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Terms and Conditions

 

Last updated: November 23, 2021 

1. Your Relationship with Us 

These Terms and Conditions (the “Terms”) govern the relationship, and serve as a legally binding agreement, between you and us, Nextech AR Solutions Corp. (“Nextech”, “we”, “our” or “us”). 

These Terms set forth the terms and conditions on which you may access and use any and all services related to the various augmented reality (AR) services provided through https://www.nextechar.com/, including but not limited to the ARitize App, Map Dynamics, HoloX, ARWAY, LiveX, and the 3D modelling and serving provided through https://www.threedy.ai/ and our other related websites, services, applications, products and content, from time to time (collectively, the “Services”). While these Terms apply to all of the Services, as referenced herein, some Services may have additional terms and conditions which are specific to such Services. Any reference to the “Services” includes a reference to any part of the Services. For purposes of these Terms, “you” and “your” means you the individual or entity using the Services (and any individual, agent, employee, representative, network, parent, subsidiary, affiliate, successor, related entities, assigns, or all other individuals or entities acting on your behalf), at your direction, under your control, or under the direction or control of the same individual or entity who controls you. 

From time to time, we may enter into an order form with you regarding the provision of certain Services (each, an “Order Form”). Order Forms may be delivered via our website or apps, or by electronic or print copy, as applicable. Each Order Form, once executed by both you and us, forms an essential part of these Terms. In the event of any necessary conflict between these Terms and any Order Form, the terms of the Order Form shall govern. 

These Terms, including any Order Form entered into between us that reference these Terms, and the other agreements explicitly ‎referenced and incorporated herein, including our Privacy Policy, constitute our entire agreement with regard to the subject ‎matter of these Terms. All prior and contemporaneous negotiations, order forms, proposals, and agreements, whether oral or ‎written, between us with regard to the subject matter of these Terms are expressly superseded ‎by these Terms.  

2. Acceptance of Terms. 

By accessing or using our Services, you confirm that: (a) you can form a binding contract with us; (b) you accept these Terms; and (c) you agree to comply with these Terms. If you are agreeing to these Terms on behalf of partnership, company, corporation, or other entity, you represent and warrant that you have the all necessary authority to agree to these Terms and to bind such entity. If you do not have such authority, you must cease accessing or using the Services.  

You understand and agree that we will treat your access or use of the Services or any part thereof, including your creation of an account, as acceptance of these Terms and our Privacy Policy which is available here https://www.nextechar.com/nextech-ar-solutions-privacy-policy. You should print off or save a local copy of the Terms and Privacy Policy for your records. 

3. Changes to the Terms 

We reserve the right in our sole and absolute discretion to revise and update these Terms from time to time. ‎All changes are effective immediately upon posting and apply to your continued access to and use of the ‎Service. We may post reminders and summary information about material changes to these Terms, including ‎where there are substantial amendments that affect your rights and obligations, but it is your responsibility to ‎review them. You agree to periodically review these Terms in order to be aware of any such changes and your ‎continued use shall mean your acceptance of any such changes, whether given notice or not. ‎ 

Your use of the Services now, or your continued use of the Services following the implementation of updated ‎Terms, will indicate acceptance by you of such Terms or modifications. If you do not agree to these Terms as applicable from time to time, you must immediately stop accessing or using the Services. 

4. Services 
  1. Quality. Nextech will perform Nextech’s obligations under these Terms with promptness and ‎diligence, in a good and proficient manner, in accordance with applicable industry standards and ‎practices, and with no less than the standard of professional skill, care and diligence customarily ‎applied by contractors providing or performing similar work and providing similar services for similar ‎projects in North America, but in any event at all times in accordance with these Terms.‎ 

  2. Applicable Laws. Nextech will at all times comply with all applicable laws in connection with the performance ‎of the Services.  Nextech will obtain and at all relevant times maintain all work permits and other licenses, ‎certificates, authorizations and approvals required under applicable law as are necessary for Nextech to perform ‎lawfully all obligations under these Terms.‎ 

  3. Subcontracting. Nextech may subcontract these Terms, the Services or any portion of it or them to any third party without your prior ‎written consent, provided that, with respect to each subcontractor (a) Nextech will ensure that any ‎subcontracted Services are provided in compliance with these Terms by individuals qualified and competent to ‎provide them (b) any breach, act or omission by any of Nextech’s subcontractors in connection with these Terms will ‎be deemed a breach, act or omission by Nextech, and Nextech will be fully responsible therefor.‎ 

  4. Malware. Nextech will use industry-standard, diligent and reasonable efforts to prevent the Services or any product of the Service (each, a “Deliverable”) from containing, and will not intentionally include in any ‎Deliverable, any malicious code. Upon notice by you that a Deliverable as delivered by us to you contains malicious code (a) to the extent the Deliverable consists of Nextech’s ‎or its subcontractors’ original work, Nextech will promptly, at its own cost or expense, repair or replace the Deliverable ‎ so that it does not contain the malicious code; and (b) to the extent the Deliverable consists of third ‎party materials (including open source software), Nextech will work with you to remove or repair the Deliverable ‎to mitigate against the malicious code.‎ 

  5. Your Responsibilities. Nextech and you will work together to determine any materials, items, information, data, resources, tasks, services, and other assistance that you are required to ‎obtain, procure, perform or provide in order for Nextech to perform hereunder (each, a “Client Item”).‎ You will perform all Client Items on or prior to the applicable target dates and you will direct your ‎personnel to promptly and efficiently cooperate with any reasonable requests made by Nextech in connection ‎with these Client Items.  ‎If, you have failed or will fail to perform any Client Items on or prior to the applicable any target date provided by Nextech, you will promptly notify Nextech, and in any event within not more than five business days after you ‎know the same, providing details thereof to Nextech so that Nextech can determine the actual or reasonably ‎likely effect of the failure or inaccuracy on Nextech’s performance of the Services and delivery of Deliverables. ‎Any failure of you under this provision will constitute a valid reason for any subsequent failure to ‎perform by Nextech that is related thereto, and will exempt Nextech from any liability associated with any such ‎resultant failure.‎ 

  6. Services in Beta. From time to time, we may offer early access to Services that are currently in their beta version (“Beta Services”).  Your access to and use of Beta Services may be subject to additional terms and conditions. We make no representations that any Beta Services will be made available to you or at all, and we reserve all rights to discontinue your access and the general availability of Beta Services at any time. You understand and agree that all Beta Services are being provided on an “as is” basis and that due to the nature of Beta Services, the Beta Services may contain, bugs, errors, and other defects and that your use of any Beta Services is at your own risk.  

  7. Your End Users. Individuals and entities who are authorized by you to access our Services are your “End Users”. You acknowledge and agree that you are solely responsible for your End Users use of our Services, including the acts and omissions of your End Users, and that any breach by your End Users of these Terms will be deemed a breach by you of these Terms. In the event that any of your End Users are found to be in breach of these Terms, we may, in our sole discretion, suspend or terminate their or your access to the Services. 

5. Your Account and Security 

In consideration of your use of the Services, you hereby agree to: (a) provide true, ‎accurate, current ‎and complete information about yourself and your business as requested by any registration forms on the Service ‎‎‎(“Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, ‎accurate, ‎current and complete. By providing Registration Data to us through the Services, you will ‎provide personal account ‎information. You hereby agree to be fully responsible ‎for: (w) all use of your User ‎Account; (x) any action that takes place using your account by any ‎person or automated process; (y) ‎maintaining the confidentiality and security of your account ‎and passwords; and (z) immediately notifying ‎us upon any unauthorized use of your password or ‎account, or if you know of any other breach of security in relation to the Services. ‎We will not be liable for any loss or ‎damage arising from any unauthorized use of your ‎account(s).‎  

6. Fees and Refunds 

The following terms and conditions apply to all of our paid Services, including paid Services for which we may offer a free trial from time to time.  

The Services may include various offerings and features (for example, basic or premium tiers of service and one time purchases or add-ons), with different benefits, conditions, and limitations. Your level of access to a Service, including with respect to offerings and features is determined by the tier of subscription package or the specific add-ons you may purchase from time to time. You can find the specific details regarding fees and features on the applicable website or application for each Service. We reserve the right to change the offerings, features and Services, from time to time in accordance with these Terms.  

  1. Payment via Online Account: For certain Services, you will be asked to provide payment information, including your credit card number and billing address, during the account registration process. By completing your registration for the Service, you authorize us to charge you all applicable subscription and one-time fees plus applicable taxes in accordance with the Services you select. Before completing your order, you will be presented with details regarding all associated recurring subscription fees (“Subscription Fees”), the applicable subscription period (“Subscription Period”) and the overall term of the subscription (“Subscription Term”) for those Services being provided on a subscription basis (each, a “Subscription”) and details regarding any one-time Services and all associated fees (“One-Time Fees”). You will be charged immediately upon commencement of the Service and for your Subscriptions, automatically at the beginning of each Subscription Period during the Subscription Term. For example, if the Subscription Period is a month and the Subscription Term is two years, you will be charged at the start of each month for a term of two years for this Subscription.  

  2. Payment via Order Form: For certain Services, we will require the completion of an Order Form to order Services. Each Order Form will set out the particular fees and payment schedule for the Services being provided under the Order Form. Services may be charged in various ways, including on a Subscription basis, a one-time set fee basis, or on a time and materials basis. You agree to pay all fees set out in each Order Form in accordance with these Terms and the terms and conditions set out in each Order Form. In the event of any conflict between these Terms and the terms and conditions set out in an Order Form, the terms and conditions set out in the Order Form will prevail to the extent necessary to resolve the conflict.   

  3. Subscription Auto-Renewal: In order to ensure that you will not experience any interruption or loss of ‎Services, your Subscription includes an automatic renewal option by default, ‎according to which, unless you disable the auto-renewal option or cancel your ‎Subscription no less than thirty (30) days prior to the then current Subscription Term’s expiry, the Subscription ‎will automatically renew upon the end of the then current Subscription Term, ‎for a renewal period equal in time to the original Subscription Term (each, a “Renewal ‎Subscription Term”) and, unless otherwise notified to you, at the same price ‎‎(subject to any changes to applicable taxes and excluding any discount or other ‎promotional offer provided to you on a limited time basis). Accordingly, unless ‎either you or us cancel the Subscription prior to its expiration, we will ‎automatically charge you the applicable Subscription Fees upon or immediately ‎prior to the expiration of the then current Subscription Term. If you wish to ‎avoid such auto-renewal, you must cancel your Subscription (or disable the auto-‎renewal option), prior to its expiration, at any time by contacting us at ‎support@nextechar.com. Except as expressly set forth in these Terms, ‎in the case you cancel the Subscription, during a Subscription Term, the ‎Subscription will not renew for an additional Subscription Term, but you will not be refunded ‎or credited for any unused period within the Subscription Term however, you will continue to be able to access the Services until the end of the then current Subscription Term. ‎ 

  4. Payment Information: You must provide and at all times must maintain accurate, complete, and current billing ‎information, including your postal/zip code, credit card number, and credit ‎card expiration date. We may suspend or terminate your account ‎or access to the if your offered payment method (e.g., credit ‎card) cannot be processed. In addition, orders may not be accepted from certain jurisdictions. By providing a payment method, you expressly authorize us and ‎our third party payment processors to charge the applicable fees on said payment method, as well ‎as taxes and other charges related thereto, all of which depend on the Services you utilize. You agree that we may charge any unpaid amounts to your provided ‎payment method.‎ If you provide a payment method and our charge results in an overdraft, chargeback, or other ‎fee from your bank, you alone are responsible for that fee.‎ If you become aware of a potential breach of security to your billing ‎information (such as credit card loss or theft), you must notify us immediately.‎ In the event that we are unable to collect any fees owed by you, we may, at our sole discretion attempt to collect at a later time or suspend or terminate your access to the Services, at any time, without advance notice to you. 

  5. Free Trial. If you register for a Free Trial of our Service, we will make those aspects of our Service which are noted as subject to the free trial on our website available to you free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service as noted on our website; or (b) the start date of any purchased Subscription or other Services ordered by you; or (c) the termination of these Terms pursuant to the termination provisions below. Additional trial terms and conditions may appear on the trial registration website. Any such additional terms and conditions are incorporated into and form an essential part of these Terms by reference. 

  6. Modifications to Services and Pricing:  

    i. We reserve the right at any time and from time to time to change, modify, add, remove, ‎suspend, cancel, or discontinue any aspect of the Services in our sole discretion. If ‎the Services you paid for are materially altered and you are accessing the Services under a Subscription, you will receive notice by email and ‎will have the opportunity to receive a pro rata refund if you do not agree to the changes or cancel your Subscription.‎ 

    ii. In addition, we may modify our fees from time to time. In the event you are accessing the Services under a Subscription and the Subscription fee for the Services you are using has been modified such that you are required to pay a ‎different fee than at the time you entered into these Terms, you will (a) be notified at the email address for you on file at least thirty ‎‎(30) days before you are billed at the different rate, and (b) have ‎the opportunity to cancel your Subscription. If you do not cancel your Subscription before the ‎next billing renewal date, you will be deemed to have accepted the new fees.‎ 

  7. REFUNDS: SUBJECT TO SECTION 12) OF THESE TERMS, UNLESS PROHIBITED BY APPLICABLE LAW, ALL PURCHASES, INCLUDING RECURRING CHARGES, ARE FINAL AND NON-REFUNDABLE.  

  8. Invoiced Services. Unless an Order Form or Subscription provides otherwise, Nextech will invoice monthly for all fees and expenses then due and payable under each Order Form, Net 30 days. 

  9. Taxes. Quoted Fees are exclusive of and you will be responsible for paying any applicable goods, services, surcharges, regulatory assessments, duties, levies, or value added taxes on any Services and ‎Deliverables you receive under these Terms. You may not, except ‎to the extent required by applicable law, withhold any amounts on payments to be made hereunder.  If you ‎believe that you have any obligation to withhold any amount under applicable law, you will notify Nextech thereof and will ‎cooperate in good faith with Nextech in its efforts, to the extent permitted by applicable law, to recover any such ‎amounts from the applicable authorities.‎  The invoiced amount and amounts charged to the Payment Method may therefore ‎fluctuate as applicable taxes, which we do not control, fluctuate and you agree to pay any and all applicable taxes and government fees. ‎ 

  10. Currency. Unless otherwise stated in an Order Form, Nextech will invoice you in United States dollars.  

  11. Late Fees. In the event that you fail to pay an invoice due to Nextech within thirty (30) days ‎of the invoice date (the “Late Payment”), you agree without any prior notice, to ‎pay a late fee at the interest rate of one and a half percent (1.5%) of the outstanding ‎balance per month, compounding monthly, or the maximum rate permitted by law, whichever is highest. In ‎addition, Nextech shall be entitled to recover from you all costs, fees, and expenses ‎actually incurred for the recovery of the outstanding amounts due under the ‎Agreement, including all actual legal fees and costs on a solicitor-client basis. Notwithstanding any of ‎the foregoing and in addition thereto, in the event of any Late Payment, Nextech may, ‎in its sole discretion, suspend your access to the Services or terminate these Terms in ‎whole or in part, without any liability whatsoever and without prejudice to our right ‎to claim all amounts due by you to us. ‎

7. Intellectual Property Rights; Limited Licence

  1. License to the Service and Deliverables. Nextech hereby grants to you a limited, perpetual, worldwide, revocable, non-exclusive, non-sublicensable and non-transferrable license, to use the Service and the Deliverables, throughout your enterprise in accordance with these Terms. You acknowledge that your use of the Service or the Deliverables for any purpose not expressly permitted by these Terms is strictly prohibited. Without limiting the restrictions in Section (13): (a) neither our Service, nor the design or layout of the Services, nor any part or component of any of the foregoing, may be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent; and (b) you cannot create any work of authorship or proprietary right based on the Services. You will only use the Services and Deliverables as may be expressly provided in these Terms or to the extent permitted by law or (if applicable) relevant open source licences.

  2. Title to Service and Deliverables. Nextech and its third-party licensors retain all rights, title and interests, including intellectual property rights, in and to the Service and the Deliverables, including all software, computer code, tools, patches, updates, images, text, graphics, illustrations, logos, photographs, images, pictures, audio, sound effects, sound recordings, features, functionality, design, presentation videos, visual effects, music, user accounts, objects, and “look and feel” of the Services. You will not acquire any rights, including without ‎limitation any intellectual property rights and registrations, in the Service or the Deliverables.  All rights not expressly granted to you ‎hereunder are expressly reserved by Nextech and our licensors and are protected by copyright, trademark, patent, trade secret, and any other proprietary rights.  The Service and Deliverables are licensed and not sold.  You ‎acknowledge and agree that, by operating the Service or Deliverables, benchmark results and ‎usage data may be collected by Nextech.‎

  3. Title to Client Materials. Title to any documents, equipment, materials, data, Client Items or intellectual property rights supplied by or on behalf of you to or for the benefit of Nextech in relation to the provision of any Services hereunder (collectively, the “Client Materials”) will remain with you and your licensors at all times.  At no time will title to the Client Materials pass to Nextech.

    i. License to Use.  You hereby grant Nextech a non-exclusive, royalty-free, worldwide, sublicenseable, license during the Term to use the Client Materials to perform the Services and expressly not for any collateral purpose.

    ii. Clarification.  For greater certainty, where the Client Materials include materials licensed you by a third party, Nextech’s access to or use thereof may be conditional upon Nextech’s execution of a prescribed form of written agreement.

  4. Return. Nextech will return to you all of the Client Materials in Nextech's possession or control: (i) at any time upon request by you (on your understanding that, if the Client Material is Client Item, Nextech may thereby be prevented from performing hereunder); (ii) after Nextech's completion of the work for which the Client Material was provided or on behalf of you to or for the benefit of Nextech; and (iii) upon expiration or termination of the relevant Order Form or these Terms.

  5. Links. Where our Services may contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval or endorsement by us of those linked websites or information you may obtain from them, and we are not responsible for any consequences, losses, or damages that may arise from your access or use of such sites or resources. For clarity, if you choose to access any such sites or resources, you do so at your own risk.

  6. Advertising. We have the right, without notice, to insert advertising data into the Services, so long as this does ‎not ‎involve our transmission of any of your personal information in contravention of the Privacy Policy.  ‎If you ‎elect to have any business dealings with any party whose products or services may be ‎advertised on the ‎Services, you acknowledge and agree that such dealings are solely between you and ‎such advertiser and we will ‎not be a party to, or have any responsibility or liability related thereto.  You ‎acknowledge and agree that no ‎such advertising may be construed as an endorsement by us of any ‎such products or services advertised.

  7. Third party or Open Source IP. ‎You acknowledge and agree that Nextech’s project methodology ‎includes the use of third party and open source intellectual property rights, and that Nextech may include the same in the Service or a ‎Deliverable without your express prior written consent by concurrently delivering the applicable license ‎agreement therefor and by complying at all times with such license.  For greater certainty, this provision applies to ‎‎“open source” or “free” software or materials, whether or not the license thereto is copyleft, provided that where any Deliverable is commercial off-the-shelf software, it shall be sufficient if the documentation made available to you by Nextech contains a reference to the open source or free software used therein.‎ 

     

8. Confidentiality

  1. Definition.Confidential Information” means any and all data or information in any form (including all electronic, magnetic, physical, intangible, visual and ‎oral forms), whether or not such information has been marked or indicated as confidential, that (i) is, at the time of ‎its delivery to or access by the other party, not generally known to any person without an obligation of ‎confidentiality, (ii) by its nature or the nature of its disclosure, would reasonably be determined to be confidential, ‎or (iii) is marked or indicated as proprietary or confidential (without requiring such marking), and in any event ‎includes Personal Information, trade secrets, know-how, supplier and customer information (whether past, present, ‎future and prospective), specifications, strategic plans, source code and related data, designs, drawings, financial ‎information, marketing information, information as to business opportunities (including strategies and research and ‎development), consultation records and plans, engineering information, and third party data;. 

  2. Confidentiality. In connection with these Terms, each of us (in this Section, the “Disclosing Party”) has furnished or may furnish or has made or will make available to the other (in this Section, the “Receiving Party”) Confidential Information.  At all times during and after the term of these Terms, the Receiving Party will protect the Confidential Information using the same degree of care as it would use to protect its own similarly confidential information, but in any event never less than a reasonable degree of care, and will take all reasonable steps to safeguard the Disclosing Party’s Confidential Information from unauthorized disclosure as set out in these Terms. 

  3. Obligations. The Receiving Party will not use or disclose the Confidential Information of the Disclosing Party except as strictly necessary in the performance of its obligations under these Terms or in enforcing or defending its rights or obligations under these Terms (collectively, in this Section, the “Purpose”) or as expressly permitted by this Section.  Without limiting the generality of the foregoing, the Receiving Party will not directly or indirectly do any of the following: 

    i. use any of the Disclosing Party’s Confidential Information for any purpose other than the Purpose; 

    ii. copy or reproduce any of the Disclosing Party’s Confidential Information, except as strictly necessary to carry out the Purpose; 

    iii. disassemble or decompile any technology, software or hardware included in the Disclosing Party’s Confidential Information, or otherwise attempt to reverse engineer the design, function or, if applicable, source code of any such Confidential Information, except (i) as strictly necessary in carrying out the Purpose, and (ii) if this prohibition is limited or restricted in any way by any applicable law, it will only apply to the maximum extent permitted by such law; or 

    iv. disclose any of the Disclosing Party’s Confidential Information except in the following: 

    limited disclosure strictly to those of the Receiving Party’s directors, officers, consultants, legal representatives, accountants, advisors and personnel and permitted subcontractors (i) to whom disclosure is necessary to carry out the Purpose, and (ii) from whom the Receiving Party is owed legally-binding obligations of confidentiality at least as strict as those set out in these Terms (collectively, in this Section, the “Further Recipients”), provided that, at all times, the Receiving Party will be responsible to the Disclosing Party for the acts and omissions of the Further Recipients as if such acts and omissions were its own, or 

    disclosure limited strictly to the extent the Receiving Party or any of its Further Recipients is required (including, without restriction, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other similar process) by any law to disclose any of the Disclosing Party’s Confidential Information, provided that it (unless prohibited by such applicable law) gives the Disclosing Party advance written notice as soon as practicable in the circumstances so that the Disclosing Party may contest the disclosure or seek an appropriate protective order, and further provided that it cooperates reasonably and in good faith with the Disclosing Party in its efforts to prevent, restrict or contest such required disclosure. 

  4. Return or Destruction. Upon termination of these Terms or upon the written instruction of the Disclosing Party, the Receiving Party will return or destroy all originals and copies in any form of the Disclosing Party’s Confidential Information in its or its Further Recipients’ possession or control and will destroy or cause to be destroyed all originals, copies or other reproductions or extracts of such Confidential Information.  For the purposes of this Section 8)d), information stored in electronic form will be deemed to be destroyed when the charged party performs a commercially reasonable application or operating system level delete function with respect to such data, provided that it does not thereafter directly or indirectly perform or permit any recovery or restoration the same by any means (including by way of undeletion, archives, backups or forensics). Receiving Party will provide Disclosing Party with a certificate confirming the deletion of all Confidential Information in its possession pursuant to this Section 8)d). Each party will be responsible for ensuring that its Further Recipients fully comply herewith. 

  5. Ownership. Except as set out in these Terms, no party grants to the other any right, title or interest in or to its Confidential Information. 

  6. Exceptions. The obligations of confidentiality set out in this Section will not apply in respect of uses or disclosures of information where: 

    i. the Disclosing Party consents in writing; or 

    ii. the Receiving Party can establish with documentary evidence that, other than as a result of a breach of these Terms, the information: 

    1. is available in the public domain; 

    2. was disclosed to it by a third party without violating confidentiality obligations; or 

    3. was already independently known by it or was subsequently and independently developed by it; 

    in each case without any direct or indirect use or access to such Confidential Information whatsoever. 

  7. Information Security Management. In addition to any particular requirements set out in any ‎Order Form, Receiving Party will implement and maintain an information security management program with ‎standards that are no less rigorous than accepted industry practices, and will comply with all Applicable ‎Laws to protect Disclosing Party’s Confidential Information from unauthorized access, destruction, use, ‎modification, or disclosure.   

  8. Personal Information. Without limiting any of the foregoing, each Receiving Party will use all reasonable efforts to (a) guard against unauthorized access to, use and disclosure of all Personal Information received by it as part of the Confidential Information; and (b) fully comply with all Applicable Laws applicable to the Disclosing Party’s Confidential Information or to its Personal Information, including the Personal Information Protection and Electronic Documents Act (Canada), as it may be amended or replaced by successor legislation from time to time, and all regulations promulgated thereunder.

  9. Press Release. Notwithstanding the confidentiality provisions above, the parties may issue a public announcement, issue a press release, conduct media interviews, or conduct other publicity activities announcing the existence of the business relationship between the parties and the general nature of the Services being provided by Nextech to you. As such, the parties hereby grant one another a reciprocal and limited license to use each other’s name and trademarks in any such publicity activities provided that such use is at all times in compliance with any brand guidelines provided for such brand assets. 

Representations and Warranties

  1. Corporate Authorization and Status. Each party represents and warrants as follows:‎ 

    i. it has full power and authority to enter into and perform its obligations under these Terms;‎ 

    ii. the individual or individuals signing these Terms on behalf of the party has or have been properly ‎authorized and empowered to enter into these Terms;‎ 

    iii. it is in good standing in its jurisdiction of incorporation and that all of its constating and organizational ‎documents are complete, fully executed and in order; and 

    iv. such party’s execution and performance of these Terms will not conflict with, or result in the breach ‎of, any express or implied obligation or duty (contractual or otherwise) that such party now or in the ‎future owes to any other person.‎ 

  2. You. You represent, warrant, and covenant as follows:‎ 

    i. You are the sole owner or have a valid license to all intellectual property rights in and to the Client ‎Materials necessary to grant the rights provided under these Terms;‎ 

    ii. the Client Materials do not violate any applicable laws including without limitation any applicable ‎deceptive trade practices, fair competition, or consumer protection laws;  

    iii. you are solely responsible for the conduct of your End Users and their compliance with these Terms; ‎and 

    iv. nothing in the Client Materials advocates for any illegal activity, is defamatory, or otherwise violates ‎the legal rights of any third-party, howsoever arising. 

  3. Nextech. Nextech represents, warrants, and covenants as follows:‎ 

    i. Nextech is the sole owner or has a valid license to all intellectual property rights in and to the ‎Services and Deliverables necessary to deliver them in accordance with the provisions of these Terms; 

    ii. The Services will be performed by persons who have the qualifications, knowledge, skill and ‎ability to perform these services; and 

    iii. All software contained in any Deliverables will be free and clear of all Claims, liens, charges and ‎encumbrances. 

  4. Disclaimers. The representations and warranties expressly set forth in these Terms are in lieu of all other ‎conditions, representations and warranties (express, implied or statutory), including representations and ‎warranties of merchantable quality or fitness for a particular purpose.  To the extent that any Deliverable ‎‎(including the hosted elements thereof) depends on the public internet, (a) any representation made regarding ‎access, performance, speeds, reliability, availability, use or consistency of thereof is on a “commercially ‎reasonable efforts” basis when it relates to the public internet; and (b) without limiting any obligations relating ‎to security hereunder, data, messages, information or materials sent over the public internet may be ‎intercepted by third parties.‎

10. Feedback

While we are continually working to develop and evaluate our own product ideas and features, we also pay attention to the interests, feedback, comments, and suggestions we receive from our user community. If you choose to contribute by sending us any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, “Feedback”), then regardless of what your accompanying communication may say, in order to avoid any misunderstandings the following terms will apply to the Feedback. Accordingly, by sending Feedback to us, you agree that: 
  1. We have no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;

  2. Feedback is provided on a non-confidential and non-proprietary basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way;‎

  3. You irrevocably grant us an irrevocable, non-exclusive, worldwide, perpetual, royalty-free, sub-licensable (including via multiple tiers of sublicensing), transferrable licence to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified;

  4. You have been deemed to have warranted to us that you have or own all the necessary legal rights to upload, post, or submit such Feedback and grant us (and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns) the licence to the Feedback, and that the Feedback does not and will not violate any law or the intellectual property, privacy, publicity, or other rights of any person;

  5. You understand and agree that you are fully responsible for any Feedback you submit or contribute, ‎and you are fully responsible and legally liable, including to any third party, for such content, its accuracy, and ‎your rights to use it; and

  6. You waive any moral rights or other rights of authorship in and to any Feedback in favour of the Company, including any rights you may have in the altered or changed Feedback even if it is no longer ‎agreeable to you.

11. Equipment Requirement 

To use the Services, you may need certain hardware, software, capabilities and other resources (including a suitable connection to the Internet). You are solely responsible for procuring and maintaining such resources at your own cost.  

12. Updates, Interruption, and Termination 
  1. Updates: From time to time, we have the right (but not obligation) to provide updates (patches, new features, etc.) to the Services for free or for a fee. You understand that your access to certain features of the Services might be affected by such updates. You also understand that such updates may affect the necessary system specification required to use the Services. In such case, you are responsible for any necessary equipment to continue to access the Services. 

  2. Interruption: You acknowledge that the Services or any part thereof may be interrupted for maintenance or reasons beyond our control, and we cannot guarantee that the Services will be uninterrupted. We will not be liable for any interruption of the Services, delay, or failure to perform resulting from any causes whatsoever. Additionally, the Services may be unavailable depending on geographic location. To the maximum extent permitted by applicable law, we reserve the right to discontinue the Services at any time in our sole discretion, for any reason, or for no reason, with or without notice.

  3. Suspension or Termination: To the extent allowable by applicable law, we reserve the right to suspend or terminate your access to the Services at any time for any reason, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your account which would or might (i) cause damage to or impair the Services or infringe or violate any third party rights (including intellectual property rights), or (ii) violate any applicable laws or regulations. Termination or suspension of your account also entails the termination or suspension of your licence to use the Services, or any part thereof. If we suspend or terminate your account, we will notify you by email. If we terminate your account for a reason other than your breach of these Terms or applicable law and you purchased a Subscription, we will refund you the prorated portion of your prepayment for the greater of (i) the then-current month or (ii) ‎other applicable time period for your Subscription.‎ You agree and understand that your continued use of the Services is at our sole and absolute discretion and ‎that you will not seek to hold us liable for any suspension, restriction, or termination of our use of the Services.‎

13. Code of Conduct

As a condition of your access to and use of the Services, you agree that you will use the Services only for lawful purposes in accordance with these Terms and all applicable laws and regulations. You may not and you may not permit any of your End Users to: 

  1. access or use the Services if you do not have all necessary authority required to agree to these Terms; 

  2. violate, or promote the violation of, any applicable federal, provincial, local, foreign, or international law or regulation, ‎including any laws regarding the export of data or software, patent, trademark, trade secret, ‎copyright, or other intellectual property or legal rights (including the rights of publicity and privacy of ‎others); 

  3. violate the terms of use of any third-party website or service that is linked to the Services, including any third-party social media websites or payment processors‎; 

  4. except as expressly permitted by these Terms or applicable law, directly or indirectly make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile, publicly display, republish, download, store, transmit or create any derivative works of the Services or any content included therein, including any software ‎(except that your computer and browser may temporarily store or cache copies of materials being accessed ‎and viewed)‎, or determine or attempt to determine any source code, algorithms, methods, or techniques embodied by the Services or any derivative works thereof; 

  5. distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof; 

  6. modify copies of any materials from the Services nor delete or alter any copyright, trademark, or other ‎proprietary rights notices from copies of materials from the Services‎; 

  7. market, rent, or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation; 

  8. use the Services or any part thereof, without our express written consent, for any commercial, political, or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming; 

  9. interfere with or attempt to interfere with the proper working of the Services, disrupt our website (if any), or any networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services; 

  10. harass, abuse, bully or otherwise mistreat our employees, contractors, and personnel; 

  11. incorporate the Services or any portion thereof into any other program or product; 

  12. use automated scripts, software, code, or systems to collect information from or otherwise interact with the Services; 

  13. impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute, or otherwise make available emanates from the Services; 

  14. encourage any conduct that restricts or inhibits anyone's use or enjoyment of the ‎Services, or which, as determined by us, may harm us or users of the Services or expose us or them ‎to liability; 

  15. involve, provide, or contribute any false, inaccurate, or misleading information‎; 

  16. impersonate or attempt to impersonate us, one of our employees, another ‎user, or any other person or entity (including by using email addresses, or screen names ‎associated with any of the foregoing);‎ 

  17. involve stalking, attempting to exploit or harm any individual (including minors) in any way by ‎exposing them to inappropriate content or otherwise or ask for personal information as prohibited ‎under applicable laws, regulations, or code‎; 

  18. promote sexually explicit material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; 

  19. use or attempt to use another user’s account, service, or system without authorization from us; 

  20. use the Services in a manner that may create a conflict of interest or undermine the purposes of the Services; 

  21. use or exploit any bots, hacks, bugs, errors, or design flaws to obtain unauthorized access to the Services; 

  22. use the Services to upload, transmit, distribute, store, or otherwise make available in any way:  

    i. files that contain viruses, trojans, worms, logic bombs, or other material that is malicious or technologically harmful; any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation; any private information of any third party, including addresses, phone numbers, email addresses, number and feature in the personal identity document (e.g., social security numbers, passport numbers, etc.), or credit card numbers; any material which does or may infringe any copyright, trade mark, or other intellectual property or privacy rights of any other person; any material which is defamatory of any person, obscene, violent, sexually explicit, offensive, pornographic, hateful, or inflammatory; any material that would constitute, encourage, or provide instructions for a criminal offence, dangerous activities, or self-harm; any material that is deliberately designed to provoke or antagonize people, especially trolling and bullying, or is intended to harass, harm, intimidate, hurt, scare, distress, embarrass, or upset people; any material that contains a threat of any kind, including threats of physical violence; any material that is racist or discriminatory, including discrimination on the basis of someone’s race, religion, age, gender, disability, or sexuality; 

    ii. any material that could give rise to any civil or criminal liability under applicable ‎laws or regulations or that otherwise may be in conflict with these Terms and our Privacy Policy found ‎at https://www.nextechar.com/nextech-ar-solutions-privacy-policy; or 

    iii. material that restricts or inhibits any other person from using the Services, or which may expose Nextech, the Services, or its users to any harm or liability of any type.

14. Exports and Location 

You agree that you will not export or re-export, directly or indirectly the Services or other information or materials provided by Nextech hereunder, to any country for which Canada, the United States, or any other relevant jurisdiction requires any export licence or other governmental approval at the time of export without first obtaining such licence or approval. In particular, but without limitation, the Services may not be exported or re-exported: (a) into any comprehensively embargoed countries or any country that your jurisdiction’s government has included on any official terrorism or terrorism-related lists; (b) to any governments of such countries; or (c) to anyone listed on your jurisdiction’s list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Department of Commerce Denied Person’s List or Entity List, or Public Safety Canada’s terrorist entities list. 

We administer and operate the Services from Canada. Although the Services are ‎accessible in many territories throughout the world, not all features, products or ‎Services discussed, referenced, provided or offered are available to all ‎persons or in all geographic locations, or appropriate or available for use outside Canada. We reserve the right to limit, in our sole discretion, the provision and quantity of ‎any feature, product or Service to any person or geographic area. Any offer for any ‎feature, product or Service made is void where prohibited. If you choose to ‎access the Services from outside Canada, you do so on your own initiative and you are ‎solely responsible for complying with applicable local laws.‎

15. Indemnity 

To the maximum extent permitted by law, you agree to, at your sole cost, defend, indemnify, and hold harmless Nextech, its parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents, suppliers, and advisors, from and against any and all claims, liabilities, costs, fines, penalties, and expenses, including legal fees and expenses, arising out of or in any way connected with: (i) a breach by you, or any user of your account, or any of your End Users, of any applicable obligation, representation, or warranty under these Terms; (ii) the content of or any inaccuracy in your Feedback; (iii) our use or publication of your Feedback infringes any third party intellectual property rights; (iv) your access to or use of, or activities in connection with, the Services; (v) your violation of any applicable laws, rules, regulations, or contracts; or (vi) any misrepresentation made by you (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by us in the defense of any Claims and Losses. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. We reserve the right to assume the exclusive defense and control of any Claims and Losses at our own cost. You will not settle any Claims and Losses without, in each instance, our prior written consent or the consent of an individual whom we authorize, in writing, to approve such settlement. 

16. EXCLUSION OF WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY LAW: (I) ALL SERVICES, INCLUDING WITHOUT LIMITATION ALL BETA SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE; AND (II) WE EXPRESSLY DISCLAIM AND EXCLUDE ALL WARRANTIES, INCLUDING ALL CONDITIONS, WARRANTIES, OR OTHER TERMS, WHETHER STATUTORY, EXPRESS, OR IMPLIED (INCLUDING ANY IMPLIED WARRANTIES AS TO MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMANCE WITH DESCRIPTION), EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THESE TERMS.  

IN PARTICULAR WE DO NOT REPRESENT OR WARRANT TO YOU THAT: 

  1. YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; 

  2. YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR;  

  3. THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; 

  4. ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE;  

  5. DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED; OR 

  6. THE CONTENT OBTAINED THROUGH THE SERVICES IS ACCURATE, COMPLETE, OR RELIABLE. 

WE MAY CHANGE, SUSPEND, WITHDRAW, OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF THE SERVICES FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION OBTAINED THROUGH THE SERVICES BEFORE RELYING ON IT. YOU FREELY ACCEPT AND VOLUNTARILY AGREE TO ASSUME ALL ‎RISKS, INCLUDING OF PERSONAL INJURY, DEATH, AND ‎PROPERTY DAMAGE OR LOSS, CONNECTED WITH YOUR USE ‎OF THE SERVICES HOWSOEVER ARISING 

YOUR USE OF THE SERVICES MAY DEPEND ON THE INTERNET, INCLUDING NETWORKS, CABLING, FACILITIES, AND ‎EQUIPMENT THAT IS NOT IN OUR CONTROL. ACCORDINGLY: (I) WE CANNOT GUARANTEE ANY MINIMUM LEVEL REGARDING ‎SUCH PERFORMANCE, SPEED, RELIABILITY, AVAILABILITY, USE, OR CONSISTENCY; AND (II) YOU ACKNOWLEDGE AND AGREE THAT DATA, MESSAGES, ‎INFORMATION, OR MATERIALS SENT OVER THE INTERNET MAY NOT BE COMPLETELY PRIVATE, AND YOUR ANONYMITY IS ‎NOT GUARANTEED.‎ 

17. LIMITATION OF LIABILITY

NOTHING IN THESE TERMS WILL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SUBJECT TO THE FOREGOING, IN NO EVENT WILL WE, OUR AFFILIATES AND OUR AND THEIR ‎RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, ‎EMPLOYEES, ADVERTISERS, SUPPLIERS, CONTENT PROVIDERS ‎AND LICENSORS ("NEXTECH PARTIES") BE LIABLE (JOINTLY OR ‎SEVERALLY) TO YOU OR ANY OTHER PERSON FOR DIRECT, INDIRECT, ‎CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR ‎EXEMPLARY DAMAGES, INCLUDING LOST ‎PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOST SAVINGS, LOST REVENUES, LOST GOODWILL, OR LOST OPPORTUNITY ‎‎(COLLECTIVELY, THE "EXCLUDED DAMAGES"). THESE LIMITATIONS ‎APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON TORT ‎‎(INCLUDING NEGLIGENCE), CONTRACT, OR OTHER THEORY OF ‎LIABILITY, EVEN IF ANY OF THE NEXTECH PARTIES HAVE BEEN ‎ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY ‎OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY ‎FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY, AND YOU HEREBY WAIVE, RELEASE, AND FOREVER DISCHARGE THE NEXTECH PARTIES FROM  AND AGAINST ALL OF THE EXCLUDED DAMAGES. IF ‎ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS ‎SECTION TO BE UNENFORCEABLE, THEN THE NEXTECH PARTIES' ‎LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT ‎PERMITTED BY APPLICABLE LAW.‎ 

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE EXCLUDED DAMAGES INCLUDE ANY LOSSES OR DAMAGES WHICH MAY BE INCURRED BY YOU AS A RESULT OF: 

  1. ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY, OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES; 

  2. ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); 

  3. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY CONTENT OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; 

  4. YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR 

  5. YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. 

YOU ARE RESPONSIBLE FOR ANY INTERNET OR MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF OUR SERVICES, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE. 

TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. 

IN NO EVENT WILL NEXTECH PARTIES’ TOTAL, AGGREGATE ‎LIABILITY EXCEED, WITH RESPECT TO THE SERVICES, ‎THE TOTAL AMOUNT PAID BY YOU TO NEXTECH IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO ‎THE EVENT GIVING RISE TO THE CLAIM.‎ 

18. Privacy Policy

You also acknowledge that our Privacy Policy, available at https://www.nextechar.com/nextech-ar-solutions-privacy-policy, will also apply to your use of our Services and forms an essential part of these Terms.  

19. Term and Termination 
  1. Term. These Terms will be effective as of the earlier of (a) the date you began using the Service; and (b) the date you consented to these terms through our website, apps, an Order Form or otherwise, and will continue until terminated hereunder (the “Term”).  For greater certainty, the completion, expiration, or termination of any or all work hereunder will not, by itself, terminate these Terms.  

  2. Termination. These Terms or any Order Form may be terminated as follows: 

    i. Convenience. Unless an Order Form expressly states that it may not be so terminated, by Nextech for its sole convenience upon delivery of thirty (30) calendar days prior written notice of termination to you;  

    ii. Default. By either party upon written notice if the other party (or a person for which such other party is responsible) is in default of or breaches any provision of the particular Order Form or these Terms and such breach or default (i) is incapable of cure within a fifteen (15) calendar day period from the day that the terminating party delivers notice to the breaching party specifying the particulars of such breach, or (ii) continues for such fifteen (15) calendar day period without cure by the other party, and in each case “cure” means the full rectification, which shall be determined in the reasonable discretion of the affected party, of such breach or default in compliance; 

    iii. Non-Payment. By Nextech upon written notice if you do not pay any invoices when due and payable and you fails to cure such breach within seven (7) calendar days’ from the day that Nextech delivers notice of such breach to you; and 

    iv. Insolvency or Cessation. By either party upon written notice if the other party (i) is bankrupt, insolvent, or unable to discharge its liabilities as they become due; (ii) commences, maintains or is subject to any proceedings for the benefit of insolvent debtors or for protection from its creditors or relating to its liquidation, dissolution or winding-up or insolvency or the appointment of a receiver, receiver-manager or similar officer or custodian for such party or all or any material part of its assets or business; (iii) makes an assignment for the benefit of all or substantially all of its creditors; (iv) suspends or ceases, or threatens to suspend or cease, to carry on its business in the normal course; or (v) is subject to any liquidation, winding-up or dissolution. 

  3. Obligations upon Expiration or Termination.  The parties will remain responsible and liable for all of their respective obligations and liabilities accrued before the expiration or termination of any Order Form or these Terms. Upon the expiration or termination of any Order Form or these Terms for any reason whatsoever, and without limiting any remedies available to the parties: 

    i. you will pay to Nextech all fees for services properly performed and Deliverables delivered to and delivered to you prior to the effective date of termination, provided that, with respect to any fees that are “fixed price”, the amount payable to Nextech will be a portion of the total amount payable, as determined by the parties acting reasonably having regard to the services performed and Deliverables completed and accepted by you; and 

    ii. Nextech will deliver to you all originals and copies, in whatever form or medium, of all completed Deliverables then existing and all work-in-progress regarding those Deliverables for which you have paid the relevant payments hereunder. 

  4. Survival. Notwithstanding any other provision of these Terms, those provisions of these Terms that by their nature ought to survive any expiration or termination of these Terms, and all other provisions necessary to their interpretation or enforcement, will so survive and will remain in full force and effect and be binding upon the parties as applicable, including without limitation Sections 6)7)8)9)10)13)15)17)18)19), and 20).

 
20. Other Terms 
  1. Relationship.  The parties are non-exclusive, independent contracting parties, and nothing in these Terms or done pursuant ‎to these Terms will create or be construed to create a partnership, joint venture, agency, employment or ‎other similar relationship between you and Nextech. At all times Nextech will conduct Nextech’s business and affairs ‎in a manner consistent with maintaining its independent contractor status.  Nothing in these Terms or done ‎under these Terms in any way limits, prohibits or restricts either party from engaging in discussions or ‎entering into agreements with any other person at any time regarding similar services, deliverables and other ‎work product as those performed, delivered or provided under these Terms. 

  2. Non-Solicit.  ‎You will not, without prior written consent from Nextech, directly or indirectly (whether ‎individually, jointly or in conjunction with any person) in any manner (including any individual, ‎firm, association, ‎syndicate, company, corporation, or other business enterprise, as principal agent, ‎shareholder, officer, independent ‎contractor, or in any other manner whatsoever), during the term of ‎these Terms and for a period of twelve (12) ‎months‎ thereafter ‎seek in any way to persuade or entice any person to terminate an employment, advisory or ‎‎consulting position with Nextech, or hire or retain the services of any such ‎person, provided that nothing in this ‎provision shall prevent you from directly or indirectly ‎hiring or retaining any person pursuant to general, public job ‎advertisements that are not ‎targeted to Nextech’s personnel‎ 

  3. Applicable Law and Jurisdiction. These Terms, their subject matter and their formation, are governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provisions or rules. You and we agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, ‎‎1980) will not apply to these Terms, the Services, or to any dispute or transaction arising out of these ‎Terms or the use of the Services. ‎  

  4. Dispute Resolution.  Most customer concerns regarding the Services can be resolved quickly and to a ‎customer’s satisfaction by emailing us at support@nextechar.com.‎ However, with respect to any dispute arising out of or in connection with these Terms that cannot be resolved by email, including any question regarding existence, validity or termination of these Terms, the parties agree that such unresolved Disputes will be resolved by arbitration at Canadian Arbitration Association pursuant ‎to the general Canadian Arbitration Association Rules for Arbitration. Any party may serve notice of its desire to refer a ‎dispute to arbitration. The arbitration shall be conducted by a single arbitrator. The arbitration shall be held in ‎Vancouver, British Columbia. The arbitration shall proceed in accordance with the provisions of the Arbitration Act ‎‎(British Columbia). The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie ‎therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The ‎costs of the arbitrator shall be divided equally between the parties.‎ Notwithstanding the foregoing, each party may seek injunctive relief in any court of competent and appropriate ‎jurisdiction‎. 

  5. Interpretation. In these Terms, (a) the captions and headings are for convenience only and do not ‎constitute substantive ‎matter and are not to be construed as interpreting the contents of these ‎ Terms, (b) the word “including”, the ‎word “includes” the phrase “such as”, and similar words and phrases, when following a ‎general statement or ‎term (whether or not non-limiting language such as “without limitation” or “but ‎not limited to” or other words ‎of similar import are used with reference thereto), is not to be ‎construed as limiting, and the word “or” ‎between two or more listed matters does not imply an ‎exclusive relationship between the matters being ‎connected, and (c) all references to Services will also ‎include any successor or replacement applications, ‎websites, content, or services containing substantially similar information as the ‎referenced Service(s).‎ 

  6. Assignment. We may at any time assign our rights and obligations under these Terms, in whole or in part, without ‎notice to ‎you. You may not assign these Terms without our prior, written consent. These Terms will ‎inure to the benefit ‎of and bind you and us and our respective personal and legal representatives, ‎successors and permitted ‎assigns.‎ 

  7. No Waiver. Our failure to insist upon or enforce any provision of these Terms will not be construed as a waiver of any provision or right. 

  8. Security. The transmission of information via the internet is inherently not completely secure and we do not guarantee that our Services will be secure or free from defects or viruses. You are responsible for configuring your information technology and computer programs to access our Services.  

  9. Severability. If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable. 

  10. Further Assurances.  Each of the parties agree to execute and deliver at the request of the other party all such further documents, deeds and instruments, and will do and perform all such further acts as may be reasonably necessary to give full effect to the intent and meaning of these Terms. 

  11. Force Majeure. We will not be liable for delays, failures in performance, or interruptions of the Services that result directly or ‎indirectly from any cause or condition beyond our reasonable control, including significant ‎market volatility, any delay or failure due to any act of God, act of civil or military authorities, act of terrorism, ‎civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or internet ‎services or network provider services, failure of equipment and/or software, pandemic, outbreak of illness or disease, declaration of public health emergency, other catastrophe or any other ‎occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any ‎remaining provisions.‎ 

  12. Remedies Cumulative.  The remedies of the parties set out in these Terms are cumulative and not exclusive ‎of any other rights or remedies that may be available to the parties, whether provided by law, equity, statute, these Terms, any other agreement between the parties or otherwise.‎ 

  13. Enurement.  These Terms will enure to the benefit of and be binding on your successors and assigns and on the successors and permitted assigns of Nextech.‎ 

  14. English Language. The parties have requested and agree that these Terms and all documents relating thereto be ‎drawn up in ‎English / Les parties ont demandé que cette convention ainsi que tous les documents qui ‎s’y rattachent soient ‎rédigés en anglais.‎ 

  15. Notices.  Whenever in these Terms it is required or permitted that notice or demand be given or served by ‎either party to or on the other, such notice or demand will be in writing and will be deemed delivered upon the earlier of ‎‎(a) actual receipt by the intended recipient or (b) delivery in person or by reputable overnight courier.‎ 

  16. Independent Legal Advice.  Each party agrees that it has read and understands these Terms and the obligations imposed in it, and that it has been provided with a reasonable chance to ‎seek independent legal advice.‎ 

  17. Counterparts. These Terms may be executed in counterparts (including electronically), each of which will constitute an original and all of which taken together will constitute one and the same instrument. 

  18. Any Questions? Get in touch at support@nextechar.com.

 

Exhibit 1: Acceptable Use Policy

This Acceptable Use Policy sets forth guidelines relating to the types of content that Customer may upload to the web servers under its agreement with Company for services (the "Services"). Company may remove any materials that, in its sole discretion, may be illegal, may subject it to liability, or which may violate this Acceptable Use Policy. Company will cooperate with legal authorities in the investigation of any suspected or alleged crime or civil wrong arising from any use of the Services. Customer’s violation of this Acceptable Use Policy may result in the suspension or termination of either Customer’s access to the Services and/or Customer’s account or other actions as detailed in the Master Service Agreement.

  1. Acceptable Use: The following constitute violations of this Acceptable Use Policy:

    1.1.  Illegal Use: Using the Services to transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.
    1.2.  Harm to Minors: Using the Services to harm, or attempt to harm, minors in any way.
    1.3.  Harassment: Using the Services to transmit or post any material that harasses, threatens or encourages bodily harm or destruction of property.
    1.4.  Fraudulent Activity: Using the Services to make fraudulent misrepresentations or offers including but not limited to offers relating to "pyramid schemes" and "Ponzi schemes."
    1.5.  Unsolicited commercial email/Unsolicited bulk email (SPAM): Using the Services to transmit any unsolicited commercial or unsolicited bulk e-mail is expressly prohibited. Violations of this type will result in the immediate termination of the offending account.
    1.6.  Unauthorized Access: Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Company or another entity's computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
    1.7.  Fraudulent Links: Use of fraudulent referrers to Company’s services is forbidden. This includes, but is not limited to, blog ping backs. Inappropriate (e.g. off-topic or automated) postings to forums, or other services containing links to any of Company’s services is forbidden.
    1.8.  Infringement: Using the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying and/or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software.
    1.9.  Phishing: Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
    1.10.  Resale: Reselling the Services without the prior written authorization of Company.
    1.11.  Interference: Using the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes but is not limited to "denial of service" (DoS) attacks against another network, Company or individual customer. Interference with or disruption of other network customers, network services or network equipment is prohibited.
    1.12.  Servers or Proxies: Use of software or scripts which creates a listening socket on Company’s network. Proxies which receive requests over HTTP and use Company’s network connection to forward the request to another server are not permitted. This includes, but is not limited to, HTTP proxies. 1.13.  File Sharing and BitTorrent: Use of software for "file sharing", "bit torrents" or similar is not allowed on Company’s network. This includes sending or receiving files using these mechanisms.
  2. Reporting of Violations of This Acceptable Use Policy: Company requests that anyone who believes that there has been a violation of this Acceptable Use Policy to immediately send an email detailing such violation to support@jolokia.com.

  3. Revisions to This Acceptable Use Policy: Company may revise, amend or modify this Acceptable Use Policy at any time and in any manner. Modified policy will be available on Company’s website at jolokia.com.