Last Modified: June 20, 2023
This Public Cloud Terms and Conditions (this "Agreement") is a binding contract between you ("Customer," "you," or "your") and nextmv.io, inc. ("Provider," "we," or "us"). This Agreement governs your access to and use of the Public Cloud Services as defined below. THIS AGREEMENT TAKES EFFECT WHEN YOU SIGN UP FOR THE SERVICES OR BY ACCESSING OR USING THE PUBLIC CLOUD SERVICES (the "Effective Date"). BY SIGNING UP FOR THE SERVICES OR BY ACCESSING OR USING THE PUBLIC CLOUD SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE PUBLIC CLOUD SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE PUBLIC CLOUD SERVICES. PLEASE READ THESE TERMS OF USE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST PROVIDER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
(a) "Authorized User" means Customer and Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Public Cloud Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Public Cloud Services has been purchased hereunder.
(b) “API Call” means a request to a run endpoint to execute a decision optimization in the Public Cloud Services (“API Call”).
(c) "Public Cloud Services" means the public-cloud hosted decision services provided by Provider under this Agreement that are detailed on Provider's website available at https://www.nextmv.io/docs.
(d) "Customer Data" means, other than Aggregated Statistics, information, data, custom code, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Public Cloud Services
(e) "Documentation" means Provider's end user documentation relating to the Public Cloud Services available at https://www.nextmv.io/docs.
(f) “Open Source Software” means third-party software that is distributed or otherwise made available as “free software”, “open source software” or under a similar licensing or distribution model.
(g) "Order Form" means the Order Form entered into between Customer and Provider that indicates details around fees, rate limits, and all other information related to the specific order.
(h) "Provider IP" means the Public Cloud Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Public Cloud Services, but does not include Customer Data.
(i) "Third-Party Products" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Public Cloud Services.
(a) Provision of Access. Subject to the terms and conditions of this Agreement, Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Public Cloud Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein and associated usage limits. Provider shall provide you the necessary API keys, passwords and access credentials to allow you to access the Public Cloud Services.
(b) Trial. If you are signing up for a trial of the Public Cloud Services, your Trial is subject to the terms in our Terms of Use, hereby incorporated by reference and located in our Terms of Use located at https://www.nextmv.io/terms-of-use (“TOU”).
(c) Public Cloud. You understand and acknowledge the Public Cloud Services are deployed on a public, multi-tenant hosting environment on Amazon Web Services (subject to the terms at https://aws.amazon.com/service-terms/), and that we hereby disclaim any guarantees to any specific security measures. You utilize the Public Cloud Services at your own risk.
(d) Usage Limits. Your usage limits to the Public Cloud Services are determined by rate limits on public runs. You will subscribe to your usage limits based on the pricing listed at https://www.nextmv.io/pricing and the rate limits published at https://www.nextmv.io/docs/reference/nextmv-cloud/rate-limits.
(e) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Public Cloud Services.
(f) Downloadable Software. Use of the Public Cloud Services may require or include use of downloadable software such as our command line interface. Provider grants you a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software we provide as part of the Public Cloud Services and in accordance with our Software License Terms and Conditions located at https://www.nextmv.io/platform-agreement which is hereby incorporated by reference. Any Third-Party Products that consist of downloadable software are subject to the terms of Section 3(e).
(g) Nextmv App Use. Use of the Public Cloud Services may require, include, or enable use of our Nextmv Apps. Provider grants you a non-transferable, non-exclusive, non-assignable limited right for Authorized Users to use the Nextmv Apps we provide as part of the Public Cloud Services in accordance with our Nextmv App Terms located in our Terms of Use (“TOU”) which is hereby incorporated by reference.
(h) Use Restrictions. In addition to other restrictions in this Agreement, you shall not, and shall not permit any Authorized Users to, use the Public Cloud Services, any software component of the Public Cloud Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:
You are entirely responsible for your use of the Public Cloud Services, including ensuring that your use of the Public Cloud Services is according to all applicable laws state, local, federal, and international laws and regulations and our Terms of Use.
(i) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Public Cloud Services and collect and compile data and information related to Customer's use of the Public Cloud Services to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Public Cloud Services ("Aggregated Statistics"). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge that Provider may compile Aggregated Statistics based on Customer Data input into the Public Cloud Services. You agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
(j) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Provider IP.
(k) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any other Authorized User's access to any portion or all of the Public Cloud Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any other Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer or any other Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Public Cloud Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Public Cloud Services; or (iii) in accordance with 5 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Public Cloud Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Public Cloud Services as soon as reasonably possible after the event giving rise to the Public Cloud Services Suspension is cured. Provider retains the right to terminate this Agreement should Provider, at its sole discretion, determine that Customer is violating the listed use restrictions or otherwise threatening conducting illegal activities using the Public Cloud Services. Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
(l) Open Source Software. Any part of the Public Cloud Services that contains or utilizes Open Source Software is distributed and made available under the terms of the open source license agreements referenced in the applicable distribution or the applicable help, notices, about or source files or Documentation. Copyrights and other proprietary rights to the Open Source Software are held by the copyright holders identified in the applicable distribution or the applicable help, notices, about or source files or Documentation. The Website shall not include any code licensed under any “viral” or “copyleft” license.
(a) Terms of Use. The Public Cloud Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Provider's Terms of Use ("TOU") located at https://www.nextmv.io/terms-of-use, as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on https://www.nextmv.io/terms-of-use from time to time, including the TOU.
(b) Account Use. You are responsible and liable for all uses of the Public Cloud Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Public Cloud Services and shall cause Authorized Users to comply with such provisions.
(c) Customer Data. You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Public Cloud Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User's use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(d) Passwords and Access Credentials. You are responsible for keeping your passwords, access credentials, and API Keys associated with the Public Cloud Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
(e) Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Public Cloud Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
(a) Service Levels.
(b) Support. The access rights granted hereunder entitle Customer to email support services unless otherwise agreed upon by the Parties.
(a) Customer shall pay Provider the fees as described on https://www.nextmv.io/pricing and in accordance with Customers Order Form ("Fees") within thirty (30) days from the invoice date without offset or deduction. Provider retains the right to update Pricing from time to time, and will notify Customer of any such Pricing changes 30 days before such change takes place.
(b) Customer will be invoiced monthly or annually based on their use of the Public Cloud Services and in accordance with the Fees and applicable Order Form. The Term will be based on the Order Form and will renew automatically. If Customer’s use exceeds allotted limits in applicable Order Form, Customer will automatically subscribe to the next tier of usage in accordance with the applicable Order Form. Customer Fees will automatically increase during the course of a billing period if Customer exceeds allocated maximum API Calls limit in a Billing Period. In such cases, Fees will increase up to the tier price which corresponds with the number of API calls made in the billing period and Customer will be charged the prorated amount for the overage from the previous month and have their subscription updated moving forward. Tier prices for API Calls will be as indicated in the applicable Order Form. Once increased, your Subscription Fee will not automatically decrease, even if there is a reduction in the number of API Calls made in subsequent billing periods.
(c) Customer shall make all payments hereunder in US dollars on or before the due date.
(d) If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend, in accordance with Section 2(k), Customer's and all other Authorized Users' access to any portion or all of the Public Cloud Services until such amounts are paid in full.
(e) All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
Confidential Information. From time to time during the Term, Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Privacy Policy. Provider complies with its privacy policy, available at https://www.nextmv.io/privacy ("Privacy Policy"), in providing the Public Cloud Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Public Cloud Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy. We use Stripe, Inc. to process payments and is subject to Stripe’s End User Terms (https://stripe.com/legal/end-users) and Privacy Policy (https://stripe.com/privacy).
(a) As between Customer and Provider, (a) Provider owns all right, title, and interest, including all intellectual property rights, in and to the Public Cloud Services, including all improvements, enhancements or modifications thereto, any software, applications, inventions, or other technology developed in connection with the Public Cloud Services, Software, or support, and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data, including any code that is expressly developed by the you using the Public Cloud Services under this Agreement. The Software Development Kit (SDK) definitions that the Customer compiles its source code against are considered third party Open Source Software dependencies. The Provider maintains ownership and control over the compiled binaries it provides as part of its platform, including the command line interface (CLI) and plugins, unless expressly stipulated in this Agreement.
(b) If Customer or any of Customer’s employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Public Cloud Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between Customer and Provider governing such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby assigns to us on Customer’s behalf, and shall cause Customer’s employees, contractors, and agents to assign, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
(a) Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Public Cloud Services are in compliance with the TOU.
(b) THE Public Cloud Services ARE PROVIDED "AS IS" AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE Public Cloud Services, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(a) Provider Indemnification.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights; or (ii) based on Customer's or any Authorized User's negligence or willful misconduct or use of the Public Cloud Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The exclusions and limitations in this Section 11 do not apply to the parties' obligations under 10.
(a) Term. The term of this Agreement begins on the Effective Date and continues until terminated according to this Agreement and the applicable Order Form. Public Cloud Services that are specified to automatically renew will renew for up to 1 additional successive 1-year terms according to the applicable Order Form unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current services period.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(c) Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP. No expiration or termination of this Agreement will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 12(d), Sections 5, 6, 10, 11, 14, 15, 16, and 17, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination [or expiration] of this Agreement, will survive any such termination [or expiration].
Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications on our website or by direct email from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Public Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide at least thirty (30) days' advance notice of changes to any service level that Provider reasonably anticipates may result in a material reduction in quality or services.
Export Regulation. The Public Cloud Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Public Cloud Services or the software or technology included in the Public Cloud Services to, or make the Public Cloud Services or the software or technology included in the Public Cloud Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Public Cloud Services or the software or technology included in the Public Cloud Services available outside the US.
US Government Rights. Each of the software components that constitute the Public Cloud Services and the Documentation is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Public Cloud Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
Customer shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the Provider’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the Provider, which consent shall not be unreasonably withheld. Provider may, without Customer's consent, include Customer's name and other indicia in its lists of Provider's current or former customers of Provider in promotional and marketing materials. Customer further agrees to submit to a case study, customer review, customer quote, or other material to the Provider for marketing purposes.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Agreement as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Nextmv, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Website, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Nextmv are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND PROVIDER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PROVIDER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Nextmv is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at info@Nextmv.io. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Nextmv should be sent to 1835 N Palethorp St, Philadelphia PA, 19122 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Nextmv and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Nextmv may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Nextmv or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Nextmv is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Nextmv and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Nextmv agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement.
f. Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
g. Severability
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Agreement will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Agreement to the contrary, Nextmv agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Website, you may reject any such change by sending Nextmv written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to these Agreement).
(i) Miscellaneous
This Agreement, along with the agreements incorporated herein by reference, constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at https://www.nextmv.io and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Public Cloud Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.
