IPFAXSERVICES Partner Agreement
This IPFAXSERVICES Partner Agreement, including all Schedules, (the “Agreement“) is entered into by and between Nxgen Networks Inc. (“Nxgen”), a Canadian corporation, with its principal place of business at Unit #1, 9228 Glover Road, Fort Langley, BC, V1S2R9 and the entity agreeing to these terms (“Solution Partner“). This Agreement is effective as of the date Solution Partner clicks the “I Accept” button below (the “Effective Date”). If you are accepting on behalf of Solution Partner, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you do not have the legal authority to bind Solution Partner, please do not click the “I Accept” button below.
WHEREAS, Nxgen delivers software applications ‘as-a-service’ over the Internet and Solution Partner wishes to refer or resell such Services (as defined below) to Solution Partner’s customers.
NOW THEREFORE, the parties intending to be legally bound, hereby agree as follows:
1.1 “Affiliate” means an entity that is directly or indirectly controlled by or is under common control with a party, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity.
1.2 “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive Brand Features of each party, respectively, as secured by such party from time to time.
1.3 “Compliant Order” means an accepted order accepted in writing by Nxgen for the purchase of Services which complies with the terms of this Agreement, with the terms of the EULA, the User Agreements and/or with any other Nxgen policies then currently in place.
1.4 “Confidential Information” means all non-public information of the disclosing party (the “Discloser”) in any verbal, recorded, written or other form, including but not limited to the existence and content of the discussions between the parties and this Agreement; trade secrets, communication samples, pricing, inventions and confidential knowledge; information concerning the Discloser or Affiliates; information concerning Customers; Customer Data; the prices Solution Partner charges Customers for the Services; personally identifiable information; information concerning the business, processes, procedures, technology, customers, potential customers or suppliers of the Discloser or its Affiliates (including but not limited to customer records and lists of customers or suppliers); and any software, documentation or data of the Discloser or its Affiliates; provided that “Confidential Information” shall not include information which the receiving party (the “Recipient”) can establish: (i) was already in the Recipient’s possession at the time of disclosure by the Discloser; (ii) has become publicly available without any improper act or omission of the Recipient; (iii) was disclosed to the Recipient by a third party having legitimate possession of such information and having no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by the Recipient without access to or use of the Confidential Information. For the avoidance of doubt, each party to this Agreement is a Recipient and a Discloser.
1.5 “Customer” means an entity subscriber to Services who purchases Services hereunder, through Solution Partner’s referral.
1.6 “Customer Data” means any and all files, information, data or other content in whatever form that Customer or Solution Partner (on Customer’s behalf) uploads to the Services and/or provides to Nxgen in connection with Customer signing up for and/or using the Services.
1.7 “EULA” means Nxgen’s end user license agreement or terms and conditions governing Customers’ access and use of the Services, as maintained and updated from time to time by Nxgen. A copy of the current version of the EULA as of the Effective Date is attached hereto as “Schedule C”.
1.8 “Intellectual Property Rights” means patents and patent applications, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property rights.
1.9 “Level 1 Support” means support provided to Customers that involves being the first point of post-sales contact for Customers support needs.
1.10 “Solution Partner Nxgen Account” means a Nxgen Enterprise account issued to Solution Partner for the sole purpose of training and demonstrating the Services to prospective and current Customers.
1.11 “Service(s)” means the Nxgen Pro and Nxgen Enterprise products, as further described at their respective websites, (www.Nxgen.com/plans/pro and www.Nxgen.com/features) and such other products and services as both parties may agree to in writing the future by way of adding a separate Schedule substantially in the form entered into between the parties hereunder, which will incorporate the terms of this Agreement by reference.
1.12 “Taxes” means sales and use taxes.
1.13 “Term” means the Initial Term and any Renewal Terms for this Agreement as defined herein.
2. SOLUTION PARTNER GRANT AND SCOPE.
2.1 Solution Partner Appointment. Subject to the terms of this Agreement, Nxgen hereby appoints Solution Partner as a non-exclusive reseller of the Services to Customers and grants to Solution Partner a non-exclusive right to (i) demonstrate, promote, market, resell the Services to prospective Customers ; and (ii) use the Services for training, testing, support and any other purposes in order to fulfill its role as reseller and/or comply with its obligations under this Agreement.
2.2 Subcontracting. Solution Partner may not subcontract or outsource any or all of its obligations under this Agreement without the prior written consent of Nxgen in Nxgen’s sole discretion.
2.3 Non-exclusive. This Agreement is intended to constitute a non-exclusive relationship between Solution Partner and Nxgen.
3. SOLUTION PARTNER OBLIGATIONS AND RESTRICTIONS
3.1 Marketing and Promotion. Solution Partner will use commercially reasonable efforts to market and resell Services according to the terms and conditions set forth in this Agreement in accordance with the training and marketing materials provided by Nxgen as specified herein.
3.2 EULA. Solution Partner’s resale and Customer’s use of the Services shall be subject to Customer’s specific acceptance of the EULA. When purchasing the Services through Solution Partner, the EULA shall clearly be referenced to in the agreement signed between Solution Partner and Customer, and Customer shall agree to be bound by the EULA. Solution Partner acknowledges that the EULA may, from time to time, be modified by Nxgen. Should Nxgen update or change the EULA, Solution Partner shall be notified of such change or update by Nxgen in writing (the “Updated Terms”). Upon receipt, Solution Partner shall be responsible to provide Customers with the Updated Terms, and the Updated Terms shall become effective and binding on Solution Partner and on the Customer on the seventh (7th) business day after they are provided to Solution Partner. Solution Partner shall not have the right to modify the terms of the EULA in any way.
3.3 Solution Partner General Undertakings. i) Solution Partner shall not make any commitment, representation or warranty in respect of Services to Customers except as expressly provided in the EULA, this Agreement, or as otherwise authorized in writing by Nxgen; ii) Solution Partner shall perform its obligations under this Agreement in a good, workmanlike, diligent, efficient and professional manner consistent with reasonably applicable industry standards and shall at all times avoid deceptive, misealding or unethical practices that are, or might be detrimental to Nxgen, its Services or the public; iii) in performing its obligations under this Agreement, Solution Partner may only refer to itself as an “Authorized Nxgen Reseller”, the whole subject to the terms and conditions of this Agreement; iv) without limiting the generality of 3.3 iii) Solution Partner shall conduct its business for its own account, in its own name, and not as an agent, employee, partner, or franchisee of Nxgen (for added clarity, reference herein to the word “Partner” herein does not intend to make Solution Partner a partner of Nxgen); v) Solution Partner shall conduct its business in a manner that reflects favourably at all times on Nxgen and the good name, goodwill and reputation of Nxgen; vi) Solution Partner shall observe all reasonable directions and instructions given to it by Nxgen in relation to the promotion and marketing of the Services; vii) Solution Partner shall at all times abide with the User Agreements; and viii) Solution Partner shall ensure the compliance of its subcontractors, licensors, officers, directors and employees, partners and Affiliates (as applicable) with the terms of this Agreement, and the User Agreements and be responsible for any breach of the Agreement by such persons/entities.
3.4 Access to Solution Partner Nxgen Account. During the Term, Nxgen may provide Solution Partner with a Solution Partner Nxgen Account for its exclusive internal use, and solely to allow Solution Partner to demonstrate, and provide training for the Services to prospective and current Customers. Solution Partner’s use of the Solution Partner Nxgen Account is subject to its acceptance of the EULA, the User Agreements, and subject to all other terms and conditions outlined in this Agreement.
4. NXGEN OBLIGATIONS
4.1 Training. Nxgen shall provide Solution Partner with training through Nxgen University. Should Solution Partner request for additional training to be provided, the details of the training program shall be detailed in the attached Schedules. All training will be provided by Nxgen to Solution Partner free of charge, unless otherwise agreed upon by the parties, as specified in the appliable Schedule.
4.2 Additional Obligations. Throughout the Term of this Agreement, Nxgen shall also:
i) Provide documentation, standard training literature, sales and promotional materials (which may include eletronic marketing materials) in such quantities as deemed necessary by Nxgen; and
ii) Ensure that all Services will be provided in a good, workmanlike, diligent and efficient manner.
5. COMPENSATION, ORDERING, INVOICING AND PAYMENT
5.1 Compensation. Compensation for Solution Partner is outlined inSchedule B attached.
5.2 Currency. All currency for Customers will be in Unites States dollars unless otherwise agreed to.
5.3 Compliant Order. Notwithstanding anything else in this Agreement, Nxgen reserves its right to disallow any Customer order placed by Solution Partner for any reason, including if the order is not a Compliant Order. Nxgen will make best efforts to ensure that Services will be available for access and use by a Customer within 48 business hours of a Compliant Order.
5.4 Payment. Nxgen shall remit payments to Solution Partner as outlined in Schedule B attached.
5.5 Taxes. The compensation payable under this Agreement are net amounts and do not include taxes. For all invoices covering Services, such taxes will be paid by Solution Partner. Notwithstanding anything to the contrary in this Agreement, each party will be responsible for taxes based on its own capital, net income, employment taxes of its own employees, and for taxes on any property it owns.
6. SUPPORT AND QUALITY ASSURANCE
6.1 Level 1 Support. Unless otherwise agreed in writing on a case-by-case basis, Nxgen will provide Level 1 Support to Customers who purchase Services through Solution Partner. Support will be provided in accordance with Nxgen’s then current Service Level Agreement published atwww.Nxgen.com/enterpriseterms or at www.Nxgen.com/terms (as applicable) (the “SLA”). Solution Partner shall also have access to Nxgen’s trouble ticket system which can be accessed throughhttp://partnerportal.Nxgen.com/support/. All reasonably required support that Nxgen provides to Solution Partner or Customers hereunder will be free of charge.
6.2 Audit Rights. Subject to the confidentiality obligations in this Agreement, Solution Partner agrees that Nxgen will have the right to audit Solution Partner’s processes to ensure that the quality of the services provided by Solution Partner is at least of equivalent quality to the quality of services Nxgen provides to its own customers. Nxgen’s audit rights shall include i) the right to review samples of communications sent by Solution Partner to potential and current Customers to assess the quality of responses and suggest reasonable modifications to such communications in good faith, and ii) the right to send questionnaires to Customers enrolled by Solution Partner to determine whether Solution Partner is providing an adequate level of service. Any such audit shall be conducted during regular business hours at a mutually agreeable time and upon reasonable advance notice. All costs of the audit shall be borne by Nxgen. Should Nxgen’s audit reveal that the services provided by Solution Partner are not of at least equivalent quality to the services Nxgen provides to its own customers, Nxgen will notify Solution Partner of the results of such audit. Solution Partner will be provided with the opportunity to cure any quality issues within thirty (30) business days of such notice. At the end of that period, Nxgen, acting in good faith will re-assess the quality of the services provided by Solution Partner and determine if the quality issues outlined by the audit have been cured by Solution Partner. Should Nxgen, in its sole discretion, determine that the quality issues have not been cured by Solution Partner, then Nxgen shall have the right to terminate this Agreement in accordance with Section 9.1.
7. CONFIDENTIAL INFORMATION
7.1 Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but in no event less than reasonable care; and (b) not disclose the Confidential Information, except to its employees, contractors, subcontractors, agents, and professional advisors (collectively, “Representatives”) who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. Each party may use Confidential Information only to exercise rights and fulfill obligations under this Agreement while using reasonable care to protect it. Each party is responsible for any actions of its Representatives in violation of this Section 7. Notwithstanding anything to the contrary, each party may disclose the other party’s Confidential Information (a) with such other party’s express written consent, and (b) when required by law but only after it, if legally permissible, notifies such other party and gives such other party the chance to challenge the disclosure.
8. INTELLECTUAL PROPERTY RIGHTS; BRAND FEATURES
8.1 Ownership. Except as expressly stated otherwise in this Agreement, neither party will acquire any rights, title or interest, in any of the Intellectual Property Rights belonging to the other party, or the other party’s licensors. All ownership rights, title, and Intellectual Property Rights in and to the content accessed through any Services are the property of the applicable content owner and may be protected by copyright or other applicable laws. For the avoidance of doubt, as between Nxgen and Solution Partner, Nxgen retains all right, title and interest in and to the Services. Except for the limited rights and licenses granted to Solution Partner pursuant to this Agreement, and subject to the applicable obligations and restrictions set forth herein, nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect the Services or any of Nxgen’s rights or interests therein or any other Nxgen Intellectual Property Rights, including but not limited to brands, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible. All rights not expressly granted in this Agreement are reserved by Nxgen.
8.2 Brand Features Licenses.
i. By Nxgen. During the Term, Nxgen grants to Solution Partner a nonexclusive, non-royalty bearing, and nonsublicensable license to display Nxgen’s Brand Features solely for the purpose of Solution Partner’s marketing and distribution of the Services, subject to, and in accordance with, this Agreement.
ii. By Solution Partner. During the Term, Solution Partner grants to Nxgen a nonexclusive, non-royalty bearing, and nonsublicensable license to include Solution Partner’s Brand Features in presentations and marketing materials solely for the limited purposes of marketing Nxgen’s relationship with Solution Partner under this Agreement.
iii. Restricted Use. Each party may use the other party’s Brand Features only as expressly permitted in this Agreement. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
iv. Publicity. Without limiting the generality of the foregoing, neither party will issue any press releases, public announcement, or public statement regarding the existence or content of this Agreement, or related to the relationship between the parties without the mutual written approval of both parties.
9. AGREEMENT TERM; TERMINATION
9.1 Initial Term; Auto-Renewal; Termination for Convenience. This Agreement will commence on the Effective Date and will continue for an initial term of twelve months (the “Initial Term”). Following the expiry of the Initial Term, and on each anniversary of the Effective Date, this Agreement will renew for an additional term of twelve months (each a “Renewal Term” and collectivelly referred to as the “Term”). Notwithstanding the foregoing, at any time during the Term, either party may terminate this Agreement for convenience by providing at least fifteen (15) days prior written notice to the other.
9.2 Termination for Breach. Notwithstanding anything to the contrary elsewhere in this Agreement, either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within ten (10) days after receipt of written notice; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days. Any violation of law is deemed a material breach of this Agreement.
9.3 General Effect of Termination. Upon any termination or expiration of this Agreement: (i) all rights and licenses granted by one party to the other will immediately cease; (ii) each party will promptly return to the other party, or destroy and certify the destruction of, all of the other party’s Confidential Information, provided that the Recipient shall be entitled to retain archival copies of the Confidential Information for legal, regulatory or compliance purposes, and nothing shall require the erasure, deletion, alteration, or destruction of back-up tapes and other back-up media made in accordance with the Recipient’s document-retention policies and procedures, provided that all such retained Confidential Information remains subject to the obligations of confidentiality and restrictions on use set forth in this Agreement. Termination or expiration of this Agreement, in part or in whole, will not limit either party from pursuing other remedies available to it, and termination or expiration of this Agreement does not affect any Customer subscriptions of Services then in effect (as further described in 9.4).
9.4 Effect on Customers. The parties acknowledge and agree that Solution Partner will offer Services to Customers for fixed terms that may exceed the Term or expiry of this Agreement. As such, in order to ensure Customer’s ability to continue receiving the Services for the full term of each Compliant Order, upon any expiration or termination of this Agreement, at Nxgen’s option, the Term of this Agreement may nevertheless be deemed to be extended (to the extent necessary) on a Customer-by-Customer basis, and shall run concurrently with the term of each of the outstanding Compliant Orders entered into during the Term. The express intent of the parties in so stating is to allow Customer to continue having access to the Services, and to obligate Solution Partner to continue to make timely payment (if applicable) for the entire term of any such Compliant Order in order for Solution Partner to reasonably rely upon Nxgen to provide the Services to such Customer for the full term of the Compliant Order, regardless of the circumstances surrounding any termination of this Agreement. Nxgen shall not be obligated to provide Services to Customer beyond the term or on different conditions than those agreed to by Nxgen in the Compliant Order, irrespective of any agreement or representations to that effect by Solution Partner. Upon expiry or termination of this Agreement with Solution Partner, and upon termination of each individual Compliant Order, Nxgen will have the right to directly enter into an agreement with Customer which will allow Customer to continue subscribing to Services provided by Nxgen with no further compensation obligation to Solution Partner.
10.1 By Nxgen. Nxgen represents and warrants that the Services will achieve in all material respects the functionality described in the marketing materials provided by Nxgen through www.Nxgen.com and applicable to the Services procured to Customer.
10.2 By Solution Partner. Solution Partner represents and warrants that i) it will not make any false, misleading or unauthorized representations with regard to Nxgen or the Services that are contrary to those set out in this Agreement or to those set out in any documentation or materials provided by Nxgen or otherwise publicly available; ii) it shall cause each Customer purchasing the Services to consent to the EULA; iii) it shall not knowingly modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Services made available by Nxgen in connection with this Agreement; iv) it shall perform its obligations under this Agreement in a professional manner consistent with reasonably applicable industry standards; and v) it will provide Nxgen with full and complete collaboration at all times.
10.3 By Both Parties. Each party further represents and warrants that (i) it has the legal power and authority to enter into this Agreement and perform its obligations hereunder; and (ii) it will comply with, and will not attempt to cause a violation by anyone of, all applicable laws, rules or regulations.
10.4 Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 10, NXGEN DOES NOT REPRESENT THAT CUSTOMER’S OR SOLUTION PARTNER’S USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET SOLUTION PARTNER’S OR CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICES AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 10 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY NXGEN. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
11.1 By Nxgen. Nxgen will indemnify, defend, and hold harmless Solution Partner, its employees, officers, directors and Affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) incurred in connection with any claim, action, proceeding, or judgment arising from any and all third-party claims that the Services as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Services in violation of this Agreement or applicable law, or (b) use of the Services after Nxgen notifies Customer to discontinue use because of an infringement claim.
11.2 By Solution Partner. Solution Partner will indemnify, defend, and hold harmless Nxgen its employees, officers, directors and Affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) incurred in connection with any claim, action, proceeding, or judgment arising from claims that arise out of a breach of Section 10.2 or any and all third party claims that Solution Partner’s Brand Features infringe or misappropriate any Intellectual Property Rights of a third party.
11.3 Requirements for Obtaining Indemnification. To obtain indemnification, the party seeking indemnification (“Indemnitee”) must: (i) give written notice of any claim promptly to the other party (“Indemnitor”); (ii) give Indemnitor, at its option, sole control of the defense and settlement of such claim, provided that Indemnitor may not, without the prior consent of Indemnitee (not to be unreasonably withheld), settle any claim unless it unconditionally releases the Indemnitee of all liability; (iii) provide to Indemnitor all available information and assistance; and (iv) not compromise or settle such claim. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
12. LIMITATION OF LIABILITY
12.1 Limitation on Indirect Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. FOR GREATER CERTAINTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY FAILURE TO REALIZE EXPECTED SAVINGS, ANY LOSS OF REVENUES OR PROFITS, LOST DATA, LOSS OF COMPUTER TIME OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES.
12.2 Limitation of Liability Amount. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL NXGEN’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF FEES PAID TO SOLUTION PARTNER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
12.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations. in the event of a breach of confidentiality obligations hereunder, such maximum liability of either party shall be an amount equal to six (6) times the equivalent of 12 months of fees paid or payable under this Agreement during the twelve (12) month period immediately preceding the date on which the cause of action arose.
13. MISCELLANEOUS PROVISIONS
13.1 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the Province of British-Columbia and the federal laws of Canada, without regard to conflict of law principles. Nxgen and Solution Partner agree that any suit, action or proceeding arising out of, or with respect to, this Agreement or any judgment entered by any court in respect thereof shall be brought exclusively in the state or federal courts of the Province of British-Columbia located in the City of Vancouver, and each of Nxgen and Solution Partner hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose of any suit, action or proceeding.
13.2 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, acts or omissions of third party vendors or suppliers, equipment failures, sabotage, third party labor shortage or dispute, governmental act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses reasonable commercial efforts to promptly correct such failure or delay in performance.
13.3 Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
13.4 Entire Agreement. This Agreement is the parties’ entire agreement relating to its subject matter and supersedes any prior or contemporaneous agreements related to such subject matter.
13.5 Modifications. Any modification, amendment, or addendum to this Agreement must be in writing and signed by both parties.
13.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Nxgen may assign this Agreement in its entirety, without consent of Solution Partner, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
13.7 No Third Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.
13.8 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement shall remain in full force and effect.
13.9 Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party, as well as emailed to Solution Partner at the email address provided by Solution Partner in the application form initially submitted to Nxgen. Such notice will be deemed to have been given as of: (i) the date it is delivered, if delivered by personal delivery; (ii) the next business day, if deposited with an overnight courier; (iii) upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail), if delivered by facsimile; and (iv) five days after being so mailed, if delivered by mail and email. If Nxgen provides any notice to Solution Partner’s Customers directly, Nxgen must also provide such notice to Solution Partner prior to providing any such notice to Customers.
13.10 Independent Contractors. Solution Partner and Nxgen are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Solution Partner and Nxgen. Each party understands that it does not have authority to make or accept any offers or make any representations on behalf of the other. Neither party may make any statement that would contradict anything in this section.
13.11 Headings. The headings of the sections of this Agreement are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.
13.12 No Waiver. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
13.13 Non-Solicitation. Neither party shall solicit for employment nor directly or indirectly induce the termination of employment of any of each other’s personnel who are directly involved in the negotiation of this Agreement and/or any fulfillment of a party’s obligations under this Agreement, during the Term of this Agreement and for twelve (12) months following termination of this Agreement. The foregoing restrictions shall not apply if one party’s personnel seeks employment with the other party as a result of a response to a general solicitation (such as in a newspaper, trade journal, online posting or other advertisement or job fair).
13.14 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement including, without limiting the generality of the foregoing, sections 7, 8, 9.3, 9.4, 10, 11, 12, 13 ( as applicable).
Solution Partner may offer to Customers the following products:
· Nxgen Pro
Overview of key features provided at http://Nxgen.com/plans/pro/
· Nxgen Enterprise
Overview of key features provided at http://Nxgen.com/features/
Solution Partner shall act as a simple referral entity between Nxgen and the Customer. Subject to payment of Solution Partner’s compensation as outlined in Exhibit B, Customers will be purchasing Services directly from Nxgen.
In accordance with the terms and requirements herein, Nxgen will pay Solution Partner a revenue share portion of the Services sold.The revenue share shall be based upon a Solution Partner’s Customer Revenue (as defined below) (the “Revenue Share”):
· 20% of the Customer Revenue of all Compliant Orders of Nxgen Enterprise opportunities sold by Solution Partner; and
· 20% of the Customer Revenue of all Compliant Orders of Nxgen Pro opportunities sold by Solution Partner.
Revenue Share Details – Nxgen Pro
1. As used in this Agreement, “Customer Revenue” is defined as revenues (excluding sales tax) actually collected by Nxgen directly from Customers for the use of the Services and referred through Solution Partner as a Compliant Order, net of billing service fees of three percent (3%), credit card charges, bad debt fees, refunds, and any other applicable processing fees.
2. Subject to change at any time by Nxgen in its sole discretion, Customers shall pay Nxgen directly for Services. Nxgen will then pay Solution Partner the Revenue Share on a monthly basis provided that Solution Partner’s then current monthly Revenue Share is equal to or greater than $100 per month. In the event that Solution Partner’s current monthly Revenue Share is less than $100 per month, Nxgen will accrue Solution Partner’s monthly Revenue Share until such time that the total accumulated unpaid Revenue Share at the end of the then current month exceeds $250. All Revenue Share payments hereunder shall be paid within forty-five (45) days of the end of the period for which such Revenue Share is to be paid, and subject to Nxgen policies.
3. Monthly Customer Revenue shall not include revenue generated from Nxgen’s own customer accounts that have subscribed to the Services prior to the Effective Date of this Agreement.
Revenue Share Details – Nxgen Enterprise
1. As used in this Agreement, “Customer Revenue” is defined as revenues (excluding sales tax) actually collected by Nxgen Media directly from Customers for the use of the Products, net of billing service fees of three percent (3%), wire transfer fees, credit card charges, bad debt fees, refunds, and any other applicable processing fees.
2. Subject to change at any time by Nxgen in its sole discretion, Nxgen will pay Solution Partner the Revenue Share on a quarterly basis provided that Solution Partner’s then current Revenue Share is equal to or greater than $100 per quarter. In the event that Solution Partner’s then current quarterly Revenue Share is less than $100, Nxgen will accrue Solution Partner’s Revenue Share until such time that the total accumulated unpaid Revenue Share at the end of the then current quarter exceeds $100. All Revenue Share payments hereunder shall be paid within forty-five (45) days of the end of the quarter for which such Revenue Share is to be paid, and subject to Nxgen policies.
3. Customer Revenue shall not include revenue from Nxgen’s own customer accounts that have subscribed to the Services prior to the Effective Date of this Agreement.
EULA as of the Effective Date
Subject to change by Nxgen, as per the below
These terms and conditions (“Terms of Service” or “Agreement”) govern your access to and use of Nxgen Media Inc.’s Services (as defined below), and website accessible via www.Nxgen.com, including successor domain names or sites (the “Site”), and any and all information, text, graphics, photos, or other materials uploaded, downloaded, or appearing on the Services (as defined below). These Terms of Service are a legally binding contract between Nxgen Media Inc., located at 5 East 8th Avenue, Vancouver BC, V5T 1R6, Canada (“Nxgen”, “we”, “us”), and “Customer” (or “you”). Nxgen Media Inc. provides the Services to you subject to and conditioned upon your acceptance of these Terms of Service.
Nxgen may update and change any or all of these Terms of Service from time to time, in its sole discretion. If Nxgen does so, the updated Terms of Service will be provided in writing to Solution Partner and will become effective and binding on the Customer the seventh business day after they are communicated to Solution Partner.
“Affiliate” means a person or entity that owns, is owned by, or is under common control with a Party, and “control” in this definition means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such entity.
“Authorized Users” means individuals who are authorized by Customer to use the Nxgen Platform with varying levels of control and access as specifiable by Customer and who have been supplied user identifications and password by Customer. Authorized Users may include the employees, consultants, contractors, agents or other designees of Customer and its Affiliates, but shall not include any employee or agent of any Nxgen competitor.
“Customer Content” means all information and data (including text, images, videos, audio, and documents) or any other content in any media and format provided or made available to Nxgen by or on behalf of Customer in relation to the use of the Nxgen Platform and/or the provision of the Purchased Services.
“Fair Use Policy” means the limits placed on usage as described in Section 2.7.
“Nxgen Platform” means Nxgen’s proprietary software delivered through its web platform via the Website www.Nxgen.com that provides for a single log-in, centralized web dashboard that enables Authorized Users to manage and publish to multiple Supported Platforms, including any derivatives, modifications or Updates thereto, if any and including any supplemental software code, documentation, or other material provided to Customer as part of the Services, whether in written or digital format.
“Mentions” means the information, including links, posts, and excerpts, that has been made publicly available and obtained by Nxgen on Customer’s behalf from the Internet, and data derived therefrom, including reports, summaries, graphs, and charts.
“Platforms” means, together, the Nxgen Platform and the uberVU Application, as applicable.
“Purchased Services” means any additional products and services that are ordered by Customer and made available by Nxgen, which may include Query-based Subscriptions, but expressly excludes any Third-Party Services (as defined herein).
“Query” means a search string that an Authorized User uses to define what words and phrases must be present in a Mention for that Mention to be included in the applicable stream, and any such individual Query is referred to as a “Stream”.
“Query-based Subscription” means a subscription whereby Customer pays for either batches of Queries or individual Queries, delivered either through the uberVU Application or through the Nxgen Platform.
“Seat” means a single subscription associated with a single log-in to the Nxgen Platform, assigned by Customer to one Authorized User.
“Solution Partner” shall mean entity agreeing to “Solution Partner Agreement”.
“Supported Platform(s)” means the social networking site(s) currently supported by the Nxgen Platform, including Twitter, Facebook, LinkedIn, and other social networking sites as described via the Website www.Nxgen.com.
“Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any installments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities).
“uberVU Application” means the proprietary software, content, text, images, media, and other materials delivered through the web platform www.ubervu.com(including successor domain names or sites) that summarizes, analyzes, and provides links to the Mentions relevant to all Queries that Customer has set up, including any modifications or Updates (as defined herein).
2. Nxgen Services
2.1 Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement, and solely for Customer’s internal business purposes, Nxgen shall (i) make the Nxgen Platform available to Customer and its Authorized Users for the number of Seats purchased; and (ii) provide Customer with the Purchased Services. The Nxgen Platform and Purchased Services shall collectively be referred to as the “Services”.
2.2 Hosting Services; Service Levels. Nxgen shall use commercially reasonable efforts to host, serve, distribute, and enable the availability of the Platforms and shall ensure that the Platforms are available to Customer in accordance with the service level criteria and performance metrics set forth in Nxgen’s Service Level Agreement published at www.Nxgen.com/legal/enterprise-service-level-agreement.
2.3 Updates and Functionalities. Customer acknowledges that from time to time Nxgen may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, Nxgen shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). Customer acknowledges that the Services interoperate with several Supported Platforms, and that the Services provided are highly dependent on the availability of such Supported Platforms. If at any time any Supported Platforms cease to make their programs available to Nxgen on reasonable terms, Nxgen may cease to provide such features to Customer without entitling Customer to refund, credit, or other compensation (an “API Change”). Subject to an API Change, Nxgen represents that the functionality of the Services shall not be materially decreased during the Term.
2.4 Acceptable Use. Customer shall (i) be responsible for Authorized Users’ compliance with this Agreement, including the Fair Use Policy; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Content and of the means by which it acquired or generated Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, including keeping its password and user name confidential and not permitting any third party to access or use its user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through its account in connection with the Services; (v) promptly notify Nxgen if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Authorized User’s) user name, password, or account; (vi) use the Services only in accordance with applicable laws and government regulations or otherwise access in connection with Customer’s use of the Services; (vii) comply in all respects with all applicable terms of the Third-Party Services that it subscribes to. Customer must not (a) make the Services available to anyone other than its Authorized Users; (b) allow more than one individual Authorized User to use a Seat; (c) sell, trade, or otherwise transfer its Seats to another party; (d) use the Services to store or transmit any content, including Customer Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (e) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (f) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (g) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (h) attempt to gain unauthorized access to the Services or its related systems or networks; or (i) authorize, permit, or encourage any third party to do any of the above.
2.5 Mentions. Customer understands that by using the Services it may be exposed to third-party content, information, and Mentions that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. Unless Customer creates the content of the Mentions, Mentions shall not be considered “Customer Content” under any circumstances. Nxgen has no obligation to preview, verify, flag, modify, filter, or remove any Mentions, even if requested to do so, although Nxgen may do so in its sole discretion. Customer’s use of Mentions is at Customer’s sole risk, and Nxgen shall not be liable to Customer or any third party in relation to Mentions.
2.6 Fair Use Policy. Nxgen may suspend Customer’s access to the Services for abusive practices that degrade the performance of the Services for Customer and/or other customers of Nxgen. Examples of abusive practices include tracking terms such as “love”, “yes”, or “the” or using for redistribution, syndication, or deceitful activities.
2.7 Agency. If Customer operates as an agency (an “Agency Customer”) representing various clients (“Clients”), all terms and conditions of this Agreement shall apply to Agency Customer. Agency Customer will also contractually bind its Clients to the terms of this Agreement and Agency Customer will be liable for any breach of this Agreement by its Clients. In addition, Agency Customer represents and warrants that (i) it has obtained all necessary authorizations, consents, and licenses from each Client to bind Client to this Agreement, and act as Client’s agent and, more particularly, has obtained all necessary approvals for the use and subscription to the Services by, and on behalf of, Client; and (ii) all of Agency Customer’s actions related to this Agreement will be within the scope of Agency Customer’s agency. Agency Customer will defend, indemnify, and hold harmless Nxgen from all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from Agency Customer’s breach of this Section 2.8.
2.8 Third-Party Products and Services. Customer acknowledges that the Services may enable or assist it to access, interact with, and/or purchase services from Supported Platforms and other third parties via third-party websites or applications (collectively, the “Third-Party Services”). When Customer accesses the Third-Party Services, it will do so at its own risk. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and Customer shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between Customer and the relevant third party, and not Nxgen. Nxgen makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by Customer with any such third party.
2.9 Non-Exclusivity. Customer acknowledges that the rights granted to it under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict Nxgen’s right to license, sell, or otherwise make available the Services to any third party or perform any services for any third party.
3. Intellectual Property
3.1 Nxgen Services. As between Customer and Nxgen, Nxgen retains all right, title, and interest in and to the Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of Nxgen’s rights or interests therein or any other Nxgen intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by Nxgen. Customer may from time to time provide suggestions, comments, or other feedback to Nxgen with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Nxgen. Customer shall, and hereby does, grant to Nxgen a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
3.2 Customer Content. Customer hereby grants Nxgen a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.1) license, without a right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content for the purpose of supporting Customer’s use of the Services and providing Services to Customer. Nxgen may also use Customer Content for the purpose of supporting and developing the Platforms, provided that when doing so, Nxgen shall only use Customer Content in an anonymized and aggregated way. Subject only to the limited license expressly granted herein, Customer and its Authorized Users shall retain all right, title and interest in and to the Customer Content and all intellectual property rights therein. Nothing in this Agreement will confer on Nxgen any right of ownership or interest in the Customer Content or the intellectual property rights therein.
4. Nxgen Products and Fees
4.1 Fees. The Customer will pay all fees as and when described per the Solution Partner order forms and invoices (the “Fees”).
5. Confidential Information and Security Requirements
5.1 Confidential Information. Each Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information (as defined below) of the other Party for any purpose outside the scope of this Agreement, and each Party shall limit access to Confidential Information to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving Party containing protections no less stringent than those herein. In this Agreement, “Confidential Information” means all information, data, and financial information relating to the business, commercial strategies, pricing, personnel, customers, products, or services of a Party (the “discloser”) but excludes any information that the other Party (the “recipient”) proves (i) was lawfully in the recipient’s possession before receiving it from the discloser; (ii) is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (iii) is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (iv) was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
5.2 Security Requirements. Nxgen has implemented technical and organizational measures consistent with the prevailing industry standards. However, Nxgen cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third party access to Customer’s account, use, alteration, or disclosure of Customer’s data.
6. Term and Termination
6.1 Term of Agreement. This Agreement shall commence on the date Customer enters into an agreement with Solution Partner (the “Effective Date”) and shall continue in effect for the term described in such agreement (the “Term”). Notwithstanding the foregoing, in no event shall the term of the agreement between Solution Partner and Custer exceed the term agreed to in writing between Nxgen and Solution Partner for Customer’s account.
6.2 Termination for Cause. Any of Nxgen, Solution Partner, or Customer may terminate this Agreement for cause (i) upon 30 days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
6.3 Effects of Termination. Upon termination of this Agreement for any reason, (i) Customer will immediately cease all use of the Services; and (ii) Customer will have no further access to its accounts provided by Nxgen.
6.4 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.
7. Warranty Disclaimer
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO CUSTOMER.EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, NXGEN EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NXGEN SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, NXGEN DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NXGEN OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NXGEN DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE CUSTOMER CONTENT AND MENTIONS, OR ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. NXGEN DOES NOT CONTROL OR VET CUSTOMER CONTENT OR MENTIONS AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. NXGEN IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY SUPPORTED PLATFORMS OR THIRD-PARTY SERVICES ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH SUPPORTED PLATFORMS OR THIRD-PARTY SERVICES. NXGEN EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
8. Mutual Indemnification
8.1 Indemnification by Nxgen. Subject to Customer’s compliance with Section 8.3, Nxgen shall defend Customer from and against any and all third-party claims that the use of the Platforms as permitted hereunder infringes a valid US or Canada patent right or a copyright right, or misappropriates a third party’s trade secret (a “Claim”) and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Customer in connection with any such Claim. Nxgen will have no liability for any Claim to the extent it arises from (i) a modification of the Platforms by or at the direction of Customer or an Authorized User; (ii) use of the Platforms in violation of this Agreement or applicable law; (iii) use of the Platforms after Nxgen notifies Customer to discontinue use because of an infringement or misappropriation claim; (iv) the combination, operation, or use of the Platforms with any other software, program, or device not provided or specified by Nxgen to the extent such infringement would not have arisen but for such combination, operation, or use; or (v) Customer’s use of the Platforms in a manner that is inconsistent with its intended use. For avoidance of doubt, Nxgen’s indemnification obligations in this Section will not apply to third-party content, Supported Platforms, and/or Third-Party Services accessed through the Services and/or Customer Content and/or Mentions. If a Platform has become, or in Nxgen’s opinion is likely to become, the subject of any such Claim, Nxgen may at its option and expense (a) procure for Customer the right to continue using the Platform as set forth hereunder; (b) replace or modify the Platform or certain functionalities to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement. This Section 8.1 sets forth Nxgen’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third party rights.
8.2 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Nxgen, its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that the Customer Content or Customer’s use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (b) relating to, or arising from, Customer Content, or Customer’s breach of Section 2.5, or 2.9; or (c) relating to, or arising from, Third-Party Services (including, without limitation, Customer’s breach of any terms or conditions applicable to any Third-Party Services).
8.3 Indemnification Procedure. The indemnified Party shall (a) promptly give written notice of the Claim to the indemnifying Party; (b) give the indemnifying Party sole control of the defense and settlement of the Claim (provided that the indemnifying Party may not settle or defend any Claim without the indemnified Party’s prior written consent unless it unconditionally releases the indemnified Party of all liability); and (c) provide the indemnifying Party with reasonable cooperation and assistance at the indemnifying Party’s expense.
9. Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL NXGEN’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE SLA.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NXGEN, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL NXGEN BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF NXGEN WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF NXGEN FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF NXGEN, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF EITHER PARTY; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
10.1 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, Nxgen may assign this Agreement in its entirety, without consent of Customer, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.
10.3 Publicity. Customer agrees that Nxgen may use Customer’s name and may disclose that Customer is a customer of the Services in Nxgen advertising, press, promotion, and similar public disclosures, including at trade shows and similar events. In addition to the foregoing, Customer hereby grants Nxgen a non-exclusive license during the Term to list Customer’s name and display Customer’s logo as a Nxgen customer on Nxgen’s website.
10.4 Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
10.5 Amendment. Nxgen reserves the right to modify, supplement, or replace these Terms of Service, effective upon posting on the Nxgen website or notifying Customer otherwise. Customer’s continued use of the Services after the effectiveness of that update will be deemed to represent its agreement with, and consent to be bound by, the new Terms of Service. Except for changes made by Nxgen as described here, no other amendment or modification of these Terms of Service shall be effective unless set forth in a written agreement bearing a written signature by Nxgen and Customer.
10.6 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
10.7 Notices. For purposes of service messages and notices about the Services, Nxgen may place a banner notice across its Platform or website to alert Customer of certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from Nxgen to an email address associated with Customer’s account, even if Nxgen has other contact information. Nxgen may also communicate with Customer or its Authorized Users through its Nxgen account or through other means including email, mobile number, telephone, or delivery services including the postal service about Customer’s Nxgen account or services associated with Nxgen. Customer acknowledges and agrees that Nxgen shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to Nxgen must be delivered by email to legal@Nxgen.com with a duplicate copy sent via registered mail to the following address: Nxgen Media Inc, 5 East 8th Avenue, Vancouver, British Columbia, V5T 1R6; Attention: General Counsel. This email address provided may be updated as part of any update to this Agreement.
10.8 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement, except that any provision which does not give rights or benefits to particular Parties may be waived in writing, signed only by those Parties who have rights under, or hold the benefit of, the provision being waived if those Parties promptly send a copy of the executed waiver to all other Parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
10.9 Governing Law. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in British Columbia, Canada. All disputes under this Agreement will be resolved by the courts of British Columbia in Vancouver. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.