These Terms of Service set out the provisions pursuant to which Jolokia Corporation, a wholly owned subsidiary of NexTech AR Solutions Inc (“NexTech”) will provide software as a service and related professional services set out on the Service Order Form which incorporates these Terms by reference or appends them (the “Services”) to the Customer identified on the applicable Services Order Form. Together these Terms of Service and the applicable Service Order Form constitute the “Agreement”.
1. Scope of Services
1.1. NexTech will provide the Services on a non-exclusive basis during the Term to Customer either as a one-time or series of events basis or as an ongoing subscription to use NexTech’s platform services under a term-based license, all as set out in the applicable Service Order.
1.2. NexTech and Customer may execute any number of Service Orders regarding the Services to be provided by NexTech, each of which shall be signed by NexTech and Customer and subject to the terms of this Agreement. This Agreement will govern the provision of the Services unless the terms of the Service Order expressly vary any named terms hereof, in which event the Service Order terms will take precedence but only for the specific referenced Service Order.
1.3. Any change in scope or other modification of the Services relating to a Service Order will only be binding if agreed to in writing by NexTech and Customer. In the event the Customer wishes to have NexTech provide custom development and/or services at any time during the Term, the parties will negotiate the terms and conditions of such additional services and enter into a mutually agreeable contract.
2. Price and Payment: Customer will pay NexTech for the Services according to the terms set forth in the applicable Service Order, within thirty (30) days of receipt of an invoice from NexTech for same unless a different payment schedule or milestone/benchmark for payment is set forth in the Service Order.
3. Term and Termination:
3.1. This Agreement shall be effective as of the Effective Date and will continue for the term indicated on the Service Order Form, or if none is stated, for one-time events, for the duration of the Services. For greater certainty, service subscriptions will be for periods of one (1) year (unless a different duration is stated in the applicable Order Form), and will automatically renew for successive periods of the same duration unless either party elects to prevent such automatic renewal by providing written notice of non-renewal to the other party no less than sixty (60) days prior to the expiration of the then-current term or renewal period; provided, however, that once notice of non-renewal is given, the effective date of the termination of this Agreement shall be the date upon which all outstanding Service Orders have expired or have terminated pursuant to their terms, and this Agreement shall remain in
force and effect until such date. Notwithstanding the foregoing, NexTech may terminate this Agreement without cause upon at least sixty (60) days prior written notice to Customer. Either party may terminate this agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice and the opportunity to cure the breach. Termination for material breach will not alter or affect the terminating party's right to exercise any other remedies for breach.
3.2. For subscription services, if Customer's account is suspended due to lack of payment, Customer will pay NexTech’s then-current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of the Services.
3.3. Notwithstanding any term to the contrary in this Agreement, the provisions of Paragraphs 5.2, 7, 8, 9, 10, 15, 16 and 17 of this Agreement shall survive any termination or expiration of this Agreement for any reason. On termination, Customer may request in writing deletion of Customer’s data.
4. Customer Service: NexTech will provide to Customer reasonable amounts of consultation via electronic mail in the use of the systems and Services provided by NexTech, but NexTech is not responsible to assist with any technology, products or services that are not maintained or controlled by NexTech. In conditions that are deemed necessary by NexTech, customer service will be provided via telephone, video conference or shared computer session.
5. Customer's Warranties and Obligations:
5.1. Customer is responsible for providing all equipment and/or software necessary to access the Services. Customer agrees to adhere to NexTech's Acceptable Use Policy. Failure by Customer to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this Agreement.
5.2. Customer hereby warrants to NexTech, and agrees that at all times: (a) Customer is the owner or valid licensee of all data and/or content it will upload or provide in connection with the Services (the "Customer Content"), and that Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by NexTech to make any payments or other compensation of any kind to any person; (b) NexTech’s use, publication and display of the Customer Content in the manner contemplated or required in connection with the Services will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations regarding the Customer Content including all data protection laws and will use the services only for lawful purposes; and (d) Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code.
5.3. Customer acknowledges and agrees that NexTech may be dependent on feedback, instructions and other requirements outlined to Customer such as equipment and software in order to carry out the Services, accordingly Customer agrees to provide timely feedback and any assistance reasonably required in connection with the services set out on the applicable Order Form. For the certainty, NexTech will not be liable for any delays or failures to perform which are due in whole or in part to Customer’s failure to comply with the terms of this Section 5.3.
6. Ownership of Intellectual Property:
6.1. Customer hereby grants to NexTech a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and (b) make archival or back-up copies of the Customer Content. Except for the rights expressly granted herein, NexTech does not acquire any right, title or interest in or to the Customer Content, all of which will remain solely with Customer. Customer agrees that it is solely and exclusively responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Content that is stored on the NexTech systems, disclosed to or used by Customer in connection with the Services, and for compliance with all applicable laws and regulations in the appropriate jurisdiction, including without limitation with respect to privacy, non-disclosure, and confidentiality.
6.2. Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Customer sends to NexTech will be treated as non-confidential and non-proprietary. NexTech may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose with no obligation to provide compensation or attribution of any kind to Customer.
6.3. NexTech’s brand assets including but not limited to its trademarks, trade names, service marks, logos, and slogans are the sole and exclusive property of NexTech. Customer will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of NexTech. NexTech will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by NexTech to Customer. NexTech may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
6.4. Customer acknowledges that the technology, software and other materials provided by NexTech in connection with the Services, and all intellectual property rights therein (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights and all modifications, changes, enhancements, or additions thereto (whether initiated by the Customer or otherwise), and all intellectual property rights relating to the provision of support in respect of the Services (collectively, “NexTech IP“), are owned or licensed by NexTech. Except for the license granted hereunder, nothing in this Agreement gives the Customer any right, title or interest in, to or under any of the NexTech IP, and to the extent the Customer acquires rights in the NexTech IP, Customer assigns such rights to NexTech and waives any moral rights it may have in the NexTech IP to and in favour of NexTech. All NexTech IP shall be deemed to be Confidential Information (as defined below), and the Customer shall be bound by all confidentiality provisions. NexTech hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, for the term of this Agreement, to use any NexTech IP described in the Service Order or required for use of the Services solely to the extent so required. Except for the rights expressly granted herein, this Agreement does not transfer from NexTech to Customer any right, title or interest in and to the provided technology, and all right, title and interest thereto will remain solely with NexTech. Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology.
7. NexTech Warranties and Disclaimer: NexTech warrants that the Services will be performed in a professional manner in conformity with generally prevailing industry standards. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY NEXTECH, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY PROPRIETARY RIGHTS. NEXTECH DOES NOT MAKE ANY WARRANTY OR REPRESENTATION THAT THE SERVICES WILL BE FREE FROM ERRORS OR WILL MEET CUSTOMERS’ REQUIREMENTS.
8. Limitation of Liability: Except for liability arising from Paragraph 9 (Indemnification) or for gross negligence or willful misconduct, neither party will be liable to the other for special, indirect or consequential damages, or for the loss of revenue or profits, loss of business, loss of information or data, or other financial loss, incurred or suffered by the other arising as a result of or related to the Services, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. NexTech’s total cumulative liability, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Customer to NexTech during the six (6) month period prior to the date the claim arose. Any and all claims by Customer relating to the Services must be brought no later than one (1) year from the date the Services were performed.
9. Indemnification: Each party (the "Indemnifying Party") will indemnify and hold harmless the other party (the "Indemnified Party") against any damages, liabilities, costs, losses, demands, losses and claims (including, without limitation, legal costs and attorneys’ fees) agreed in a settlement by the Indemnifying Party or awarded by a court of competent jurisdiction against the Indemnified Party in connection with a third party claim arising out of or in conjunction with the Indemnifying Party’s breach of this Agreement or a breach of the Indemnifying Party’s representations and warranties as set forth in this Agreement. The Indemnified Party shall (i) provide prompt notice of the claim to the Indemnifying Party; (ii) give the Indemnifying Party sole control of the defense and settlement of the claim; (iii) provide Indemnifying Party all available information, assistance and authority to defend; and (iv) not compromise or settle such proceeding without the Indemnifying Party’s prior written consent.
10. Confidential Information & Data Protection
10.1.1. For the purpose of this Paragraph 10, "Disclosing Party" means the party furnishing Confidential Information, "Receiving Party" means the party receiving Confidential Information, and "Confidential Information" means all software code and all proprietary information of a commercially sensitive nature, including trade secrets, know-how, and corporate, financial or economic information or knowledge generally concerning the parties, or specifically concerning the Services, whether disclosed verbally or in the form of written material, computer data or programs, and whether obtained before or after the execution of this Agreement, except information that: i) is disclosed lawfully to the Receiving Party by a third party who has no obligation of confidentiality to the Disclosing Party with respect to the disclosed information; ii) is, or becomes, generally known to the public, other than by a breach by the Receiving Party of its obligations hereunder; iii) is already known by the Receiving Party before disclosure by the Disclosing Party as can be proved by evidence of the Receiving Party; or iv) is information independently developed by the Receiving Party without reference to Confidential Information, as evidenced by documentation made in the ordinary course of business.
10.1.2. During the term of this Agreement and at all times thereafter, the Receiving Party shall maintain the Disclosing Party’s Confidential Information in strict confidence and shall not, without the prior written consent of the Disclosing Party, use the Confidential Information or disclose the Confidential Information to any third party with the exception of Receiving Party’s employees and independent contractors engaged by Receiving Party in connection with performing the Services (collectively, "Authorized Recipients"). The Receiving Party shall inform its Authorized Recipients of the confidential nature of such Confidential Information and shall ensure that such Authorized Recipients maintain the confidentiality of such Confidential Information in accordance with the terms of this Agreement.
10.1.3. Upon written request of the Disclosing Party, the Receiving Party shall, at its election, either (a) deliver to the Disclosing Party, at the Disclosing Party’s expense, all copies, whether written, in the form of computer data or otherwise, of all Confidential Information in the possession of the Receiving Party, the Receiving Party’s Authorized Recipients, or other parties to whom the Receiving Party has provided Confidential Information with the consent of the Disclosing Party, or (b) permanently delete or destroy all electronic copies and all physical copies of such information. In such event, the Receiving Party, the Receiving Party’s Authorized Recipients, and any parties to whom the Receiving Party has provided Confidential Information with the Disclosing Party’s consent shall not retain copies of any Confidential Information. Receiving Party shall certify, in writing, its compliance with any request to return or destroy the Disclosing Party’s Confidential Information.
10.2. Data Protection.
10.2.1. Definition and Permitted Use. For this Agreement, "Personal Information" means any information that NexTech collects, receives, or obtains, from or on behalf of Customer or any of its Authorized Users that identifies a specific individual or by or from which a specific individual may be identified, such as the individual’s name, address, or social security number, and any other information relating to an identified or identifiable individual. Personal Information includes the information of or pertaining to Customer’s personnel, directors, officers, agents, providers, contractors, investors, or customers. NexTech shall not cause or permit any Personal Information to be processed in any manner or for any purpose other than the performance of the Services in compliance with the restrictions in this Agreement and all applicable Laws.
10.2.2. Ownership and Treatment of Personal Information. As between Customer and NexTech, Customer is and shall remain the sole and exclusive owner of all right, title, and interest in and to Personal Information. NexTech shall:
a) Process Personal Information for the sole purpose of performing the Services and in compliance with: (i) this Agreement or as Customer may expressly direct in advance in writing; and (ii) all applicable data protection laws; and b) notify Customer in writing if NexTech becomes aware of any unauthorized access, use or other unauthorized act respecting Personal Information.
10.2.3. Customer as Controller. Customer agrees that if Customer, or any data submitted by Customer to the Services, is subject to the General Data Protection Regulation (“GDPR”), or related laws including related laws of European Union member states: (i) Customer is the data controller of such data and NexTech is a data processor of such data; and (ii) Customer further represents that Customer has undertaken all requirements to comply with all privacy and data protection laws including but not limited to GDPR. Such requirements may include but are not limited to maintaining adequate records and registration requirements with supervising or other regulatory authorities.
10.2.4. Legitimate purpose/consent. Customer agrees and represents to NexTech that all personal information Customer collects (including through the Services), provides, or otherwise uses in any way in relation to the Services is necessary for Customer’s legitimate interest and is not overridden by fundamental rights of the subject individual, and otherwise, that Customer has all rights and obtained all necessary consents, under the applicable law, to collect, provide, manage, all personal information Customer provides to NexTech for any purpose.
10.2.5. NexTech will maintain a security program with administrative, technical, organizational and physical security measures designed to protect Customer Content against unauthorized access, disclosure, and loss. If the parties enter into any separate agreement or addendum concerning data protection (“DPA”), then such terms will be governed by this Agreement, and, in the event of any conflict between such and this Agreement, the DPA will control. To the extent, the California Consumer Privacy Act applies, NexTech is a service provider in connection with the Services.
10.3. Publicity. Notwithstanding any other terms of this Agreement, Customer agrees that NexTech will have the right to publish a press release giving an account of any project or event undertaken as part of the Services. Customer will have the right to review any such press release and provide feedback to NexTech.
11. Relationship of Parties: The performance by NexTech of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between NexTech and Customer, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
12. Employee Solicitation/Hiring: During the period of this Agreement and for twelve (12) months thereafter, neither party will directly or indirectly solicit, hire, employ or retain any employee or contractor of the other.
13. Non-assignment: Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party; provided, however, that either party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
14. Arbitration: Any dispute arising under this Agreement will be subject to binding arbitration by a single arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of New York. The arbitration will be held in New York, New York. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
15. Notices: All notices shall be in writing and sent to NexTech and Customer at their respective addresses set forth in the preamble of this Agreement, or to such other address as either party shall notify the other party by notice given hereunder. Notices shall be deemed received (a) upon delivery when personally delivered, and (b) upon receipt, when sent by registered mail, certified mail or overnight courier, with confirmation of delivery.
16. Severability: If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
17. Force Majeure: Other than the obligation to pay money hereunder, neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
18. No Waiver: The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.
19. Modifications: NexTech may modify these Terms of Service from time to time, in which case the modified version of this Agreement will supersede the prior versions. The most current version will always be posted at the URL provided. NexTech may also provide notification via email, posting a notice on the website or through the service management console of any material modifications, with such modifications effective on the date of public posting. If Customer disagrees with the modifications, Customer’s exclusive remedy is to terminate the Agreement by providing thirty (30) days written notice to NexTech and cease using the Services. Customer’s continued use of the Services will be subject to the modified terms
20. Entire Agreement: This Agreement, together with any attachments referred to herein and any Service Orders, constitutes the entire and exclusive agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.