Last Updated: December 8, 2020
NobleAI, Inc. (“Noble,” “we,” or “us”) offers various services and other offerings (“Offerings”) through its HF Flow platform (“Platform”).
These Terms of Service form a legally binding agreement (“Agreement”) between Noble and you or, if you are accessing the Platform or using any Offering on behalf of another organization or entity, that Entity (in either case, “you” or “your”).
THE AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE PLATFORM AND OFFERINGS. PLEASE CAREFULLY READ THIS AGREEMENT. YOUR ACCESS TO AND USE OF THE PLATFORM AND OFFERINGS ARE CONDITIONED UPON YOUR CONSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, NOBLE IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO THE PLATFORM OR ANY OFFERINGS. BY ACCEPTING THE TERMS OF THIS AGREEMENT, OR BY ACCESSING OR USING ANY OF THE OFFERINGS, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. EFFECTIVE DATE. This Agreement is are effective upon the date you first agree to this Agreement by clicking “I agree” to the terms of this Agreement or by accessing or using any Offering (the “Effective Date”). By accessing or using any Offering, or by clicking “I agree” to this Agreement, you agree to enter into and be bound by this Agreement.
2. TERM. This Agreement is effective as of the Effective Date and continues until terminated as specified herein.
3. OFFERINGS. The Offerings you may access through the Platform are as specified in each order you enter into under this Agreement (“Order”). All Orders are subject to acceptance by Noble and Noble will have no obligation or responsibility with respect to any Order until accepted by Noble. Acceptance of any Order is in Noble’s sole discretion. Once accepted by Noble, each Order will be governed by and constitute a part of this Agreement. Only Orders accepted by Noble will constitute a part of this Agreement and any terms contained in any other document that you may provide to Noble, including any other terms provided in connection with any Order, are void, of no force or effect, and will not be enforceable against or otherwise bind Noble. If there is a conflict between these terms and the terms of any Order, these terms will control unless the Order expressly indicates that it is intended to supersede the provisions of these terms.
4. ACCESS. Subject to your compliance with this Agreement, Noble will provide you with a limited, revocable, non-sublicensable, non-exclusive right to access and use the Offerings solely for your on business purposes as specified by this Agreement.
5. ACCOUNT. In order to access the Offerings, you may be required to establish an account on the Platform (your “Account”). Your Account will establish you as a User on the Platform. Approval of your Account will be at the sole discretion of Noble. Each Account is personal in nature and you may establish an Account only for your own use. You will only access the Offerings through your own Account. You may not distribute or provide your Account or the username or password for your Account to a third party or allow a third party to access your Account. When creating your Account, you must provide accurate, truthful, and complete information. You agree to maintain and promptly update your Account information to keep it accurate, truthful, and complete. You may not: (1) select or use a username of another person or with the intent to impersonate that person; and (2) use a username that Noble, in its sole discretion, deems offensive. You are solely responsible for safeguarding the username and password for your Account and for all use of the Offerings that occurs through your Account, including any liabilities and damages incurred through the use of your Account. We cannot and will not be liable for any loss or damage arising from any unauthorized use of your Account, but you will be liable for any losses sustained by Noble or others due to such unauthorized use. You must notify Noble immediately at email@example.com of any breach of security or unauthorized use of your Account.
6. CONDITIONS OF USE. You agree that the Platform and all Offerings, including all software, hardware, and other technology used by or on behalf of Noble to provide the Platform and Offerings (collectively, “Technology”) constitute the valuable Intellectual Property Rights (as defined below) of Noble and its licensors. As an express condition on the rights granted herein, you will not, and will not permit or authorize any third party to: (1) use the Offerings in any unlawful or illegal manner or for any unlawful, misleading, malicious, or discriminatory purpose; (2) use the Offerings in a manner that infringes, misappropriates, or otherwise violates the Intellectual Property Rights or other rights of Noble or any third party; (3) take or permit any action that could damage, disable, overburden, or impair the Offerings or the Technology; (4) use the Offerings to transmit unsolicited marketing communications, promotions or advertisements, or otherwise send “spam;” (5) upload or expose the Offerings or Technology to any viruses or malicious code; (6) modify, adapt, alter, translate, or create derivative works based on any portion of the Offerings or Technology; (7) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Offerings or Technology; (8) circumvent or overcome (or attempt to circumvent or overcome) any security or technological protection measures, including those intended to restrict access to any portion of the Offerings or Technology; (9) interfere with or disrupt in any manner the integrity, performance, operation, or hosting of the Offerings or Technology, or attempt to gain unauthorized access to any portion thereof; (10) use automated scripts to collect information from or otherwise interact with the Offerings or Technology without our prior permission; (11) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Offerings or Technology; or (12) permit or allow any unauthorized third party to access or use of the Offerings or the Technology.
7. FEES AND PAYMENT. You agree to pay Noble all fees specified in connection with each Order and any fees You otherwise incur through your Account or any Offering (“Fees”). All Fees will be billed as indicated in each Order or through the Platform at the time You incur the Fee. If an applicable Order does not specify any applicable billing terms, the initial payment of Fees specified under that Order for each period during this Agreement will be due and payable by you in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If you have specified credit card or other payment card, or direct withdrawal from a bank account, as an applicable payment mechanism under this Agreement, You grant Noble the right to charge the credit card or other payment card or the bank account provided to Noble for all Fees incurred under this Agreement. All Fees are payable in U.S. dollars. All Fees are nonrefundable once paid to Noble. Noble may change any portion of the Fees by posting the changes to the Platform or otherwise notifying You of the change, such changes to take effect at the beginning of the next period of this Agreement. You are responsible for all payment of, any applicable taxes, fees, value-added surcharges, import and export duties, and other assessments or duties, levied or assessed against you or Noble by any governmental entity in connection with the Fees charged to you or your access to or use of the Platform or any Offerings.
8. LIMITED FREE ACCESS. Noble may offer you limited access to certain portions of the Platform or Offerings without Fees (“Free Access”). All Free Access is subject to the terms of this Agreement and any applicable limits on such Free Access established by Noble. You acknowledge and agree that your use of the Platform or any Offerings in excess of any such limits is subject to all applicable Fees. You agree to pay all such Fees as specified in this Agreement. Noble may change or revoke Free Access to the Platform or any Offering at any time with or without notice to You. ALL FREE ACCESS TO THE PLATFORM AND EACH OFFERING IS PROVIDED AS-IS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. NOBLE WILL NOT BE LIABLE FOR ANY USE OF THE PLATFORM OR ANY OFFERING THROUGH FREE ACCESS OR ANY MODIFICATION OR CANCELLATION OF ANY FREE ACCESS TO THE PLATFORM OR ANY OFFERING.
9. NOBLE UNITS. As specified on an applicable Order, you may be provided with credits for use on the Platform in obtaining accessing certain of the Offerings (“Noble Units” or “NUs”). Noble Units are credits for use solely on the Platform. Noble Units allow us to track and limit your access to certain Offerings on the Platform. Noble Units are tracked through your Account. When an Offering states that it requires a specified number of Noble Units to use, your Account will be debited by that number of Noble Units when you elect to use the Offering. If you do not have a sufficient number of Noble Units to make use of an Offering, additional Noble Units may be available for purchase through your Account. Noble reserves the right to modify the number of Noble Units required to access any Offering at any time by providing notice through the Platform. Noble Units have no value other than on the Platform. Noble Units are not legal tender and have no independent monetary value. Noble Units are not refundable or exchangeable and cannot be converted into actual currency. Noble Units are available for your use only during the term of this Agreement. Upon any termination or non-renewal of this Agreement, Noble may cancel and revoke all Noble Units from your Account.
10. YOUR INFORMATION AND RESULTS.
10.1 Rights. As between Noble and you, you retain all right, title, and interest in and to the data, information, and other content you submit to the Offerings or otherwise make available through the Offerings (“Your Information”) and the results generated through the processing and analysis of Your Information through each Offering (“Results”), excluding any portions of the Platform, Offerings, and Technology. You grant to Noble all rights in Your Information and the Results as necessary or required for Noble access, use, and process Your Information and the Results: (a) for purposes of providing the Offerings and enabling the operation of the Platform; (b) to perform its obligations and exercise and enforce its rights under this Agreement; and (c) as otherwise required by applicable law. You will obtain and maintain all consents, permissions, and rights necessary for: (i) you to provide, disclose, and otherwise make available Your Information through the Offerings; (ii) generate any Results based on Your Information; and (iii) all use and processing of Your Information and the Results by Noble as permitted or required by this Agreement.
10.2 Responsibilities. You are solely responsible for Your Information and the Results, including the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Information and the Results. Noble is not responsible or liable for any deletion or loss of any of Your Information and the Results. Noble is under no obligation to review any of Your Information and the Results for accuracy or potential liability. You assume all risks associated with the use of Your Information and the Results in connection with any Offerings, including any reliance on Your Information and the Results or the accuracy or completeness thereof.
10.3 No Personal Information. You must remove (or otherwise obscure) any Personal Information from Your Information before uploading or submitting Your Information to any Offering and for otherwise complying with all applicable laws and policies with respect to Your Information you upload or submit to the Platform or any Offering. For the purposes of this Agreement, “Personal Information” means all personal information, personally identifiable information, personal data, protected health information, sensitive information, or the like as defined under applicable law. You will not provide through any Offering, or otherwise make available to Noble, any Personal Information, except as requested during the Account registration process.
10.4 Additional Conditions. You will ensure that none of Your Information or the use or processing of Your Information through the Offerings, or the Results or the generation of the Results through the Offerings, constitutes an infringement or misappropriation of the Intellectual Property Rights or other rights of any third party or violates or causes a violation of any applicable laws. Noble may remove any of Your Information or the Results from the Offerings at any time, with or without notice, if we reasonably believe that either violates this Agreement or our other policies to prevent damage, injury, or harm to Noble, the Offerings, or any other third party.
11. OWNERSHIP. All right, title, and interest in and to the Platform, Offerings, and Technology, and all modifications, configurations, improvements, or enhancements thereof or thereto, and all Intellectual Property Rights therein and relating thereto, are and will remain the exclusive property of Noble and its licensors. The names and logos of Noble and those of its providers and licensors are trademarks of Noble or its third-party providers and licensors, as applicable, and nothing in this Agreement gives you a right to use the Noble name, or any of the Noble trademarks, logos, domain names, and other distinctive brand features. Except as expressly stated in this Agreement, Noble grants you no rights or licenses (whether by implication, estoppel, or otherwise) and all rights are expressly reserved by Noble. For the purposes of this Agreement, “Intellectual Property Rights” means any and all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights protecting data and databases, and contract rights.
12. FEEDBACK. Any feedback, comments, or suggestions relating to the use, operation, performance, functionality, or features of the Platform or Offerings (“Feedback”) you may provide to Noble is entirely voluntary. Noble will be free to use any Feedback as we see fit for any purpose and without any without notice, payment, or other obligation to you. All use of any Feedback will be at Noble’ sole discretion.
13. MONITORING. Nothing in this Agreement obligates Noble to monitor the Platform or any Offerings. However, Noble reserves the right to monitor the Platform and Offerings for any purpose, including to confirm Your compliance with this Agreement, any applicable usage limits, or applicable law. The Platform and Offerings may contain functionality for limiting or disabling Your access to or use of Offerings if your use exceeds any applicable limits or violates this Agreement or applicable law. You will take all necessary precautions to avoid any loss of data or other damage or liability that may occur due to any disablement of or limitation on your access to or use of the Platform or any Offering. Noble may inform appropriate law enforcement authorities of any activity on or through the Offerings at our sole discretion.
14. THIRD PARTY OFFERINGS. Noble is not responsible for any third party websites, products, services, and other offerings (“Third Party Offerings”) accessible through the Platform or any Offering. Third Party Offerings may be subject to separate terms and conditions. Any such separate terms and conditions are solely between you and the third party providing the Third Party Offering and you are solely responsible for compliance with those terms and conditions. You are solely responsible for and bear all risks associated with all access and use of all such Third Party Offerings and will obtain all rights, permissions, and consents necessary to access and use any Third Party Offerings.
15. YOUR WARRANTY. You represent and warrant to Noble that: (1) you have the legal right and authority to enter into this Agreement and that this Agreement form a binding legal obligation on you; and (2) you have and will maintain all rights necessary to perform your obligations under this Agreement and to grant all rights and licenses included in this Agreement.
16. COMPLIANCE. You acknowledge that the Offerings are not specifically designed to facilitate compliance with any specific law, rule, or regulation. Your use of the Offerings in compliance with any specific law, rule, or regulation applicable to you is your sole responsibility. Noble is not responsible for enabling your compliance with any law, rule, or regulation or for your failure to comply. You represent, warrant, and covenant to Noble that your use of and access to the Platform and Offerings will comply with all applicable laws, rules, and regulations and will not cause Noble itself to violate any applicable laws, rules, and regulations.
17. PERFORMANCE. Except in the case of any Free Access, Noble represents and warrants to you that during the term of this Agreement Noble will use commercially reasonable efforts to maintain and verify that the Offerings operate in accordance with this Agreement and any applicable tier of service in any accepted Order under this Agreement. Noble’s sole obligation and your sole and exclusive remedy in the event of any failure by Noble to comply with the foregoing representation and warranty will be for Noble to, at Noble’s option, re-perform the affected Offering or refund to you the Fees you have actually paid for the affected Offering during the month in which the failure occurred.
18. DISCLAIMER. EXCEPT FOR ANY APPLICABLE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, AND DURING ALL PERIODS OF FREE ACCESS, THE OFFERINGS ARE PROVIDED BY NOBLE AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND AND NOBLE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND COVENANTS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THIS AGREEMENT, THE OFFERINGS, OR ANY TECHNOLOGY, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NOBLE OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY NOBLE AS AN AMENDMENT TO THIS AGREEMENT.
19. INDEMNITY. You agree to defend, indemnify and hold harmless Noble (and its officers, directors, employees, contractors, agents, and licensors) from and against any and all damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) resulting from or arising out of or on account of (1) your use of or access to the Offerings, except due to the negligence of Noble, (2) any of Your Information, the Results, or any access thereto or use thereof by Noble as permitted under this Agreement, (3) your breach of this Agreement, or (4) your negligent act or omission or your willful misconduct.
20. LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL NOBLE BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, DAMAGES OR OTHER LOSSES OF ANY KIND, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF THE USE OR INABILITY TO USE OR ACCESS ANY PART OF THE PLATFORM OR OFFERINGS, INCLUDING ANY LOST, CORRUPTED OR ALTERED DATA, INFORMATION, OR CONTENT, LOSS OF USE OF DATA, INFORMATION, OR CONTENT, RECOVERY OF DATA, INFORMATION, OR CONTENT, OR LOSS OR INTERRUPTION OF BUSINESS OR PROFITS, EVEN IF NOBLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE.
IF DESPITE THE FOREGOING, NOBLE IS FOUND TO HAVE LIABILITY UNDER THIS AGREEMENT, IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF NOBLE RELATING TO THIS AGREEMENT, THE PLATFORM OR ANY OFFERINGS EXCEED THE AMOUNTS YOU HAVE PAID NOBLE UNDER THIS AGREEMENT IN THE 3 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN STATES WHERE A LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, NOBLE’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
21.1 Termination. You may cease using the Offerings at any time. If you desire for your Account to be deactivated, you may contact Noble as indicated on the Platform. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to remedy such breach within 30 days after receiving notice of the breach from the non-breaching party. Either party may also immediately terminate this Agreement upon written notice if the other party becomes insolvent or if any petition is filed or proceedings commenced by or against that party relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors which has not been dismissed within 90 days of the initiation of such proceedings. In addition, Noble may suspend your access to the Platform and Offerings following any actual or suspected breach of this Agreement or as deemed reasonably necessary by Noble to prevent damage, injury, or harm to Noble, the Platform or Offerings, or third party.
21.2 Effect. Upon any termination: (a) all rights granted to you under this Agreement will end; (b) Noble may delete or deactivate your Account and cease providing you with access to the Offerings; (c) you will cease all use of and access to the Platform and all Offerings; (d) all unpaid amounts due for the remainder of the then-current period (initial or renewal) of the Agreement will become immediately due and payable; (e) Recipient will return to Discloser or (if so notified by Discloser) destroy, all copies of any Confidential Information in Recipient’s possession or control; and (f) Noble will be under no further obligation to retain any of Your Information or any Results and may remove and discard any of Your Information and the Results from the Offerings. You agree not to attempt further use of the Platform or any Offering upon termination. Upon the request of Noble, you will certify in writing to your compliance with the terms of this Section. The relevant portions of any Sections which by their nature survive termination of this Agreement will survive the termination of this Agreement for any reason.
22.1 “Confidential Information” means any information disclosed by one party (“Discloser”) to the other (“Recipient”) pursuant to this Agreement or any applicable Order, which is in writing or tangible form, orally, or by inspection of tangible objects, and if in writing or tangible form is designated as “Confidential,” “Proprietary” or some similar designation at the time of disclosure, or if disclosed orally, shall be identified as “confidential,” “proprietary,” or similar designation at the initial oral disclosure and confirmed in writing as such within 30 days after such disclosure. Except as provided herein, Confidential Information shall remain the property of the Discloser. For the purposes of this Agreement, Your Information and the Results are Your Confidential Information and the Platform, Offerings, and Technology are the Confidential Information for Noble.
22.2 Exceptions. The confidentiality obligations in this Section shall not apply with respect to any of the Discloser’s Confidential information which: (a) was generally available to the public at the time it was disclosed or becomes generally available through no fault, act, or omission of Recipient; (b) was known to Recipient, without restriction, at the time of disclosure as shown by the files of Recipient in existence at the time of disclosure; (c) was independently developed by Recipient without access to or the use or benefit of Discloser’s Confidential Information; or (d) became known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not in violation of Discloser’s rights. For the purpose of this section, any information that is specific shall not be deemed to be within any of the foregoing exceptions merely because it is embraced by more general information that falls within any one or more of the foregoing exceptions. In addition, any combination of features shall not be deemed to be within any of the foregoing exceptions merely because individual features fall within any one or more of the foregoing exceptions, but only if the combination itself falls within any one of the foregoing exceptions.
22.3 Restrictions on Use and Disclosure. Recipient shall only use Discloser’s Confidential Information for the purpose, performance, and enforcement of this Agreement, and upon termination or expiration of this Agreement, Recipient will stop using and will make no further use of any Confidential Information of Discloser. Recipient agrees to restrict access to Discloser’s Confidential Information to only those employees or contractors of Recipient who have a strict need to know such Confidential Information as required hereunder and who have agreed in writing to be bound by confidentiality, non-disclosure, and limited use obligations no less protective than those contained in this Agreement. Recipient will exercise at least the same degree of care to prevent unauthorized use or disclosure of Discloser’s Confidential Information to others as it takes to preserve and safeguard its own information of like importance, but in no event less than a reasonable degree of care.
22.4 Compelled Disclosure. If Recipient is compelled by a court or other competent authority or applicable law to disclose Confidential Information of Discloser, it shall give Discloser prompt written notice of such requirement (if permitted by applicable law) and shall offer to Discloser its reasonable cooperation at Discloser’s expense so that Discloser may take steps to oppose such disclosure or obtain a protective order. Recipient shall not be in breach of its obligations in Section if it makes any legally compelled disclosure provided that Recipient meets the foregoing notice and cooperation requirements, and Recipient strictly limits the content of such disclosure to that portion of Confidential Information that it is, in the opinion of Recipient’s legal counsel, strictly compelled to disclose.
23. EQUITABLE RELIEF. You agree that due to the unique nature of the Offerings there can be no adequate remedy at law for any breach of your obligations hereunder, that any such breach may allow you or third parties to unfairly compete with Noble resulting in irreparable harm to Noble, and therefore, that upon any such breach of this Agreement or threat thereof, you will not oppose any attempt by Noble to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable harm.
24. FORCE MAJEURE. Noble will not be responsible for failure or delay in the performance of any obligation under this Agreement to the extent such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, quarantine, pandemic, labor disputes, fire or other loss of facilities, accident, or any other event beyond its control. Noble will use commercially reasonable efforts to notify you of any such event.
25. EXPORT. The Offerings are subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required.
26. CHOICE OF LAW. This Agreement will be governed by and construed in accordance with the laws of the State of California (USA), without regard to any applicable principles of conflicts of laws. Subject to the Section titled “Arbitration,” any legal action, suit, or proceeding arising out of or relating to this Agreement or the breach thereof may be instituted by either party solely in the federal or state courts located in San Francisco, California (USA). Each party hereby submits to the personal jurisdiction of such court and waives any right each might otherwise have to claim lack of personal jurisdiction or forum non conveniens.
27. ARBITRATION. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the validity, binding effect, interpretation, performance, breach or termination of this Agreement (each, a “Dispute”) through good faith discussion between the parties. Any Dispute that cannot be resolved between the parties shall be resolved through binding arbitration under this Section. Either party may refer a Dispute to binding arbitration. Any such arbitration will be conducted in accordance with the rules of the International Chamber of Commerce (the “ICC Rules”) and will be conducted in San Francisco, California (USA). The arbitration will be presided over by a single arbitrator. All arbitrators will be selected by the parties in accordance with ICC Rules. All arbitrator candidates must be neutral as to each party and will have substantial experience with international commercial contracts. Each party will bear its own expenses and will share equally in fees of the arbitrator(s). The parties will provide each other with all requested documents and records related to the dispute in a manner that will minimize the expense and inconvenience of both parties. Discovery will not include depositions or interrogatories, except as the arbitrator(s) may expressly allow upon a showing of need. The parties and the arbitrator(s) will be guided in resolving discovery disputes by the Federal Rules of Civil Procedure. If disputes arise concerning discovery requests, the arbitrator(s) will have sole and complete discretion to resolve such disputes. The parties agree that time of the essence principles will guide the hearing and that the arbitrator(s) will have the right and authority to issue monetary sanctions in the event of unreasonable delay. The arbitrator(s) will deliver a written learned opinion setting forth findings of fact and the rationale for the award within 30 days following conclusion of the hearing. The award of the arbitrator(s), which may include legal and equitable relief, but which may not include punitive damages, will be final and binding upon the parties, and judgment may be entered upon it in accordance with applicable law in any court of competent jurisdiction. In addition the arbitrator(s) will have the discretion to award the prevailing party all or part of its attorneys’ fees and costs, including fees associated with arbitrator(s), if the arbitrator(s) determine(s) that the positions taken by the other party on material issues of the dispute were without substantial foundation. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. This Agreement will control if there is a conflict between the terms of this Agreement and the ICC Rules.
28. NOTICES. Unless otherwise specified in this Agreement, you will provide any notices required or allowed under this Agreement to Noble by postal mail to the address for Noble listed on the Platform. Noble may provide you with any notices required or allowed under this Agreement by sending you an email at any email address you provide to Noble in connection with your Account, provided that in the case of any notice applicable both to you and other users of the Platform, Noble may instead provide such notice by posting it on the Platform. Notices provided to Noble will be deemed given when actually received by Noble. Notice provided to you will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
29.1 To the Platform and Offerings. Noble reserves the right to modify or release updates to or new versions of the Platform or any Offering at any time by providing notice of the modifications or by releasing such updates or new versions. Following release of any such update or new version of the Platform or any Offering, you will use the most current version of the Platform or any Offering after release by Noble. Noble may suspend or discontinue (permanently or temporarily) any aspect of the Platform or any Offering, at any time in its sole discretion.
29.2 To this Agreement. Noble may, in its sole discretion, modify this Agreement from time to time. We will use commercially reasonable efforts to provide notice of any material modifications to this Agreement. Notice may be provided to you directly or to all users through the Platform. Unless we make a change for legal or administrative reasons, any modification will be effective 10 days following posting of the modified version of this Agreement to the Platform. Your continued access to the Offerings following that date constitutes your acceptance of, and agreement to be bound by, those modified terms of the Agreement.
30. GENERAL. This Agreement (including each Order) will exclusively govern your access to and use of the Platform and Offerings and is the complete and exclusive understanding and agreement between the parties. Unless otherwise agreed in writing, this Agreement supersede any oral or written proposal, agreement or other communication between the parties, regarding your access to and use of the Platform and Offerings. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. The preprinted terms of a purchase order or any other similar document will not apply to or modify this Agreement. All waivers by Noble under this Agreement must be in writing or later acknowledged by Noble in writing. The failure of Noble to enforce any right or provision of this Agreement will not be deemed to be a waiver of such right or provision. If any provision of this Agreement shall be found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed removed to the extent necessary to comply with applicable Law, replaced by a provision that closely approximates the original intent and economic effect of the original to the extent consistent with applicable law, and the remaining provision will remain in full force and effect. In any dispute relating to this Agreement, the prevailing party will be entitled to recover its reasonable expenses and attorneys’ fees from the other party. You may not assign or otherwise transfer this Agreement or any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without obtaining prior written consent of Noble. Any attempted assignment or transfer in violation of this Agreement will be void and of no effect. The relationship between the parties is that of independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable law. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”