Terms and Conditions
Please read this Nexplay Agreement (“Agreement”) carefully. By accessing, downloading and/or using all or any part of the Nexplay Services, you (“You” and, where applicable, “Your”) indicate Your acceptance of the following terms from Nexplay Technologies, LLC (“Nexplay”). You agree to be bound by all the terms and conditions of this Agreement. You agree that it is enforceable as if it were a written negotiated agreement signed by You. If You do not agree to the terms of this Agreement, You may not access, download and/or use the Nexplay Services. If You are entering into this Agreement on behalf of a company or other legal entity, You hereby represent that You have the authority to bind such entity to this Agreement, in which case the term “You” shall be construed to refer to such entity. In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, You and Nexplay agree as follows:
1. Nexplay Offerings. Nexplay offers career and skills coaching which includes the right to access and use Nexplay’s mobile applications and online platform (the “Nexplay Platform”), and the right to allow Your constituents for whom a subscription is purchased (each, a “User” and collectively, “Users”) to download and use Nexplay’s applications for specified periods (each, a “Subscription Period”), and standard Nexplay support (collectively, the “Nexplay Services”). Nexplay will provide the Nexplay Services pursuant to orders that You will submit through an order form (once accepted by Nexplay, each, an “Order”). Each Order will include a description of the Nexplay Services, the schedule for the delivery of the Nexplay Services, the applicable Subscription Period, and the associated fees and payment terms for the Nexplay Services. Each Order must be accepted by Nexplay to become valid. Each Order will be deemed incorporated into this Agreement by reference and made an integral part of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order and the terms and conditions of this Agreement, the terms of this Agreement will govern.
2. User Relations, Restrictions, Reports and Reporting. User Relationships and Restrictions. User interactions with Nexplay in connection with the Nexplay Services are subject to Nexplay’s standard end-user terms. Nexplay may use any data, information or materials collected or received from Users through these interactions, in accordance with such end-user terms. You are responsible for establishing Your own policies (if any) with Users as to what information is appropriate to share as part of the Nexplay Services. Users will use the Nexplay Platform subject to terms set forth in this provision, and You will not have Your own entity-wide account or direct access to the Nexplay Platform. Any passwords for the Nexplay Platform are Nexplay’s confidential information. You will not (and will not allow anyone else to) (a) rent, lease, copy, disclose, provide access to or sublicense the Nexplay Platform, (b) use the Nexplay Platform for the benefit of, or to provide any service to, a third party, or (c) publicly disseminate information regarding the performance of the Nexplay Platform. Nexplay Reporting. If set forth in the description of services for the applicable Order, Nexplay will, during the term of this Agreement, provide You with reporting outlining certain statistics regarding the Nexplay Services the Users received (“Nexplay Reporting”). You may only use the Nexplay Reporting for Your internal business purposes, in compliance with all applicable laws. Consistent with Nexplay’s standard end-user terms and its confidentiality policies, Nexplay will not disclose User-specific coaching content or results to You.
3. Fees and Payment Terms. The fees and payment terms applicable to the Nexplay Services and related support are set forth in the applicable Order. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is finally paid in full.
4. Term, Termination and Effects of Termination. Unless earlier terminated as set forth in this Agreement, this Agreement commences upon the date You first access, download or use the Nexplay Services (“Effective Date”) and continues to the end of the last effective Subscription Period. Unless otherwise set forth in an Order, Nexplay Services shall have a term of 12 months and shall automatically renew for additional one-year terms unless either party provides notice of non-renewal to the other party no later than 30 days prior to the renewal date. Nexplay may change the pricing for Subscription Terms subsequent to the initial Term (each a “Renewal Term”), in its sole discretion. Either party may terminate this Agreement (including all related Orders) for cause if the other party fails to cure any material breach of this Agreement (including a failure to pay fees) within 10 days after written notice. Upon any expiration or termination of this Agreement, (a) Nexplay will cease providing the Nexplay Services, (b) You and the Users will cease any access to the Nexplay Platform, except Users may contract individually with Nexplay for coaching separately from Nexplay’s client relationship with You, and (c) You may retain and continue use of all Nexplay Reporting provided by Nexplay prior to the effective date of termination or expiration of this Agreement, except if Nexplay terminates this Agreement for cause. Notwithstanding any terms to the contrary in this Agreement, (i) in addition to this sentence, Sections 2, 3, 6, 7, and 8 will survive any termination or expiration of this Agreement, and (ii) no refunds will be issued.
5.Representations and Warranties. Each party represents and warrants that (a) this Agreement is valid, binding and enforceable against it in accordance with its terms, and (b) it will fulfil its obligations under this Agreement in accordance with all applicable laws.
6. Disclaimer. EXCEPT AS SET FORTH IN SECTION 5, NEXPLAY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. COACHING DOES NOT CONSTITUTE MEDICAL ADVICE OR THERAPY. NEXPLAY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF NEXPLAY.<><>
7.Limitation of Liability. EXCEPT FOR YOUR BREACH OF THE RESTRICTIONS IN SECTION 2 OR YOUR OTHER MISAPPROPRIATION OF NEXPLAY’S INTELLECTUAL PROPERTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; AND (B) EITHER PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO NEXPLAY DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT.
8. General Provisions. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois applicable to agreements made and to be entirely performed within the State of Illinois, without resort to its conflict of law provisions. The state or federal court in Cook County, Illinois will be the jurisdiction in which any suits should be filed if they relate to this Agreement. Ownership. As between the parties and subject to the grants expressly set forth in this Agreement, Nexplay owns all right, title and interest in and to the Nexplay Services and anonymous/aggregate data, feedback and any and all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights embodied in or related to the foregoing. Publicity. You consent to (a) Nexplay’s use of Your name and logo on the Nexplay websites and publicly-available printed materials, identifying You as a customer of Nexplay and describing Your use of Nexplay’s products and services, and (b) a press release with respect to Your use of Nexplay’s products and services. Subcontractors. Nexplay may use the services of third-party coaches and other subcontractors and permit them to provide the Nexplay Services. Third-Party Tools. You acknowledge and agree that the Nexplay Services utilize certain third-party videoconferencing, communications tools and other services used by Users in connection with Nexplay Services, e.g., Skype or FaceTime (“Third-Party Tools”). While user data provided to Nexplay through Third-Party Tools remains subject to Nexplay’s standard end-user terms, use of Third-Party Tools themselves is subject to the terms and conditions of the Third-Party Tool providers. Nexplay is not responsible for the operation of or any changes to the Third-Party Tools or the acts or omissions of Third-Party Tool providers. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by You, by operation of law or otherwise, without the prior written consent of Nexplay, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Nexplay may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. Notices. Notices will be deemed given as of the day they are received by email, messenger, delivery service, or U.S. mail (postage prepaid, certified or registered, return receipt requested), and addressed as set forth below, or to such other address as the party to receive the notice so designates by notice. Waiver and Severability. A party’s delay or failure to exercise a right or remedy will not result in a waiver of that right or remedy. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable under the governing law, the remaining provisions will remain in full force and effect, and will be construed so as to most nearly reflect the parties’ intent with respect to such provision. Miscellaneous. This Agreement, including all Orders, constitutes the entire agreement between the parties and supersedes all previous or contemporaneous agreements between the parties, relating to its subject matter, and any change to its terms must be in writing and agreed by each of the parties.