the public enemy, inability to secure raw materials, acts or omissions of other carriers or suppliers, or other causes beyond its reasonable control, whether or not similar to the foregoing.

14. CHOICE OF LAW

The laws of the State of California, USA shall govern the provisions of this Agreement without reference to its conflict of laws provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each party hereby consents and submits to the exclusive jurisdiction of the state and federal courts sitting in Santa Clara County, California, USA and hereby agrees that venue of any dispute which arises hereunder is proper, appropriate, and acceptable in these state and federal courts. Notwithstanding the above, the prevailing party to any legal action shall be entitled to reimbursement of all reasonable costs and expenses (including reasonable attorneys’ fees) incurred to defend such claim.

15. ENTIRE AGREEMENT

The terms and conditions of this Agreement shall constitute the entire agreement and understanding of the parties with respect to the subject matter hereof and shall supersede all prior, written or oral agreements, proposals or understandings in regards of the Noction Flow Analyzer. This Agreement shall not be modified, altered, changed or amended in any respect by the User, except by a writing signed by an authorized Noction, Inc. representative.

16. TERMINATION

This Agreement is effective until terminated. User may terminate it at any time by stopping to use Noction Flow Analyzer service. In addition to any other available remedy under applicable law, Noction, Inc. may terminate this Agreement if a User commits a material breach of the Agreement or if a User fails to cure any breach within thirty (30) days of receipt of notice from Noction, Inc. Section 11 survives the termination of this Agreement.

17. SECTION HEADINGS

The section headings in this Agreement are inserted for convenience only and are not intended to affect meaning or interpretation.