TERMS AND CONDITIONS
The products and services in this quote are provided to the individual or entity identified as
“Customer” by NxtWash, LLC (“NxtWash”) under the terms of (1) this quote, and (2) the NxtWash Standard Product and Service Agreement. (collectively, the Agreement”). Customer and Company are each a “Party” and together the “Parties”.
Any capitalized terms not otherwise defined in this quote have the meanings set forth in the NxtWash Standard Product and Service Agreement.
In the event of a conflict between any Agreement document, this order of priority applies:
1. This quote
2. The NxtWash Standard Product and Service Agreement
By signing the quote, NxtWash and Customer each acknowledge that it has read and understands this Agreement and agrees to be bound by the terms of this Agreement. This Agreement is effective upon the date of last signature to quote (the “Effective Date”). The individuals signing quote
NxtWash Standard Product and Service Agreement
This NxtWash Standard Product and Services Agreement (these “Terms”), together with the quote, order form, or similar document referencing these Terms (the “Order Form” and, together with these Terms, this “Agreement”) constitute a legally binding contract between NxtWash, LLC, a Delaware limited liability company (“NxtWash”) and the customer identified on the Order Form (“you”, “your”, “Customer”) with respect to your use of NxtWash’s product offerings (“Products”) and the NxtWash software as a service offering set forth in an Order Form, including all Updates thereto and associated
service offerings, including websites, mobile applications and online services (collectively, the “Service”).
1. DEFINITIONS. As used in this Agreement:
1.1“Access Credentials” means login information, passwords, and security controls through
which Users access and use the Service.
1.2“Affiliate” means with respect to either Party on any applicable date of determination, any other entity directly or indirectly controlling, controlled by or under common control with such Party as of such date.
1.3“Aggregate Information” means any information, data and/or metadata derived from use of the Service that is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person and does not identify any NxtWash customer or user or company-specific name and that is stripped of all persistent identifiers, such as device identifiers, IP addresses and cookie IDs.
1.4“Customer Content” means all information, content, text, data and other materials
transmitted, uploaded, or stored by Customer or its Users in the Service. Customer Content expressly excludes all NxtWash Offering functionality, and all NxtWash-supplied information, content, text, data and other materials.
1.5“Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions and use of the Service, and which are made available to Customer by NxtWash with the Service.
1.6“Intellectual Property Rights” means any and all now known or hereafter existing: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark and service mark rights and other similar rights in Marks, together with all goodwill related thereto; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
1.7“Marks” means trademarks, service marks, logos, product names, service names, design
marks, slogans and other indicia of origin.
1.8“Parties” means NxtWash and Customer. NxtWash and Customer are each a “Party”.
1.9“Professional Services” means the Professional Services available from NxtWash as
described in an Order Form.
1.10 “Subscription Term” means the period of time set forth in an Order Form.
1.11 “NxtWash Offerings” means, collectively, the Products, Services, Professional Services,
and the NxtWash Technology, Products.
1.12 “NxtWash Technology” means the computer software, computer code, scripts,
application programming interfaces, methodologies, templates, tools, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions, third-party services, and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the Service.
1.13 “Updates” means all upgrades, enhancements, improvements, maintenance releases,
additions, and modifications, of the Service made generally commercially available to NxtWash’s customers at no additional charge as part of the Service during the applicable Subscription Term.
1.14 “Users” means: (a) the employees and contractors/consultants of Customer, excluding
Customer Affiliates; (b) that are granted access by Customer to use the Service; and (c) which have a bona fide need to use the Service for Customer’s internal business purposes. Users may include resellers that Customer authorizes to access the Service on behalf of Customer.
2. SERVICE
2.1 Service. Subject to and in accordance with this Agreement, including, without limitation,
payment of all applicable fees, NxtWash will use reasonable commercial efforts to support and make the Service available for use and access by Customer.
2.2 Additional Orders by Affiliates. Affiliates of Customer may place additional orders for
access to the Service by executing a separate Order Form with NxtWash in which each Customer’s Affiliate agrees to pay additional implementation and subscription fees to NxtWash and to be bound by all terms and conditions of this Agreement. Customer shall remain primarily responsible for the compliance of its Affiliates with the terms of this Agreement, including without limitation payment of all fees due thereunder.
2.3 Customer Access. Customer acknowledges and agrees that Customer’s and its Users’
access and use of the Service is dependent upon access to telecommunications and Internet services. Customer and Users will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Service, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. NxtWash will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software. NxtWash may provide notice to Customer from time to time of the version(s) of those products required in order for Customer and its Users to use the Service (e.g., supported browser versions).
2.4 Modifications to the Service. NxtWash reserves the right to modify the Service from time to time, including without limitation implementing Updates. NxtWash may condition the implementation of new features, functionality or other modifications to the Service on Customer’s payment of additional fees.
2.5Third Party Features, Services and Content. Customer acknowledges and agrees that use of any third-party features, services, content, or materials as may be supplied by NxtWash either in or accessible through the Service shall be subject to any applicable third-party terms and conditions made available to Customer with such third-party features, services, content, or materials (the “Third Party Agreement”), and NxtWash shall have no liability for any damage or loss caused by such third party features, services, content, or materials or for the use or performance thereof. Customer hereby acknowledges and agrees that each Third Party Agreement applies to Customer’s and all Users’ use
of any third party features, services, content, or materials, and Customer agrees to comply, and require its Users to comply, with all Third Party Agreements.
2.6Customer Assistance. Customer shall provide all assistance, technical information and
decisions to the NxtWash, as reasonably required by NxtWash in sufficient time to facilitate NxtWash’s performance under this Agreement. Customer agrees to work closely with NxtWash to provide regular information and feedback so NxtWash can effectively perform under this Agreement. Customer will have sole responsibility for and will ensure the accuracy, completeness, and correctness of all information provided to NxtWash, including information necessary for NxtWash to perform under this Agreement. Customer represents and warrants that there are no agreements or arrangements, written
or oral, by which Customer is bound that would be breached upon execution or performance of this Agreement by either Party, that would restrict, interfere or conflict with the either Party’s obligationsunder this Agreement or that would diminish either Party’s rights granted under this Agreement. Customer shall comply with all the terms, conditions, obligations, and restrictions in this Agreement. Customer shall at all times conduct its activities under this Agreement in full compliance with all laws, rules and regulations, including those with respect to privacy, data, in each case that are applicable to the use of NxtWash Offerings by Customer, including, without limitation, the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the Federal Communications Commission’s rules issued thereunder, including 47 C.F.R. § 64.1200 (collectively, the “TCPA”), the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101 et seq., and the Federal Trade Commission’s Telemarketing Sales Rule issued thereunder, 16 C.F.R. §§ 310.1 et seq. (collectively, the “TSR”), federal and state laws relating to invasion of privacy or do-not-call registries (“DNC Laws”), federal and state campaign finance laws (including required disclaimer, disclosure, or “Paid for by” laws, such as the California Text Message DISCLOSE Act, or AB 201), and any analogous or similar foreign, local, municipal or state laws and regulations (“Applicable Law”) and any terms of use and other
terms, guidelines, and policies (including advertising policies) including under any Third Party Agreements.
3. ACCESS GRANT; OWNERSHIP
3.1 Access Grant. Subject to Customer’s compliance with the terms and conditions contained in this Agreement and the Documentation, NxtWash grants to Customer during the applicable Subscription Term a non-exclusive, non-transferable, worldwide, revocable, non sublicensable right to allow Users to access and use the Service for Customer’s internal business purposes, subject to the use limitations in the relevant Order Form.
3.2 Customer Content. Customer grants to NxtWash a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of Customer’s Intellectual Property Rights, to use, copy, execute, host, store, reformat and display the Customer Content for the sole purposes of enabling NxtWash to provide the Service to Customer and its Users hereunder for all other purposes of performing under this Agreement. In addition, Customer agrees that NxtWash’s third-party contractors and service providers may exercise the licenses granted to NxtWash in this Section 3.2 for the sole purpose of performing services for or on behalf of NxtWash in connection with the provision of the Service to Customers. Customer acknowledges and agrees that Customer shall use secure encrypted connection(s) to transmit Customer Content when communicating with and/or using the Service.
3.3 Users. Customer may grant access to the Service only to those Users who have been
assigned unique Access Credentials. Customer shall be solely responsible for ensuring that all Users comply with the terms of this Agreement. Customer will promptly notify NxtWash of any suspected, alleged or actual violation of the terms and conditions of this Agreement and will cooperate with NxtWash with respect to: (i) investigation by NxtWash of any suspected, alleged or actual violation of this Agreement; and (ii) enforcement of this Agreement. NxtWash may suspend or terminate any User’s access to the Service upon notice to Customer in the event NxtWash reasonably determines that such User has violated any terms of this Agreement. Customer will at all times be responsible for
all actions taken under a User’s account and for any breach of this Agreement by its Users. All acts and omissions of Users are deemed to be those of Customer.
3.4 Feedback. In the event Customer or its Users provide NxtWash any ideas, thoughts,
criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the Service (collectively “Feedback”), including in response to any product plans or roadmaps shared with Customer, Customer hereby grants to NxtWash a worldwide, royalty-free, fully paid, perpetual, exclusive, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of Confidential Information,
Intellectual Property Rights or otherwise, and NxtWash may incorporate into the Service and/or any other service, product, technology, enhancement, documentation or other development incorporating or derived from any Feedback (“Improvement”) with no obligation by NxtWash to license or make available the Improvement to Customer or any other person or entity.
3.5 Ownership. The NxtWash Confidential Information, (as defined below), NxtWash
Offerings, and the Documentation, and all worldwide Intellectual Property Rights in each of the foregoing and all modifications thereto and derivative works thereof, are the exclusive property of NxtWash and its suppliers. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by NxtWash and its suppliers. Nothing in this Agreement will be deemed to grant to Customer any right to receive a copy of software underlying the Service, or any other NxtWash Offering, in either object code or source code form. NxtWash’s name and logo, and all NxtWash product and services names, including the name of the Service and any product or service associated with it, are trademarks of NxtWash or its licensors, and no right or license to use them is
granted in this Agreement. Further, Customer acknowledges and agrees that NxtWash owns all right, title and interest in and to the Aggregate Information it develops and may use Aggregate Information to provide and improve NxtWash’s products and services, and for sales, marketing and other business purposes.
4. PRODUCTS
4.1 Modifications. NxtWash will provide Products to Customer as set forth in an Order
Form. Customer may, from time to time, purchase additional Products by entering into additional order forms, which are all subject to NxtWash’s acceptance, which may be withheld in NxtWash’s discretion. NxtWash may revise pricing for any Product option or revise or discontinue any Product options at any time. Product purchases are not refundable unless expressly permitted by NxtWash in writing. Permitted refunds, for whatever reason, of any payment received by Customer will take place using the same method of payment Customer chose during the checkout process and cannot be amended
after Customer’s order has been placed.
4.2 Order Cancellation. NxtWash shall also have the right to refuse or cancel any or all of
Customer’s orders if NxtWash determine, in NxtWash’s sole discretion, that Customer is in breach of this Agreement. NxtWash reserves the right to refuse or cancel any such orders whether or not the order has been confirmed. NxtWash will use commercially reasonable efforts to notify Customer of any cancellation and Customer will not be charged for any canceled orders.
4.3 Shipping. NxtWash will arrange shipping of Products to the address indicated in
Customer’s order using a carrier of NxtWash’s choice, in NxtWash’s sole discretion.
4.4 Risk of Loss. Risk of loss to Products passes to Customer upon delivery to the carrier.
NxtWash does not provide insurance on Products during delivery. The costs of shipping and handling will be shown on Customer’s purchase receipt. NxtWash will not be responsible for delays in delivery, including without limitation if due to events beyond its reasonable control, including without limitation shortage of materials, transportation failure, or acts of God.
4.5 Product Warranty. Product warranties are provided by the manufacturer and NxtWash
will use commercially reasonable efforts to pass through manufacturer warranties to Customer. No warranty will apply to any Product that that have been (i) modified, altered, tampered with (including removal of any serial numbers), reconfigured, or adapted without NxtWash’s written consent, including any Products that have been dismantled; (ii) mistreated or used in a manner other than in accordance with the Product documentation; (iii) repaired by any third party not approved by NxtWash; (iv) improperly installed; (v) used with equipment, software or other products or services not provided by NxtWash; (vi) used directly or indirectly in breach of this Agreement, including in supporting activities
prohibited by Applicable Law; (vii) discontinued or deprecated; or (viii) subject to events,
circumstances or causes beyond its reasonable control, including electrical surges or operation of the Product in an unsupported, third-party environment. Without limiting any other provisions of this AGreement, NxtWash does not warrant that any Product description or other information, material, or content accessible using the Product will be accurate, complete, reliable, current, or error-free. Customer’s sole and exclusive remedy for any claim arising from the purchase of any Product will be to submit the Products to NxtWash for evaluation.
4.6 Inspection. Customer must examine any Products when Customer receives them. If
any item is damaged or missing, Customer must either reject the delivery or notify NxtWash immediately via email at Sales@nxtwash.com.
4.7 Not for Resale or Export. Customer acknowledges that Products are not for resale or
export and Customer represents and warrant that Customer is buying Products for Customer’s own business use only and not for resale or export.
4.8 Delivery Restrictions. Delivery is restricted to physical addresses in the United
States, and, unless otherwise authorized by NxtWash in writing, in NxtWash’s sole discretion, Customer represent and warrant that all purchases are intended for final delivery within the United States.
5. CUSTOMER RESPONSIBILITIES
5.1 Registration Data; Access Credentials. Customer shall: (1) keep all Access Credentials secure and confidential; (2) not allow any of Customer’s Users to provide their Access Credentials to anyone else; and (3) not permit others to use Customer’s Access Credentials. Customer will immediately, but in any case within forty-eight (48) hours of discovery, notify NxtWash if it learns of any known or suspected unauthorized access to or use of the Service, Customer’s account or any Access Credentials assigned to Customer or its Users, or if Customer learns of any other known or suspected breach of security or the confidentiality of information with respect to the Service (each, a “Security Incident”). NxtWash reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action NxtWash deems reasonable to ensure the security of the Service and Customer’s Access Credentials and account, including terminating Customer’s access or the access of any of Customer’s Users, changing passwords, or requesting additional information to authorize activities related to Customer’s account.
5.2 Restrictions. Customer will not, directly or indirectly, and will ensure that its Users do not: (a) provide access to or use of the Service or Documentation to any third-party technical contractor or consultant, or to any third party that is not an authorized User; (b) copy, adapt, alter, modify, improve, translate or create derivative works of any NxtWash Offering or Documentation; (c) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code or underlying ideas or algorithms to all or any portion of the Service; (d) license, sublicense, sell, resell, rent, lease, transfer, assign, sublicense, distribute, time share or otherwise commercially exploit or otherwise provide or make the Service or Documentation available to any third party (including, without limitation, offering the Service to third parties on an application service provider or time-sharing basis, or otherwise providing third-party hosting, or third-party application integration or application service provider-type services, or for any similar services); (e) use the Service in any manner inconsistent with this Agreement; (f) challenge, directly or indirectly, the right, title and/or interest of NxtWash in and to any NxtWash Offering or Documentation, or any NxtWash registration related thereto; (g) without NxtWash’s prior written consent conduct any technical security integrity review, penetration test, or vulnerability scan involving the Service; or (h) access the Service by any means other than through the interface that is provided by NxtWash for use in accessing the Service. Additionally, Customer may not use any NxtWash Offerings: (i) except in accordance with Applicable Laws; (ii) for spamming, sending chain letters, junk mail, or using a distribution list to communicate with a person who has not given Customer specific permission to contact them in such a manner; or (iii) to display, transmit or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content of any kind.
5.3 Customer Content Restrictions. Customer is responsible for providing all Customer Content. Customer represents, warrants and covenants: (a) that Customer has all rights and licenses necessary to upload the Customer Content to the Service, and to grant the rights to use the Customer Content for purposes of performing the Service for Customer; and (b) that the Customer Content or Customer’s actions with respect to Customer Content that involve or relate to the NxtWash Offerings: (i) will not and does not infringe any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right; (ii) will not and does not violate the privacy, publicity, or other right of any third party, including with respect to any individual, or otherwise violate any other law, statute, ordinance or regulation; (iii) will not and does not disclose or provide (a) payment card data of any third party, (b) information protected by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., or (c) information which, if transmitted to NxtWash, would infringe upon or violate the legal rights of any individual under any law, agreement, fiduciary relationship, or principle of law or equity; and (v) will not and does not enable, permit, advocate or encourage any illegal activity or any conduct that would, or would be likely to, violate any applicable law or regulation or give rise to civil liability.
5.4 Additional Requirements. (a) Use. Without limiting any other provision in this Agreement, Customer agrees that it will not use, and will not permit any other person or entity to use, any NxtWash Offerings to: (a) defraud any third party or to distribute obscene or other unlawful materials or information; (b) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (c) transmit any content that is illegal or that relates to or references illegal activities, drugs, or alcohol; or (d) send or store material that is defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or that infringes upon or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). Customer further agrees that it will not use, and will not permit any other person or entity to use, the Services to contact any emergency services, to annoy or harass any person or entity, or in any manner that otherwise violates any federal, state or local law, regulation or ordinance.
(b) Applicable Law. Without limitation to any other provision of this Agreement, Customer agrees that it will only use, and permit others to use, the NxtWash Offerings in a manner that is consistent with the terms of this Agreement and Applicable Law. For the avoidance of doubt, with respect to any messaging capabilities of the NxtWash Offerings, Customer may only use the NxtWash Offerings to initiate or cause to be initiated messages if the subscriber or customary user of the telephone number to be contacted has provided the consents that are required by Applicable Law for the type of message sent and has not revoked such consent. Customer agrees to promptly honor any request by a message recipient to not be contacted or any other revocation of consent to be contacted via any particular manner, for any particular purpose or at any particular times. To the extent any message constitutes an advertisement or serves a marketing purpose and to the extent required by Applicable Law, Customer agrees to obtain and review the applicable federal and state do-not-call registries as frequently as required by Applicable Law and to refrain from initiating messages to any telephone number appearing on any such registry. Customer shall be solely responsible for any and all messages sent through the use of the NxtWash Offerings and NxtWash shall have no liability for any such messages.
(c) No Spoofing. Customer shall not take any action to mask, spoof or alter caller identification information in violation of any applicable federal or state law, including, without limitation, the TSR, the FCC’s Truth in Caller ID Rules, 47 C.F.R. §§ 1601 et seq., and analogous state laws and regulations.
(d) No Reverse Engineering for Messaging. Customer acknowledges that the NxtWash Offerings do not have the capability to automatically send messages, and Customer agrees that it shall not alter, modify, reconfigure or reverse engineer the NxtWash Offerings or use the NxtWash Offerings, or any third-party code, files, script or program to automatically send messages or in any manner that violates the terms of this Agreement or Applicable Law.
5.5 Customer Policies. Customer shall cause all of its users and customers to agree to terms of service, terms of use, privacy policy or similar restrictions relating to the use of the NxtWash Offerings (collectively, “Customer Policies”). Customer agrees that NxtWash will be made a third-party beneficiary of any such Customer Policies. Customer Policies shall be consistent with and at least as restrictive and protective of NxtWash as the terms of this Agreement and the Privacy Policy. Customer shall submit a copy of any Customer Policy to NxtWash for approval upon NxtWash’s request and agrees to provide any updates or modifications to any such Company Policies to NxtWash prior to adoption for prior approval.
6. PROFESSIONAL SERVICES
6.1 Professional Services. NxtWash will use commercially reasonable efforts to perform Professional Services in accordance with the Order Form. NxtWash’s sole and exclusive obligation and Customer’s sole and exclusive remedy for any breach of the foregoing will be for NxtWash to use commercially reasonable efforts to promptly reperform the applicable Professional Services.
6.2 Customer Responsibilities. Customer and its third-party contractors will make available in a timely manner, at no charge to NxtWash, all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources required by NxtWash as NxtWash reasonably requires to perform the Professional Services. Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness, consistency, facilitation, or provision thereof to NxtWash by Customer or any third party.
7. FEES AND PAYMENT
7.1 Fees. In consideration for the rights granted hereunder, Customer will pay to NxtWash the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Customer is responsible for payment of all subscription fees for all Users granted access during the Subscription Term, whether or not such User has actually accessed the Service during the Subscription Term. NxtWash reserves the right to increase the subscription fees on each renewal of the Subscription Term by providing Customer with at least sixty (60) days’ prior written notice.
7.2 Payment. Unless otherwise specified in any Order Form, all subscription fees are invoiced monthly in arrears from the Effective Date, and all invoices issued by NxtWash will be due and payable thirty (30) days from the date of NxtWash’s invoice. All fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any fees that are not paid when due are subject to interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event of any dispute of an invoice, Customer shall notify NxtWash in writing within fifteen (15) days of receipt of the invoice of the disputed amount and the reason for the dispute, and the Parties agree to negotiate promptly and in good faith a reasonable settlement of the disputed amount. Amounts not disputed within such fifteen (15) day period will be deemed valid and may not later be disputed.
7.3 Taxes. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with this Agreement or Customer’s receipt or use of the Service, except for taxes based on NxtWash’s net income, employees or property. In the event that NxtWash is required to collect or pay any tax for which Customer is responsible, NxtWash will invoice Customer and Customer will pay such taxes and duties directly to NxtWash unless Customer provides NxtWash with a valid tax exemption certificate authorized by the appropriate taxing authority.
8. CONFIDENTIALITY
8.1 Confidential Information. NxtWash (as the “Disclosing Party”) may from time to time during the term of this Agreement disclose to Customer (as the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, the existence and terms of this Agreement, and other confidential or proprietary information regardless whether disclosed orally, in writing or visually, or that is learned by the Receiving Party from observing the Service and any other NxtWash Offering (“Confidential Information”). For the avoidance of doubt, NxtWash’s pricing, Service functionality, features, capabilities and product road maps, Service, Documentation and NxtWash Offerings all constitute Confidential Information of NxtWash.
8.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a bona fide need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will: (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both Parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 8 and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the Disclosing Party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek: (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret; or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement.
8.3 Exceptions. The Receiving Party’s obligations under this Section 8 will not apply to any portion of the Disclosing Party’s Confidential Information, if the Receiving Party can provide contemporaneous documentation that such information: (a) was lawfully known to the Receiving Party prior to the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is or has become through no fault of the Receiving Party generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, and without reliance on any individual who has or had access to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly in writing, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
8.4 Return of Confidential Information. The Receiving Party shall permanently erase all electronic copies of a Disclosing Party’s Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party shall certify in writing signed by an officer of the Receiving Party that the Receiving Party has fully complied with its obligations under this Section 8.4.
9. WARRANTIES
9.1 Warranties by Both Parties. Customer represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement, and this Agreement is the valid and binding obligation of Customer, enforceable against Customer in accordance with this Agreement’s terms; (b) the person signing this Agreement on Customer’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines, including, without limitation, those related to privacy and data security.
9.2 DISCLAIMER OF WARRANTIES. ALL NXTWASH OFFERINGS ARE PROVIDED ON AN “AS-IS, WHERE-IS” BASIS AND NXTWASH MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE NXTWASH OFFERINGS OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND NXTWASH EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS, AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NXTWASH SHALL NOT BE RESPONSIBLE FOR ENSURING, AND DOES NOT REPRESENT OR WARRANT THAT: (I) ANY NXTWASH OFFERING WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) ANY NXTWASH OFFERING WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED, OR THAT THE RESULTS OBTAINED FROM ANY USE THEREOF WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN ANY NXTWASH OFFERING CAN BE FOUND OR CORRECTED. NXTWASH EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER’S AND ITS USERS’ USE OF AND ACCESS TO THE NXTWASH OFFERINGS ARE IN ACCORDANCE WITH APPLICABLE LAW.
10. INDEMNIFICATION
10.1 Customer Indemnity. Customer shall at Customer’s expense defend, indemnify and hold NxtWash, its affiliates, employees, officers, and directors harmless from and against any liability, loss, or damage (including reasonable attorneys’ fees) incurred in connection with any claim, demand, suit, or proceeding arising out of or in connection with any allegations of, based upon, or in connection with: (a) breach by Customer of any representation, warranty, covenant, or obligation under this Agreement; (b) infringement, dilution, or other violation of any Intellectual Property Right or other personal or proprietary rights of any individual or entity resulting from the use of Customer Content by NxtWash, including the Marks; (c) failure by Customer or its personnel to comply with Applicable Law; (d) a message that is sent by Customer or any of its Users without the consent required under Applicable Law, including the TCPA, TSR or analogous state laws; (e) any violation of Applicable Law (which includes, without limitation, the TCPA, TSR, DNC Laws and analogous state laws) or any other legal obligation by Customer or any of its Users; (f) the Customer Policies, including any breach or enforcement thereof; (g) any public disclosure of, or insufficient security that leads to the disclosure of, Customer Content that occurs as a result of an act or omission of Customer or any Users; or (h) any other acts or omissions of Customer or its personnel or Users.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NXTWASH’S AGGREGATE TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO NXTWASH UNDER THE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT, AND SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
11.2 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NXTWASH HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY (A) LOSS OF ACTUAL OR ANTICIPATED PROFITS, (B) LOSS OF BUSINESS, (C) LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, (D) LOSS OF USE, (E) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR DEVELOPMENT SERVICES, (F) ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, REGARDLESS WHETHER (I) ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, (II) SERVICECORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (III) SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
11.3 Limitation of Action. To the maximum extent permitted by Applicable Law, no action (regardless of form) arising out of this Agreement may be commenced by Customer more than one (1) year after the cause of action has accrued.
11.4 Allocation of Risk. Each Party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the Parties – including the disclaimer of warranties in Section 9.2, the limitation of liability in Section 11.1, and the exclusion of consequential and related damages in Section 11.2 –, and that the other Party would not enter into this Agreement without these limitations.
12. TERM AND TERMINATION
12.1 Term. The term of this Agreement will commence on the Effective Date and remain in effect until all Order Forms have terminated or expired, or until earlier termination of this Agreement as provided in this Section 12 (the “Term”). The initial term for each Order Form shall be as set forth therein, and shall automatically renew for successive periods of equal length as the initial term, unless otherwise set forth in the Order Form. Upon termination of this Agreement for any reason, all Order Forms shall immediately terminate. However, termination or expiration of any Order Form shall not necessarily cause the termination or expiration of this Agreement.
12.2 Termination. (a) This Agreement or any Order Form may be terminated by NxtWash if Customer fails to timely make any payment due hereunder and fails to cure such default within fifteen (15) days after receiving notice in writing from NxtWash of such failure (regardless whether NxtWash avails itself of its right to suspend the Service pursuant to Section 12.4 hereof). (b) This Agreement or any Order Form may be terminated by either Party (the “Non-breaching Party”) upon written notice containing an explanation of the alleged breach to the other Party (the “Breaching Party”), if the Breaching Party breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party.
12.3 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other, in the event that: (a) the other Party becomes insolvent or unable to pay its debts when due; (b) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed by a third party, such petition is not removed within ninety (90) days after such filing; (c) the other Party discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of the other Party’s creditors.
12.4 Suspension of Services. At any time during the Term, NxtWash may immediately upon notice to Customer, and in NxtWash’s sole reasonable discretion, suspend NxtWash’s performance under this Agreement and any Order Form or may suspend any and all Users’ access to the Service for any of the following reasons: (a) breach or threatened breach of Section 5; (b) a threat to the technical security or technical integrity of the Service exists as determined by NxtWash in its sole and absolute discretion; or (c) if any amount due under any Order Form is not received by NxtWash within fifteen (15) days after it was due, and NxtWash provided written notice of same.
12.5 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to NxtWash prior to the effective date of termination. In the event of termination by NxtWash pursuant to Sections 12.2(b), 12.2(c) or 12.3, all amounts payable by Customer under this Agreement and all Order Forms will become immediately due and payable.
12.6 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of an Order Form or this Agreement, Customer’s and its Users’ rights to access and use the Service will immediately terminate, and Customer and its Users will immediately cease all use of the Service. NxtWash may destroy any Customer Content in its possession or control; provided, that Customer shall have at least thirty (30) days following the effective date of the expiration or termination of an Order Form or this Agreement to download its Customer Content from the Service. Notwithstanding the foregoing and to the extent permitted by law, NxtWash will not provide access to the Customer Content from Customer’s account if NxtWash believes that such Customer Content violates the rights of NxtWash or third parties, or if Customer has not paid all undisputed fees owing to NxtWash. NxtWash shall have no liability to Customer or any third party for any termination or expiration of this Agreement. Upon confirmed and countersigned notice of disassociation, the customer agrees to pay NxtWash the new retail value of any and all equipment provided by NxtWash at a discount.
12.7 Survival. Sections 1, 3.4, 3.5, 7, 8, 9.3, 10, 11, 12.5, 12.6, and 13 shall survive any termination or expiration of this Agreement.
13. GENERAL
13.1 Governing Law; Jurisdiction. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Each Party hereby consents to the personal jurisdiction and venue in the state and federal courts serving the State of Colorado in Denver, Colorado. The Parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The Parties irrevocably waive any right to a trial by jury. The English language version of this Agreement shall govern in lieu of any translation.
13.2 Export; Anti-Corruption. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing: (a) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) Customer shall not permit Users to access or use Service in violation of any U.S. export embargo, prohibition or restriction. Both Parties agree to fully comply with the provisions of the United States Foreign Corrupt Practices Act and/or the Organization for Economic Cooperation and Development prohibiting foreign bribery and improper payments. Without limiting the generality of the foregoing, each Party represents and warrants that it has not and shall not at any time during the Term of the Agreement pay, give, or offer or promise to pay or give, any money or any other thing of value, directly or indirectly, to or for the benefit of any government official, political party, or candidate for political office, or any other person, firm, corporation or other entity, with knowledge that some or all of that money or other thing of value will be paid, given, offered or promised to a government official, political party or candidate for political office, for the purpose of obtaining or retaining any business, or to obtain any other unfair advantage, in connection with this Agreement.
13.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.4 Waiver; Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
13.5 Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein, constitute the entire agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as expressly stated in this Agreement. Neither Party shall have any remedy in respect of any untrue statement made by the other upon which that Party relied in entering into this Agreement, unless such untrue statement was made fraudulently. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form, or dependent upon any oral or written, public or private comments made by NxtWash with respect to future functionality or features for the Service. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13.6 Attorney’s Fees. Customer shall pay on demand all of NxtWash’s reasonable attorney fees and other costs incurred by NxtWash to enforce this Agreement or to collect any fees or charges due NxtWash under this Agreement following Customer’s breach of its payment obligations under this Agreement.
13.7 No Assignment. Customer shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of NxtWash, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. NxtWash may freely assign this Agreement. NxtWash may engage third party subcontractors, service providers or agents in performing NxtWash’s duties and exercising its rights hereunder. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.
13.8 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement, if, and only if, such delay is caused by a labor dispute, strike, shortage of materials, fire, earthquake, flood, terrorism, Internet disruption, failure of an ISP, utility or telecommunications disruption, denial of service attack, failure of supplier, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts under the circumstances to notify the other Party of the cause of such delay and to resume performance as soon as commercially practicable.
13.9 Independent Contractors. NxtWash’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
13.10 No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the Parties to this Agreement may enforce it.
13.11 Notices. All notices under this Agreement shall be in writing. All notices shall be given and deemed effective: (a) by delivery in person; (b) by a nationally recognized next day courier service with tracking notice of delivery; (c) by first class, registered or certified mail, postage prepaid with tracking notice of delivery; or (d) by electronic mail to the address of the Party specified in this Agreement or an Order Form with explicit acknowledgment of receipt by the intended recipient (other than an automated response). Each Party may change its address for receipt of notice by giving notice of such change to the other Party.
13.12 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of this Agreement or any Order Form delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement or the Order Form.
13.13 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole; (b) “or” has the inclusive meaning frequently identified with the phrase “and/or”; (c) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation”; and (d) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The Parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either Party, and that ambiguities shall not
