Date of Last Revision: March 6, 2020
Nextmv.io Inc. ("nextmv") may provide you with access to one or more of nextmv's products for evaluation purposes (together with all related documentation provided by nextmv, the "Evaluation Product"), subject to the following Evaluation Partner Terms (this "Agreement"). This Agreement constitutes a legally binding agreement between you and nextmv, effective upon nextmv's acceptance of your offer to enter into this Agreement, which nextmv may provide through email or otherwise in writing (the date of such acceptance, the "Acceptance Date"). PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT OR USING THE EVALUATION PRODUCT, YOU AGREE TO THIS AGREEMENT WITH NEXTMV. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT OFFER TO EVALUATE THE EVALUATION PRODUCT OR REGISTER AN ACCOUNT WITH NEXTMV, AND YOU SHOULD NOT USE THE EVALUATION PRODUCT.
In this Agreement, "you," "your" and "Partner" will refer to you. If you are registering for a nextmv account or using the Evaluation Product on behalf of an entity or other organization, you are agreeing to this Agreement for that entity or organization and representing to nextmv that you have the authority to bind that entity or organization to this Agreement (and, in which case, the terms "you", "your" and "Partner" will refer to that entity or organization).
Subject to the terms and conditions hereof, nextmv grants Partner a non-exclusive, nontransferable, revocable, non-sublicenseable right to access and use the Evaluation Product (the "License") solely for Partner's internal evaluation of the Evaluation Product.
(a) To the extent Partner provides feedback (including suggestions, comments for enhancements, functionality or usability, etc.) ("Feedback") to nextmv on the Partner's experience and results using, and needs and integration requirements for, the Evaluation Product, nextmv will have the full, unencumbered right to incorporate and otherwise fully exploit Feedback in connection with nextmv's products and services. In addition, Partner acknowledges that, as a result of implementing the Phases, nextmv may augment skills, algorithms and knowledge of a general nature and gain familiarity with general concepts relating to product usability, potential use cases, and potential feature requests ("Generalized Learnings").
(b) Notwithstanding anything herein, nextmv shall have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality, and Partner hereby grants nextmv the full, unencumbered right to retain, incorporate and otherwise fully exploit Feedback and Generalized Learnings in connection with nextmv's products and services.
(a) This Agreement shall be effective until the earlier of (a) termination as set forth in Section 3(b); and (b) twelve calendar months following the Acceptance Date.
(b) Each party will have the right to terminate this Agreement for convenience upon five (5) business days prior written notice to the other party. Sections 2(b), 3(b), 4, 5, 6 and 7 will survive any expiration or termination of this Agreement.
(a) Partner retains all rights, title and interest in and to any Partner Confidential Information. nextmv retains all rights, title and interest in and to Evaluation Product and other nextmv Confidential Information.
(b) Partner shall not, directly or indirectly, (i) modify the Evaluation Product or (ii) use the Evaluation Product or any related materials to create any competitive or similar product or otherwise outside of the scope of Section 1. Partner will be responsible for all acts and omissions of its users in relation to the Evaluation Product hereunder.
(c) "Confidential Information" means any information, software and know-how disclosed or made available by either party (the "disclosing party") to the other party (the "receiving party") hereunder. nextmv's Confidential Information includes all software and documentation related to the Evaluation Product that it provides. The receiving party shall: (i) not use the disclosing party's Confidential Information except for the exercise of its rights or performance of its obligations hereunder; (ii) not disclose such Confidential Information to any party, other than its employees and consultants who have a "need to know" for the receiving party to exercise its rights or perform its obligations hereunder; and (iii) use at least reasonable measures to protect the confidentiality of such Confidential Information. In addition, without limiting the foregoing, Partner agrees to take adequate measures to protect the security and confidentiality of the software constituting the Evaluation Product, ensure that all proprietary rights notices are reproduced and applied to any copies of such software, and destroying any copies of such software (and any binary artifacts that may be linked to such software) in Partner's possession or control upon any expiration or termination of this Agreement. If the receiving party is required by law to make any disclosure of such Confidential Information, the receiving party shall first give written notice of such requirement to the disclosing party, and shall permit the disclosing party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation to the disclosing party in seeking to obtain such protection. Information will not be deemed Confidential Information hereunder if such information: (1) is known or becomes known (independently of disclosure by the disclosing party) to the receiving party prior to receipt from the disclosing party from a source other than one having an obligation of confidentiality to the disclosing party; (2) becomes publicly known, except through a breach hereof by the receiving party; or (3) is independently developed by the receiving party without any use of the disclosing party's Confidential Information.
(d) Partner will ensure that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit nextmv to use the same as contemplated hereunder.
Partner expressly acknowledges that the Evaluation Product may not be at the level of functionality, performance or compatibility of a commercial offering and may have defects or deficiencies which cannot or may not be corrected by nextmv. THE EVALUATION PRODUCT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND. NEXTMV DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE EVALUATION PRODUCT, WHETHER EXPRESS, IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 4, IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR (A) LOSS OF PROFITS, REVENUE, OR LOSS OR INACCURACY OF DATA, OR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, OR (B) $1,000, IN EACH CASE EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of California, without regard to the conflicts of law provisions thereof. Neither party shall have the right to assign this Agreement, except that either party may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. Any notices to nextmv in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major overnight delivery courier service to the following address, or such other address as nextmv may be properly specified by written notice hereunder: nextmv.io, Inc., at 1835 Palethorp Street, Philadelphia, PA 19122, Attn: Ryan O'Neil. Any notices to Partner in connection with this Agreement must be sent to Partner's email address provided to nextmv by Partner. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable.