Effective as of 12/1/2018
These Terms of Service (“ToS”) contain term of use of the Nexla Service and is between Nexla Inc, (“Company”), and the party agreeing to the terms of this agreement (“Customer”). These ToS will be supplemented with an online or paper-based Nexla Services Agreement (“SA”) which will describe the services, billing cycle, service fee, service level, and service term. Together the ToS and SA will constitute the entire agreement (“Agreement”) between Company and Customer. However, if a written, fully executed agreement between Company and Customer already exists regarding Customer’s use of Company’s services, then the terms of that agreement will take precedence over this Agreement.
1. COMPANY SERVICES AND SUPPORT
1.1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with this Agreement. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in the Services Order in accordance with the Company’s standard practice. The warranties and support services extended to Customer will be at least as favorable as those extended to Company’s similarly situated customers, in the same pricing tier, at the same support pricing, at similar account size, and using substantially similar services as Customer.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer will not, directly or indirectly: 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 Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party (not including any of Company’s wholly-owned subsidiaries); or remove any proprietary notices or labels. Customer may extend its rights under this Agreement to its wholly-owned subsidiaries, provided that Customer shall remain responsible for their compliance with the terms of this Agreement.
2.2. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes, without limitation, non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes, without limitation, non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The terms of this Agreement shall be considered Proprietary Information of both parties. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that, except to the extent any Proprietary Information constitutes personally-identifiable information, the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of or reference to any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. If the Receiving Party is legally compelled to disclose any portion of Proprietary Information, the Receiving Party shall, to the extent legally permissible, provide the Disclosing Party with advance notice of such compelled disclosure in order to enable the Disclosing Party, at its own cost, to seek a protective order or other confidential treatment of any Proprietary Information required to be disclosed.
3.2. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4. Company will (a) use industry standard safeguards (at technical, administrative and physical levels) that protect Customer Data from unauthorized disclosure, (b) promptly notify Customer of any security breach affecting Customer Data and (c) upon termination or expiration of the Agreement, make Customer Data available to Customer for download and thereafter use commercially reasonable efforts to delete or destroy all raw Customer Data in Company’s possession or control.
4. PAYMENT OF FEES
4.1. Customer will pay Company the then applicable fees described in the Order Form for the Services and Professional Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Tier set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2. Fees will be billed as per the SA. Any overages during the period will be billed in the subsequent cycle. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given payment period must be received by Company within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2. After the Initial Service Term, either party may terminate this Agreement upon thirty (30) days’ written notice for any or no reason. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement 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.
6. WARRANTY AND DISCLAIMER; INDEMNIFICATION
6.1. Warranty. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Professional Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE 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 SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.2 Company’s Indemnification Obligations. Company hereby agrees to indemnify, defend and hold harmless Customer from and against any and all liabilities, losses, claims, damages, suits, fines, judgments, costs and expenses, including reasonable attorneys’ fees, which may be suffered or incurred by Customer in connection with any third party claim arising out of or relating to: (a) Company’s gross negligence or willful misconduct; or (b) any claim that the Service or Customer’s use thereof infringes upon, misappropriates, or otherwise violates any patent, copyright, trade secret, trade mark, or other intellectual property or other proprietary right of a third party. In the event a court of competent jurisdiction issues an injunction prohibiting the use or provision of the Services, Company shall, at its expense, either: (i) procure for Customer the right to continue using the Services; or (ii) replace or modify the Services so that they becomes non-infringing; or (iii) if neither (i) or (ii) above is commercially reasonable, terminate the Agreement and issue a refund to Customer of any prepaid Fees.
6.3 Customer’s Indemnification Obligations. Customer hereby agrees to indemnify, defend and hold harmless Company from and against any and all liabilities, losses, claims, damages, suits, fines, judgments, costs and expenses, including reasonable attorneys’ fees, which may be suffered or incurred by Company in connection with any third party claim arising out of or relating to: (a) Customer’s gross negligence or willful misconduct; or (b) any material misrepresentation or breach of any representation or warranty in this Agreement.
6.4 Exclusions. Company’s indemnification obligations under Section 6.2(b) will not apply to the extent any infringement claim is caused solely by (a) modifications to the Service made in accordance with Customer’s specifications, if the alleged infringement would not have occurred but for such modification; (b) modifications made to the Services without Company’s approval, if the alleged infringement would not have occurred but for such modification; or (c) the combination of the Services with other products, processes or materials not supplied or approved by Company or otherwise reasonably contemplated by this Agreement, if the alleged infringement would not have occurred but for such combination.
6.5 Procedure. The indemnified party shall promptly notify the indemnifying party of any such claims, suits and actions, and upon request, provide reasonable assistance to the indemnified party at the indemnified party’s expense. The indemnified party shall not enter into any settlement or compromise related thereto that contains an admission on the part of or otherwise negatively impacts the indemnifying party in any manner without the prior written consent of indemnifying party.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party except (i) to an affiliate, (ii) in connection with a merger, acquisition or similar change in control, or (iii) with the other party’s prior written consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon case study and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request, including the use of Customer’s logo in Company marketing.