Company reserves the right to withdraw or amend the content, functions, or features of the Services. As may be necessary from time to time, Company reserves the right to restrict access to some or all parts of the Website or Services for maintenance or any other emergency requiring such restrictions.
If you signed up for a plan using your corporate email domain, your organization is Customer, and therefore may modify and re-assign roles on your bot (including your role) and otherwise exercise its rights under the Contract. If Customer elects to replace you as the representative with ultimate authority for the bot, we will provide you with notice following such election and you agree to take any actions reasonably requested by us or Customer to facilitate the transfer of authority to a new representative of Customer.
Individuals authorized by Customer to access the Services (each, an “Authorized User”) may submit content or information to the Services, such as user settings and preferences (“Customer Data”), and these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all Customer Data, please review the Help Center pages for more information about these choices and instructions.
Customer will (a) inform each Authorized User(s) of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; (b) ensure the transfer and processing of Customer Data under the Contract is lawful; and (c) provide all necessary disclosures and obtain a lawful basis for all Customer Data provided to us for processing in connection with the Services and any Contract.
A subscription allows an Authorized User to access the Services. No matter the role, a subscription is required for each Authorized User. A subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each, an “Order Form”). Please see the Help Center for more information on procuring subscriptions and inviting new Authorized Users. Subscriptions commence when we make them available to Customer and continue for the term specified in the Services “check-out” interface or in the Order Form, as applicable. Each subscription is for a single Authorized User for a specified term and is personal to that Authorized User. We sometimes enter into other kinds of ordering arrangements, but that would need to be specified and agreed to in an Order Form. During an active subscription term, adding more subscriptions is fairly easy. Unless the Order Form says otherwise, Customer may purchase more subscriptions at the same price stated in the Order Form and all will terminate on the same date. Check out our Help Center pages for additional information on setting up a bot and assigning roles.
You hereby acknowledge and agree that if you decide to buy our Services, your decision is based on the functionality or features set forth in our documentation as of the date of purchase and not in reliance of the delivery of any future functionality or features.
Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products may not be ready for a full release and therefore are made available “as is,” and WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES IMPLIED BY STATUTE, TITLE, NON-INFRINGEMENT, COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. None of the warranties or contractual commitments set forth in a Contract between you and us will apply to any Beta Product. Your use of the Beta Product is entirely at your own risk. Should Customer encounter any faults with our Beta Products, we would love to hear about them; our primary reason for running any beta programs is to iron out issues before making a new feature widely available.
The more suggestions our customers make, the better the Services become. If Customer sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so Customer grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized User or other Customer personnel.
Customer and its Authorized User(s) shall only use the Website and Services for lawful purposes and in accordance with these Customer Terms. Specifically, Customer and its Authorized User(s) shall not use the Website or Services:
Under no circumstances will Customer or its Authorized User(s) engage in any of the following:
In connection with your use of the Website or Services, you agree that you will not collect, solicit, transmit any content, material or information that:
a) Contains defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
b) Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
c) Infringe on any intellectual property rights of a third party, including any patent, trademark, copyright, or other intellectual property right.
e) Be likely to deceive any person.
f) Promote any illegal activity, or advocate, promote, or assist with any unlawful act.
g) Involve commercial activities or sales, including contests, sweepstakes, and other sales promotions or advertising.
h) Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
Customer must comply with the terms and conditions of the Contract and ensure that its Authorized Users do the same. We may review conduct for compliance purposes, but we have no obligation to do so. We are not responsible for the content of any Customer Data or the manner in which any Customer or its Authorized Users choose to use the Services to store or process any Customer Data. The Services are not intended for and should not be used by anyone under the age of eighteen. Customer must ensure that all Authorized Users are over eighteen years old. Customer is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the Services.
If we believe that there has been a violation of the Contract that can be remedied by Customer’s removal of certain Customer Data we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.
For Customers that purchase our Services, fees are specified at the Services interface “check-out” and in the Order Form(s) — and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. Check out our Help Center pages for more information about payment options. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.
Any credits that may accrue to Customer’s account (for example, from a promotion), will expire following expiration or termination of the applicable Contract, will have no currency or exchange value, and will not be transferable or refundable. Credits accrued to a bot on a free subscription plan will expire if the bot’s plan is not upgraded to a paid plan within ninety (90) days of accrual, unless otherwise specified. For more information on credits, please see the Help Center.
If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, downgrade any fee-based Services to free plans until those amounts are paid in full, so long as we have given Customer ten (10) or more days’ prior notice that its account is overdue. Notwithstanding the second paragraph of the “Providing the Services” section below, Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality and potential loss of access to Customer Data.
We will (a) make the Services available to Customer and its Authorized Users as described in the Contract; and (b) not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorized Users and any processing related to such use or otherwise necessary for the performance of the Contract.
Be assured that (a) the Services will perform materially in accordance with our then-current Help Center pages; and (b) subject to the “Downgrade for Non-Payment” sections, we will not materially decrease the functionality of a Service during a subscription term. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in the sections titled “Termination for Cause” and “Effect of Termination”.
As further described in our Help Center pages, for some of our Services, we also offer specific uptime commitments paired with credits, if we fall short. In those cases, the credits will serve as liquidated damages and will be Customer’s sole remedy for the downtime and related inconvenience. For all Service plans, we will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will endeavor to provide Customer with advance notice (e.g., through the Services), if we think it may exceed five (5) continuous minutes.
The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards at a level not materially less protective than as described in our Security Practices page. Those safeguards will include commercially reasonable measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data. Before sharing Customer Data with any of our third party service providers, we will ensure that each such third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession, custody, or control. We are not responsible for what Customer’s Authorized Users do with Customer Data.
We may leverage our employees, those of our corporate affiliates and third party contractors (the “Nextup Affiliates”) in exercising our rights and performing our obligations under the Contract. We will be responsible for the Nextup Affiliates compliance with our obligations under the Contract.
As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Contract, Customer (for itself and all of its Authorized Users) grants us and the Third Parties a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by the Data Request Policy; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license.
We own and will continue to own our Services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Services. We grant to Customer a revocable, non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Contract and the Customer Terms. All of our rights not expressly granted under these Customer Terms are hereby retained and reserved.
You must not reproduce, distribute, modify, create derivative works of, display, perform, republish, download, store or transmit any of the material on our Website or available through our Services, except as noted below:
As further described below, a paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself expires. Termination of the Contract will terminate all subscriptions and all Order Forms.
Unless an Order Form says something different, (a) all subscriptions automatically renew (without the need to go through the Services-interface “check-out” or execute a renewal Order Form) for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.
We or Customer may terminate the Contract with advanced written notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice to the breaching party of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately with notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law. We may immediately suspend a Customer or its Authorized Users access to the Services for a violation of these Customer Terms, which is also a material breach of the Contract.
Customer may terminate its subscriptions immediately without cause. We may also terminate Customer’s subscriptions without cause, but we will provide Customer with thirty (30) days prior written notice.
Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions immediately after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
We are custodians of Customer Data. During the term of a plan, Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a bot’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control. Please review our Security Practices page for more information on how Customer itself can request deletion.
Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY STATUTE, COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S, NEXTUP’S OR NEXTUP AFFILIATES AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
EXCEPT FOR THE PARTIES INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL CUSTOMER, NEXTUP, OR ANY MEMBER OF THE NEXTUP AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOODWILL, DAMAGE TO REPUTATION, OR ANY OTHER SIMILAR TYPE OF DAMAGES, REGARDLESS OF LEGAL THEORY AND WHETHER SUCH A CLAIM IS IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL TERM TO THIS CONTRACT. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY APPLICABLE LAW.
The Services support logging in using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Services. We therefore will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else if any event leading to such damages, losses or liability would have been prevented by the use of 2FA. Additionally, Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.
We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement that we approve of in connection with, a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer Data; and (b) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedy against us and the Nextup Affiliates for, any Claim Against Customer.
In the event Nextup believes that the Services infringe or are likely to infringe, Nextup may choose at its sole option and expense to: (i) modify the Services so they are non-infringing; (ii) replace the Services with non-infringing Services that are functionally equivalent; (iii) obtain a license for Customer and its Authorized User(s) to continue to use the Services as provided hereunder; or if (i), (ii), or (ii) is not commercially reasonable, then Nextup shall have the right to terminate the infringing Services and refund any fees on pro-rata basis from the date of the Claim Against Customer or infringement claim through the end of any pre-paid period.
Customer shall fully defend and indemnify Nextup and the members of the Nextup Affiliates (collectively, the “Nextup Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to: (i) Customer’s or any of its Authorized Users’ violation of the Contract; (ii) Customer Data; or (iii) any modification, combination, or development of the Services that was not performed by Nextup(a “Claim Against Us”), and Customer shallpay the Nextup Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Nextup Party in connection with or as a result of, and for amounts paid by a Nextup Party under a settlement that Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and the Nextup Parties’ exclusive remedy against Customer for, any Claim Against Us.
Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
In connection with Contract, each party (“Disclosing Party”) acknowledges and agrees that it may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract. The term “Confidential Information” includes anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information, regardless of whether such information is transmitted in writing, electronically, or in some other form. Confidential Information of Customer includes Customer Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
As it pertains to Confidential Information, the Receiving Party will (a) protect the Disclosing Party’s Confidential Information using at least the same measures that the Receiving Party takes to protect its information of a similar nature, but in no event, less than a reasonable degree of care; (b) limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract and who agree to keep such information confidential; and (c) not use or disclose any Confidential Information of the Disclosing Party for any purpose other than in connection with the performance of this Contract. The Receiving Party shall be liable for any breach of this Section by its employees, affiliates, and contractors who it provides with Confidential Information. In the event that the Receiving Party discovers that any Confidential Information has been accessed by an unauthorized party in violation of these Customer Terms (“Security Incident”), the Receiving Party shall promptly provide notice to the Disclosing Party and immediately undertake efforts to investigate, remedy, and mitigate any resulting damages.
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted). Upon request from the Disclosing Party, the Receiving Party shall provide its reasonable assistance in any efforts by the Disclosing Party to seek a protection order or other relief from the required disclosures, at the Disclosing Party's cost. Without limiting the foregoing, please review the Data Request Policy for details on how requests may be made for the disclosure of Customer Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
The sections titled “Feedback is Welcome,” “Our Removal Rights,” “Use of the Services,” “Payment Terms,” “Credits,” “Nextup Affiliates,” “Effect of Termination,” “Data Portability and Deletion,” “Representations; Disclaimer of Warranties,” “Limitation of Liability,” “Our Indemnification of Customer,” “Customer’s Indemnification of Us,” “Limitations on Indemnifications,” “Confidentiality” and “Survival,” as well as all of the provisions under the general heading “General Provisions,” will survive any termination or expiration of the Contract.
Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our Website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. We do not want to list customers who do not want to be listed, so Customer may send us an email to email@example.com stating that it does not wish to be used as a reference.
Except for the obligation to pay fees under the Contract, neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include, without limitation, denial-of-service attacks, a failure or disruption suffered by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.
Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to Customer through the Services (e.g., a bot notification). Notices to Nextup will be sent to firstname.lastname@example.org, except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to email@example.com. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
As our business evolves, we reserve the right to update and change these Customer Terms and the other components of the Contract (except any Order Forms). If we make a material change to the Contract, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions. It is your responsibility to routinely check these Customer Terms for changes as such changes are binding upon you.
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in full force and effect.
Neither party may assign or delegate 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, either party may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the surviving or acquiring entity agrees to be bound by these Customer Terms. Customer will keep its billing and contact information current at all times by notifying Nextup of any changes. Any purported assignment in violation of this section is void. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Any dispute, lawsuit, matter of interpretation, or other proceeding arising out of or in connection with the Contract shall be governed by the laws of the State of Ohio without regard for conflict of law provisions or rules that would result in the application of any other state’s laws.
The parties hereto agree that the United Nations Convention on the International Sale of Goods shall not apply to these Customer Terms. Moreover, the parties hereby agree that the state and federal courts in and for Wood County, Ohio shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Contract or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts and waives any claim that such courts lack such jurisdiction or are an inconvenient forum. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
ANY CAUSE OF ACTION OR CLAIM THAT YOU MAY HAVE THAT ARISES OUT OF OR RELATED TO THESE CUSTOMER TERMS OR YOUR USE OF THE WEBSITE OR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR OTHERWISE SUCH CAUSE OF ACTION OR CLAIM SHALL BE PERMANENTLY BARRED.
The Contract, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users.
However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) the portions of the Customer-Specific Supplement that apply to Customer (if any), (3) the Customer Terms and (4) finally any other documents or pages referenced in the Customer Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Contract, and all such terms or conditions will be null and void. Acceptance is expressly made conditional on Customer’s agreement with these Customer Terms.