Terms of Use Agreement

This Terms of Use Agreement (the “Agreement”) is entered into by Nextnet, Inc., a Delaware Corporation (“Nextnet”), with an address at 1020 Hatteras Ct, Foster City, CA 94404, United States, and the entity named below (“Subscriber”) and governs Subscriber’s access to, and use of, Nextnet’s proprietary platform, (“Nextnet” or the “Platform”), an AI-powered knowledge browser. The Effective Date of this Agreement is the date when the Subscriber first signs up for Platform.   

1. SERVICES

1. Grant.  Subject to the terms of this Agreement, Nextnet grants Subscriber a non-exclusive, non-transferable, non-sublicensable subscription license to access and use the features and functions of Platform for Subscriber’s internal business purposes, in accordance with any usage limitations set forth in this Agreement. 
2. Restrictions. Subscriber may not, directly or indirectly: (a) modify or create derivative works of the Platform or any portion thereof; (b) decompile, reverse engineer, or translate  any  portion  of  the  Platform  into  human-­‐readable  form  (except  to  the  extent  expressly  allowed  by applicable law); (c) rent, lease, share, distribute, or sell the Platform to any third party, including on a service bureau or similar basis; (d) remove, alter or deface proprietary notices or marks in the Platform or any documentation provided in connection therewith; (e) disclose the results of testing or benchmarking of the Platform; (f) circumvent or disable the Platform’s security, copyright protection, or license management mechanisms, (g) interfere with the Platform’s operation; (h) use the Platform to violate the law or the rights of any third party; or (i) attempt to do any of the foregoing.
3. Users. Subscriber may permit its employees as provided herein (“Permitted Users”) to access and use the Platform; provided, that, any such Permitted Users are not direct competitors of Nextnet. Subscriber is responsible for providing each Permitted User with credentials to access the Platform and ensuring that all Permitted Users comply with this Agreement. Subscriber and Permitted Users must keep Platform credentials secure, and immediately inform Nextnet of any suspected unauthorized use of the Platform.
4. Updates and Changes. Subscriber acknowledges that Nextnet may update or modify certain features and functions of the Platform from time to time.  Nextnet will provide notice to Subscriber of any such actions that have a material effect on the functionality of the Platform.  

2. UPTIMES AND SUPPORT

1. Availability. Nextnet will use commercially reasonable efforts to make the Platform available to the Permitted User(s) 24 hours per day, 7 days per week during the term of this Agreement, except for any disruption caused by a Force Majeure including denial of service attacks that would not be stopped by the use of standard security measures.
2. Support. Nextnet will use commercially reasonable efforts to promptly respond, during Nextnet’s normal business, hours.to issues with the Platform reported by Subscribers.  Both Subscriber reports and Nextnet’s response will be by email at support@getnextnet.com.

3. THIRD PARTY CONTENT

The Platform enables access to, and various public and private sources (“Third Party Content”).  Subscriber may use such Third-Party Content solely for its internal business purposes, during the applicable subscription term, in accordance with any usage limitations set forth in the applicable Services Order. While Nextnet endeavors to enable Permitted Users to utilize reputable sources of Third-Party information, Nextnet is ultimately not responsible for the accuracy, timeliness or completeness of Third-Party information. If Nextnet is required to deny Permitted User access to certain Third Party information, or is notified that certain Third Party information may violate applicable law or third party rights, Nextnet may remove the capacity to access such Third Party Content information, and will notify Permitted Users.

4. INTELLECTUAL PROPERTY

1. Platform. Except for the license granted in Section 1.1, Nextnet or its licensors retain all right, title and interest in the Platform, any documentation made available in connection with the Platform (instruction for use, examples, etc.).    
2. Subscriber Content. Subscriber owns all right, title and interest in, and is solely responsible for, any and all data, information, inventions or discoveries developed, discovered or refined as a function of Permitted Users use of the Platform.  Nextnet retains no rights in information or data accessed, downloaded or referenced by Subscriber through the Platform, or in such information or data that may be stored by Subscriber, for any period of time, on the Platform.  Subscriber represents, warrants and covenants that anyone using the Platform through Subscriber’s subscription will not use the Platform to transmit, store, display, distribute and any information that knowingly infringes the rights of any third party, is illegal, harmful, or offensive, including content that is defamatory, obscene, abusive, or pornographic.  
3. Usage Information. Nextnet owns all information and data related to instruction and education in use of the Platform and its capabilities, and related to Platform performance, including response times, usage statistics, and activity logs, (collectively, “Usage Information”). Usage Information does not include any personally identifiable information, but may include aggregated information derived from Subscriber uses. Nextnet may use Usage Information for any purpose, including to enhance the Platforms performance and capabilities, Nextnet’s analytical models, monitor use of the Platform and improve Nextnet’s products and services.
4. Marks. Subscriber grants Nextnet a limited, non-exclusive, non-transferable, sublicensable right to use its trademarks, service marks, logos, name, branding, and equivalent source identifiers (“Marks”) on the and for attribution as set forth in Section 9.4, consistent with those standard guidelines regarding the use of its Marks provided by Subscriber to Nextnet. Subscriber retains all other rights in the Marks and all goodwill arising from Nextnet’s use of the Marks will inure to Subscriber’s benefit.
5. Feedback. Subscriber grants Nextnet a worldwide, perpetual, irrevocable, royalty-free right and license to use any ideas, recommendations or other feedback provided by Subscriber or Users about the Platform to Nextnet in any manner without restriction.

5. TERM AND TERMINATION

1. Term. The Agreement will become effective on the Effective Date and will continue for one year from the Effective Date (“Initial Order Term”). Following the expiration of the Initial Order Term, the Order will automatically renew for one successive period of one year (a “Renewal Order Term”), unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the expiration of the then-current term, or as earlier terminated pursuant to Section 5.2.
2. Termination. Subscriber may terminate this Agreement upon 30 days written notice to Nextnet.  Nextnet may terminate this Agreement for a material breach by Subscriber that remains uncured twenty (20) days after the Subscriber’s receipt of notice of such breach.
3. Effects of Termination. Upon expiration or termination of the Agreement, (a) all licenses granted under this Agreement will terminate; and (b) Subscriber will stop using the Platform. Sections 1.2, 4, 5.3, 6.2, 6.3, 7, 8, and 9 will survive termination of expiration of this Agreement.  No portion of funds previously paid by Subscriber will be refunded.

6. WARRANTIES AND DISCLAIMERS

1. Mutual. Nextnet and Subscriber each represent and warrant that it has the full right and authority to enter into and perform its obligations under this Agreement, and that doing so will not violate any agreement such party may have with a third party.
2. Disclaimer. ASIDE FROM THE LIMITED WARRANTIES IN SECTIONS 8.1, NEXTNET EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, OR ANY OTHER SERVICES NEXTNET MAY PROVIDE. NEXTNET DOES NOT WARRANT THAT THE PLATFORM OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
3. Subscriber Responsibility.   The Third-Party Information accessed through the Platform and any and all analysis and information made by Subscriber through the use of the Platform is for subscriber’s analytical purposes. Subscriber acknowledges and agrees that it is solely responsible for, and Nextnet shall not have any liability with respect to, any acts and omissions of Subscriber that are based on, or taken/omitted in connection with, any such Third-Party information, or information generated by Subscriber’s use of the Platform or Subscriber’s analysis or use of such information.  

7. INDEMNIFICATION; RELEASE

1. By Nextnet. If any action is instituted by a third party against Subscriber based upon a claim that the Platform, as delivered, infringes any third party’s intellectual property rights, Nextnet shall defend such action at its own expense on behalf of Subscriber and shall pay all damages attributable to such claim which may be awarded against Subscriber.  If the Platform is enjoined or, in Nextnet’s determination is likely to be enjoined, Nextnet may, at its option and expense (a) procure for Subscriber the right to continue using the Platform, (b) replace or modify the Platform, so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Subscriber’s access to the Platform and refund any amounts previously paid that are attributable to the remainder of the then-current term.  This Section sets forth the entire obligation of Nextnet and the exclusive remedy of Subscriber against Nextnet for any claim that the Platform infringes a third party’s intellectual property rights. The above defense and indemnification obligations do not apply to the extent a Claim Against Subscriber arises from (i) Subscriber use of information accessed or developed through the use of the Platform , (ii) Subscriber’s breach of the Agreement, (iii) any modification or alteration to the Platform by Subscriber, (iv) any combination or use of the Services with products or services not expressly approved by Nextnet or (v) Subscriber’s continued use of the allegedly infringing portion of the Services after receiving notice from Nextnet regarding the same.
2. By Subscriber. If any action is instituted by a third party against Nextnet relating to Subscriber’s breach of Sections 3 or 4.2, Subscriber will defend such action at its own expense on behalf of Nextnet and shall pay all damages attributable to such claim which are finally awarded against Nextnet or paid in settlement of such claim.
3. Procedure.  Any party that is seeking to be indemnified under the provision of this Section 7 must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim.  

8. LIMITATION OF LIABILITY

EXCLUDING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEXTNET’S TOTAL LIABILITY ARISING OUT OF THE AGREEMENT WILL NOT EXCEED THE GREATER OF THE FEES PAID BY SUBSCRIBER UNDER THE AGREEMENT.

9. GENERAL

1. Governing Law and Venue. The Agreement will be governed by and interpreted in accordance with the laws of the State of California. The parties irrevocably consent to the jurisdiction of the state and federal courts located in San Francisco, California for any action arising out the Agreement.
2. Independent Contractors. The parties are independent contractors and the Agreement does not create a partnership, joint venture or agency relationship between them. Neither party will represent that it has the power to bind the other.
3. Waiver; Severability. A party’s failure to enforce a provision of this Agreement will not waive its right to enforce a subsequent breach of that or any other provision. A court’s determination that any provision of the Agreement is invalid will not affect any other provisions.
4. Attribution. Nextnet may use Subscriber’s Marks to identify Subscriber as a Nextnet Subscriber on the Nextnet website and in its marketing materials. The parties may agree to additional marketing efforts (i.e., case studies, events) in writing.
5. Assignment. Neither party may assign the Agreement without the other party’s prior written consent, except if that either party may assign this Agreement to a successor in connection with a merger, consolidation or sale of all or substantially all of a party’s stock or assets that relate to this Agreement; provided, that, any such successor agrees in writing to assume all of the assigning party’s rights and obligations hereunder.
6. Force Majeure. Except for payment obligations, neither party will be liable for a failure to perform its obligations under the Agreement as a result of events beyond its reasonable control that can’t be mitigated by the exercise of reasonable care.
7. Notices. All legal notices related to this Agreement will be in writing and sent via overnight courier requiring signature on delivery to the party’s address specified on the applicable Services Order. Operational communications, including changing a party’s notice address, may be delivered by email.
8. Entire Agreement; Amendment. The Agreement and all Attachments constitute the entire agreement of the parties with respect to its subject matter.  Other terms and preprinted terms on or attached to any invoice, purchase order, quote or order acknowledgement shall be void and of no effect.