Please read and consider the terms of this agreement carefully when choosing to use Noca services. By registering for, accessing, or using any Noca Service, you acknowledge that you have read, understood and agree to be bound by this agreement, including any additional guidelines referenced in this agreement. If at any time you do not agree to these terms and conditions, please immediately terminate your use of Noca Services. Before you continue, you should print or save a local copy of the Universal Terms for your records. You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Noca, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, Noca and Merchant agree as follows:

1. Origination of Transactions

Subject to the terms and conditions of this Agreement, Noca agrees to act as Merchant’s payments processor for ACH debit, credit and return transactions (“Transactions”) originated or received on behalf of Merchant. Noca agrees to comply by the Operating Rules of NACHA and any and all applicable Federal regulations in connection with Merchant’s origination and receipt of Merchant Transactions through Noca over the Federal Reserve network or similar sub network.

1.1 Compliance: Merchant agrees to comply with all applicable NACHA’s ACH Rules, other NACHA requirements, Federal Reserve requirements and U.S. law governing the submission and retrieval of ACH Transactions. This includes but is not limited to sanctions enforced by the Office of Foreign Assets Control (“OFAC”). Among other things, Merchant shall obtain information regarding OFAC enforced transactions and sanctions and at all times strictly comply therewith. Merchant will inform Noca of any changes in Merchant’s status regarding any and all compliance required under this section as soon as possible and in no case more than five (5) business day of becoming aware of such change.

1.2 Reporting: Noca shall provide reports to Merchant regarding its ACH Transaction volumes, clearly identifying the types of Transactions through the Noca Merchant Portal. Noca shall also provide to Merchant, within no more than five (5) business days of receipt, and in any event, as soon as possible, by way of fax, email or telephone call, any notices received by Noca relating to its or Merchant’s compliance or alleged failure to comply with NACHA’s ACH Rules, other NACHA requirements, Federal Reserve requirements or OFAC enforced transactions and sanctions, or otherwise relating to misuse or alleged misuse of the ACH system. On request of Noca, Merchant shall immediately provide all requested information with regard to specific Transactions to Noca.

1.3 Security: Merchant agrees to abide by the Security Requirements regarding information security of the funds transfers as described in the attached Schedule B. Merchant agrees to provide to Noca, no later than (5) business days of receipt, and in any event, as soon as possible, by way of fax, email or telephone call, any audit reports received by Merchant relating to its or Noca’s compliance with applicable security requirements.

1.4 Investigations: Merchant will assist Noca in all investigations of transactions in a timely manner and will provide to Noca written reports of investigation Transactions.

2. Funding Account.

Merchant shall maintain a funding account at Noca through which Noca may debit or credit daily Transactions, as applicable, pay dishonored and disputed returns, and obtain reimbursement for fees, taxes, fines and costs as provided in Section 4 below, without prior notice or demand. The balance in the Funding Account shall not at any time be less than the greater of (i) $1,000.00 US, or (ii) three times the daily average of the US dollar aggregate amount of debit transactions initiated for the immediately preceding two calendar months. In the event there are not sufficient available funds in the Funding Account to cover Merchant’s obligations under this Agreement, Merchant agrees that Noca may debit any account maintained by Merchant with Noca, including but not limited to, the Reserve Account, or that Noca may set off against any amount it owes Merchant or any account maintained by Merchant with any financial institution in order to obtain payment of Merchant’s obligations under this Agreement.

3. Merchant Liability for Chargebacks

3.1 The amount of a transaction may be reversed or charged back to your Noca Account (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Network, our processor, or a Payer’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement. You are responsible for chargebacks in excess of 1% of your billable volume. All other chargebacks have no fees.

3.2 For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve. We may deduct the amount of any Chargeback and any associated Fees, fines, or penalties listed in the Fee Schedule or assessed by the Association or our processor from any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay payouts from your Noca Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all Noca Account deficit balances unpaid by you.

3.3 If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your Noca Account, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the Service.

3.4 You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Service. To that end, you permit us to share information about a Chargeback with the payer,the payer’s financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to your Noca Account. If a Chargeback dispute is not resolved in your favor by the Association or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.

4. Fees, Taxes, Fines and Costs

4.1 Fees. You shall pay Noca the fees as outlined on www.noca.com provided, however, that in no event shall the aggregate amount of such “Fees” payable by You to Noca be less than the minimum specified on www.noca.com in any calendar month during the term or extended term of this Agreement. All Fees due from You under this Agreement related to the origination of Transactions due Noca shall be debited by Noca on a daily, weekly, or monthly basis from the Funding Account or another account designated by You.

4.2 Taxes: All fees, including but not limited to fees listed at www.noca.com, are exclusive of any and all taxes, including but not limited to, any sales, use, withholding and any other taxes, tariffs, duties or surcharges arising out of or imposed on Merchant or Noca, however designated, based or levied by any federal, state, municipal or local taxing authority, but excluding any taxes imposed on Noca’s income (“Taxes”). Merchant shall promptly reimburse and shall indemnify Noca for all Taxes which Noca is required to pay pursuant to being a supplier of the services hereunder. Furthermore, the Merchant is responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection your use of our software and services (“Taxes”). Merchant is solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. Noca is under no obligation to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
If in a given calendar year you receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Noca will report annually to the Internal Revenue Service (“IRS”), as required by law (IRC Section 6050W), your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.

4.3 Fines: Merchant is responsible for any and all Federal Reserve, ACH network NACHA fees or fines and/or penalties that may be assessed against Merchant or Noca related to the origination of Merchant’s Transactions by and/or the use or misuse of the ACH network by Merchant hereunder, which may be debited by Noca from the Funding Account or another account designed by Merchant.

4.4 Costs: Merchant shall pay Noca all fees and charges incurred by Noca to effect Merchant Transactions, or which are otherwise payable to Noca under this Agreement, which may be debited by Noca from the Funding Account or another account designated by Processor.

5. Termination

5.1 Termination for Convenience. Either party may terminate this Agreement at any time without cause upon sixty (60) days prior written notice to the other.

5.2 Termination for Compliance, Safety and Soundness, Change of Control or Cause: Either party may terminate this Agreement upon written notice in the event that the other party: (i) breaches any material term or condition of this Agreement or is engaged in restricted activity as defined by Noca and fails to cure such breach within thirty (30) days after receipt of written notice of the same; (ii) becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors. Notwithstanding anything to the contrary in this Agreement, Noca may at its sole discretion terminate upon sixty (30) days written notice this Agreement in the event of a material change of ownership of Merchant. Notwithstanding anything to the contrary in this Agreement, Noca may at its sole discretion terminate this Agreement immediately and without notice in order to ensure compliance with law and/or to assure its regulators of the safety and soundness of its operations.

5.3 Effect of Termination: The termination or expiration of this Agreement will not affect the rights of either party against the other which have accrued on or prior to the date of such termination or expiration, nor any provisions expressed to survive such termination or expiration. Unless this Agreement is terminated by Noca for compliance, safety and soundness, change of control or cause, as set forth in Section 5.2 above, or as a result of an order or threatened order by Noca’s banking regulators to cease and desist from providing payment processing services to Merchant, or as a result of Noca’s Board of Directors, upon written advice of Noca’s counsel, electing to terminate this Agreement to ensure compliance with law and/or assure its regulators of the safety and soundness of its operations, Merchant and Noca will develop a mutually agreeable plan which with respect to the transfer of Noca’s processing of Merchant’s Transactions to another service provider, such plan shall be agreed upon prior to Noca’s cancellation of Merchant’s ability to originate Transactions hereunder. Notwithstanding the foregoing, any conversion plan undertaken hereunder must be scheduled for completion within no more than 180 days after termination of this Agreement, unless otherwise agreed by Noca.

6. Merchant Underwriting.

6.1 Noca imposes certain transaction limits on Merchants, including a transaction value limit and a monthly transaction value limit.

6.2 Merchant will be able to request a change to the underwriting limits in a process agreed upon between Merchant and Noca. Merchant’s underwriting limits will be set, and can be revised at any time, by Noca at its sole discretion although it will strive to make those decisions in consultation with Merchant.

6.3 By using Noca’s services, Merchant agrees to Noca contacting financial institutions and other outside agencies to obtain information such as identity verification, and validating Merchant’s credit worthiness. Noca may further share information with other information with other institutions for regulatory and compliance purposes.

7. Merchant’s Representations And Agreements

7.1 Merchant agrees that: (a) each person shown as the receiver on a Transaction received by Noca from a Merchant has authorized the initiation of such Transaction and the crediting or debiting of its account in the amount and on the effective entry date shown on such Transaction; (b) such authorization is operative at the time of transmittal by Noca as provided herein; (c) entries transmitted to Noca by a Merchant are limited to those types of Transactions which comply with Section 1.1; (d) Merchant shall perform its obligations under this Agreement in a timely manner and in accordance with all applicable laws and regulations; and (e) Merchant shall be bound by and comply with the NACHA ACH Rules and Federal Reserve requirements as in effect from time to time, including without limitation the provision thereof making payment of a Transaction by the receiving depository financial institution (“RDFI”) to the receiver (Merchant) provisional until receipt by the RDFI of final settlement for such Transaction; and specifically acknowledges that if such settlement is not received, the RDFI shall be entitled to a refund from the receiver (Merchant) of the amount credited and Merchant shall not be deemed to have been paid. Merchant’s shall indemnify Noca against any loss, liability or expense (including attorneys’ fees and expenses) resulting from any breach of any of the foregoing representations and agreements.

7.2 Merchant is a legal business entity, duly organized, validly existing and in good standing under the laws of the State of its formation.

7.3 Merchant has all necessary power and authority to enter into this Agreement and to perform all of the obligations to be performed by it under this Agreement. This Agreement and the consummation by Merchant of the transactions contemplated hereby have been duly and validly authorized by all necessary action of Merchant. This Agreement has been duly executed and delivered by Merchant and constitutes the valid and binding obligations of Merchant, enforceable in accordance with its terms (except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general principles of law and equity).

7.4 Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby by Merchant will: (i) conflict with, result in the breach of, constitute a default under or accelerate the performance required by the terms of any contract, instrument or commitment to which Merchant is a party or by which Merchant is bound; (ii) violate the articles of incorporation or by-laws of Merchant; (iii) require any consent or approval under any judgment, order, writ, decree, permit or license to which Merchant is a party or by which Merchant is bound; or (iv) require the consent or approval of any other party to any contract, instrument or commitment to which Merchant is a party or by which it is bound, other than approvals which have been obtained or will be obtained prior to or on the date of this Agreement. Merchant is not subject to any agreement with any governmental authority that would prevent the consummation by Merchant of the Transactions contemplated by this Agreement.

7.5 There is no claim, or any litigation, proceeding, arbitration, investigation or material controversy pending, against or affecting Merchant that will have a material adverse effect on Merchant’s ability to perform its obligations under this Agreement. To the best of Merchant’s knowledge, no such claim, litigation, proceeding, arbitration, investigation or material controversy has been threatened or is contemplated.

8. Liability; Limitations On Liability; Indemnity

8.1 Noca shall be responsible only for performing the services expressly provided for in this Agreement, and shall be liable only for its gross negligence in performing those services. Noca shall not be responsible for Merchant’s acts or omissions or alleged acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal or due authorization of any Transaction effected by Merchant) or those of any other person, including without limitation any Federal Reserve Financial Institution or transmission or communications facility, any receiver or RDFI (including without limitation the return of an Transaction by such receiver or RDFIs), and no such person shall be deemed Noca’s agent. Merchant agrees to indemnify Noca against any and all loss, liability, cost or expense (including Noca’s attorneys’ fees, court costs and expenses) resulting from any claim of any person that Noca is responsible for any act or omission or any alleged act or omission of Merchant or any other person described in this Section 8(a).

8.2 In no event shall Noca be liable for any consequential, special, punitive or indirect loss or damage which Merchant may incur or suffer in connection with this Agreement, including losses or damages from subsequent wrongful dishonor resulting from Noca’s acts or omissions pursuant to this Agreement.

8.3 Noca shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission, or communication facilities, equipment failure, war, emergency conditions or other circumstances beyond Noca’s control. In addition, Noca shall be excused from failing to transmit or delay in transmitting a Transaction if such transmittal would result in Noca’s having exceeded any limitation upon its intra-day net funds position established pursuant to Federal Reserve guidelines or if Noca’s otherwise violating any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. Governmental regulatory authority.

8.4 Merchant shall indemnify and hold Noca, its employees, officers, directors, agents and representatives harmless of and from any and all losses suffered or incurred by Noca in connection with any completed, failed or misdirected Transaction; use or alleged misuse by Merchant of the ACH system and/or fines assessed against Noca or Merchant in connection therewith; losses resulting out of the breach or alleged breach by Merchant, including the failure to pay any reversed or failed Transactions that are returned to Merchant by Noca or that, pursuant to applicable NACHA ACH Rules or Federal Reserve requirements, should have been returned by Merchant ; breach by Merchant of any of its representations, warranties or agreements under this Agreement or arising from an act or omission by Merchant that violates any NACHA ACH Rule, Federal Reserve requirement or applicable law; or arising out of or relating to any error or mistake by Merchant or any third party involved in processing Merchant Transactions. Merchant shall not be obligated to indemnify, hold harmless or reimburse Noca for any such losses, claims, damages, expenses or liabilities to the extent that the same are the direct result of the gross negligence or willful misconduct of Noca.

8.5 In addition to other remedies available to Noca pursuant to this Agreement or available under law or in equity, Merchant shall defend and indemnify Noca from and against, and hold it harmless from all allegations, suits, claims, actions, legal proceedings, counterclaims, and demands of any kind or nature and all reasonable costs incurred by Noca in connection therewith (individually a “Claim” and collectively “Claims”) which Claims arise from or result by reason of (i) any inaccuracy in, breach or alleged breach of any of the representations or warranties made by Merchant pursuant to this Agreement; (ii) a refusal or failure of Merchant to fully and timely perform in accordance herewith any of its warranties, agreements, responsibilities, obligations or duties to Noca or to third parties provided for in this Agreement; (iii) the criminal conduct, negligence or willful misconduct of Merchant or any of its agents or employees; (iv) any Claim asserted against or suffered by Noca arising out of Merchant’s misconduct or violation of any obligation herein; or (v) any infringement by Merchant of any patent, copyright, trademark or other intellectual property or proprietary right, the use of which is contemplated by this Agreement; (vi) any dealings between Merchant and any third party (including other financial institution); and (vii) Noca’s acting as the Sponsor for Merchant. Promptly after receipt of notice of the commencement of any Claim, Noca will notify Merchant of the commencement thereof, but the omission to so notify Merchant will not relive it from any liability which it may have to Noca hereunder. In the event of any Claim, Noca shall be entitled to assume and control the defense thereof, with counsel satisfactory to Noca, acting reasonably. Expenses (including attorneys’ fees and costs) incurred by Noca in connection with any Claim must be paid by Merchant in advance immediately upon the written request of Noca and evidenced in writing once paid; provided Noca shall undertake to repay such expense advances to the extent that it is ultimately determined that Noca is not entitled to indemnification.

9. Reserved.

10. Compliance with Applicable Rules and Regulations.

Noca represents and warrants that it is established with the Federal Reserve or similar such network systems as an ISO and that it will comply, and will remain in compliance with, the bylaws, rules, regulations, operating manuals, operating letters, policy statements and guidelines mandated by the NACHA or applicable Federal Reserve regulations. Noca agrees to pay any and all dues, fees, assessments, etc. assessed by the Federal Reserve or NACHA, as may be applicable, for Noca to maintain its status as an ISO and financial sponsor hereunder. Merchant agrees to reimburse Noca for any such dues, fees, assessments, etc., that relate directly and because of Noca’s ISO services to Merchant. In the event Noca receives any notices, directives, rulings or any other communication from the Federal Reserve or NACHA that would be of material interest to, or impact the relationship or services of Merchant, Noca shall within three (3) business days forward such notice to Merchant.

11. Compliance with Applicable Laws.

Each party represents and warrants to the other that it has obtained all necessary regulatory approvals, certificates and licenses with respect to its business and/or services and that it is in compliance with all present and future federal, state and local laws and regulations thereto.

12. Confidentiality.

Each party agrees at all times to maintain the complete confidentiality of the Confidential Information of the other party. For purposes of this Agreement, “Confidential Information” shall mean any competitively sensitive or secret business, marketing, or technical information, technology, business processes or procedures, and customer information of Merchant, Noca, and/or either of their affiliates, the terms and conditions of this Agreement, including all communications between Merchant and Noca relating to this Agreement and either party’s proprietary business practices and procedures. Confidential Information shall not include information which is: (i) generally known to the public or readily ascertainable from public sources (other than as a result of a breach of the confidentiality provision hereunder); (ii) independently developed by the receiving party without reference to or reliance on any Confidential Information of the disclosing party as demonstrated by the records of the receiving party; or (iii) obtained from an independent third party who created or acquired such information without reference to or reliance on Confidential Information or breach of obligations of confidentiality. Neither party shall permit or authorize access to, or disclosure of, the Confidential Information of the other to any person or entity other than its employees or advisors who have a “need to know” such information in order to enable such party to exercise its rights or perform its obligations under this Agreement. Neither party shall disclose or supply the Confidential Information of the other to any non-employee third party without the prior written approval of the other party, which approval shall not be unreasonably withheld, provided the requesting party can demonstrate a need for such disclosure in order to comply with its obligations hereunder. Notwithstanding the foregoing, each party may provide Confidential Information of the other to its affiliates, contractors, and third party service or product suppliers to the extent reasonably necessary to perform its obligations hereunder, provided that such third party is advised of the disclosing party’s obligations of confidentiality hereunder, and the disclosing party agrees that it shall remain primarily responsible for any misuse of such Confidential Information by such third party. Either party may disclose portions of the Confidential Information of the other to the extent such disclosure is required by any rule, law, regulation, court, court order, or government or quasi-government agency, provided the party required to make such disclosure notifies the other party of the applicable legal requirements before such disclosure occurs and assists the other party to obtain such protection as may be available to preserve the confidentiality of such information.

13. Limitation of Warranties.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, NOCA MAKES NO WARRANTY, EXPRESS OR IMPLIED HEREUNDER, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Noca will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts and check issuances are processed in a timely manner but Noca makes no representations or warranties regarding the amount of time needed to complete processing because the Noca Service is dependent upon many factors outside of our control, such as delays in the banking system or the U.S. or international mail service. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. This paragraph gives you specific legal rights and you may also have other legal rights that vary from state to state.

14. Limitation of Liability.

EXCEPT AS OTHERWISE SET FORTH HEREIN, Noca SHALL NOT BE LIABLE TO MERCHANT OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, REPRESENTATIVES OR ANY THIRD PARTY, INCLUDING ANY MERCHANTS, FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS, IN ANY WAY RELATING TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY LOSSES RESULTING FROM A BREACH OF ANY TERM OF THIS AGREEMENT, EVEN IF Noca WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15. Force Majeure.

Neither party shall be in default for failing to perform under this Agreement if such failure arises out of any act, event, or circumstance beyond the reasonable control of such party, whether or not predicted or foreseeable including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, provided that the delayed party: (a) gives the other party
prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance. In the event of a suspension of services due to a Force Majeure event, Processor shall be relieved from any monthly fee or volume commitments and monthly recurring charges for the duration of such suspension.

16. Miscellaneous

16.1 Governing Law/Venue: The Terms, and your relationship with Noca under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Noca agree to submit to the exclusive jurisdiction of the courts located within the county of San Mateo, California to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Noca shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

16.2 Relationship of the Parties: The parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Except as provided in this Agreement, each party shall bear its own costs and expenses in connection with the performance of its obligations under this Agreement. Neither of the parties will have the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent.

16.3 Notices: All notices, requests, and other communications required or permitted to be given or delivered hereunder to either party must be in writing, and shall be personally delivered, sent by certified or registered mail, postage prepaid and addressed, by a recognized national overnight courier or by confirmed facsimile, to such party at the address or facsimile number set forth in this Agreement, or at such other address or facsimile number as has been furnished by notice given in compliance with this section. All notices, requests, and other communications shall be deemed to have been given upon delivery as evidenced by return receipt, courier records, or facsimile confirmation.

16.4 Assignment: Neither party may assign, transfer, or delegate its rights or obligations hereunder without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed. The terms, conditions, provisions and other undertakings contained in this Agreement shall be binding upon, and shall inure to the benefit of, the respective successors of each party hereto.

16.5 Severability: If any provision of this Agreement be held by a court of competent jurisdiction or arbitration authority to be unenforceable, the remaining provisions of this Agreement shall not be affected or impaired thereby.

16.6 Waiver: The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

16.7 Survival: The provisions of Sections 1, 2, 4, 7, 8, 9, 10 and 12 shall survive the termination of this Agreement.

16.8 Entire Agreement: This Agreement sets forth the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements and understandings, whether oral or written, relating to the subject matter herein. No alteration, waiver, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and may be modified or waived only by a separate letter executed by the party expressly so modifying or waiving such Agreement.

17. Release of Noca

17.1 If you have a dispute with one or more Users, you release Noca, its officers, directors, agents, joint ventures and employees from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.

17.2 Authority: Each party, and each person signing on behalf of a party, represents and warrants that it has the full legal capacity and authority to enter into and perform the obligations of this Agreement without any further approval, and that entering into this Agreement does not violate any other obligation to which it may be subject.

17.3 Counterparts: For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and the same Agreement.



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