API Terms of Use Agreement

Version 1.4

Last revised on: Nov 22nd, 2017

PLEASE READ THIS TERMS OF USE AGREEMENT ("TERMS" or "AGREEMENT") CAREFULLY. BY CLICKING THE "ACCEPT" BUTTON OR ACCESSING OR USING THIS WEBSITE ("WEBSITE") OR THE NEXOSIS, INC. ("NEXOSIS" OR "WE", "US", "OUR") API, INCLUDING USING THE SERVICES AVAILABLE VIA THE WEBSITE AND API ("SERVICE"), COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH NEXOSIS, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT, AND TO BIND THAT ENTITY TO THIS AGREEMENT. THE TERM "YOU" AND "YOUR" OR "CUSTOMER" REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU COMPLETED THE REGISTRATION PROCESS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE API. Nexosis and you may be referred to individually as a "Party" and collectively as the "Parties".

1. Changes to These Terms

We may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. If we make any material changes, and you have registered with us to create an Account (as defined in section 3.a below) we will also send an email to you at the last email address you provided to us pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Website, API and/or Service and will be effective thirty (30) days after posting notice of such changes on the Website for existing users. We encourage you to check the effective date of these Terms whenever you visit the Nexosis website. Your continued access or use of our Services constitutes your acceptance of any revisions. If you don't agree to the revisions, you should stop using Nexosis' Services and we are not obligated to provide you with the Services.

2. Changes to Our Services

Nexosis offers application programming interfaces, with related tools and documentation (collectively, the "API") that developers can use within software applications or websites (your "Application") to access the Nexosis machine learning platform. Certain services and functionalities available via the Service are free of charge. However, Nexosis may, in its sole discretion charge fees in connection with certain services, such as providing unlimited Transactions (as defined below). As used herein, a "Transaction" means an HTTP request made via any method to the API.

3. Your Account(s)

  • a. Account. In order to use certain features of the Service, you must register for an account with Nexosis (an "Account"). As part of the account creation process, you'll be asked to provide your email address, create a password, provide your company name, and as an option, include sample API data. Until you apply for an account, your access to our Services will be limited to what is available to the general public. When registering an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must also keep that information true, accurate, current and complete after you create your account.
  • b. Nexosis may suspend or terminate your Account if you breach any of the terms of this Agreement. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Nexosis of any unauthorized use, or suspected unauthorized use, of your Account, or any other breach of security. Nexosis will not be liable for any loss or damage arising from your failure to comply with the above requirements.
  • c. You are solely responsible for all use (whether or not authorized) of our Services under your account(s), including for the quality and integrity of each of your applications. You are also solely responsible for all use and for all acts and omissions of anyone that has access to your application ("End Users"). You agree to take all reasonable precautions to prevent unauthorized access to or use of our Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your account.
  • d. Refusal of Applications. Nexosis will have the right, in its sole discretion, to refuse to permit your use of the API with a particular Application. Unless Nexosis states otherwise, such rejection will not terminate this Agreement with respect to any other Application. Nexosis will have no liability to you for such refusal.

4. Access and Use of Our Services

Subject to your compliance with the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-assignable, non-transferable license to use and access the API as necessary to develop your Application in accordance with the documentation or specifications included in the API. You may use Nexosis' Services, on a non-exclusive basis, solely in strict compliance with these Terms, which may be updated from time to time, and applicable law, including:

  • a. Using our Services as needed to develop your software applications that interface with our Services ("Your Applications") or provide Services through Your Applications,
  • b. Making our Services available to End Users of Your Applications in connection with the use of each of Your Applications, and
  • c. Otherwise using our Services solely in connection with and as necessary for your activities under these Terms.

5. Our Use and Storage of Customer Data

You acknowledge that you have read Nexosis' Privacy Policy and understand that it sets forth how we will collect, store, and use your Customer Data. "Customer Data" consists of information made available to us through your use of our Services under these Terms, which includes information such as your name, contact information, billing records, call or messaging logs, and traffic routing information, as well as the content of communications sent through or integrated with our Services. If you do not agree to Nexosis' Privacy Policy, you must stop using our Services.

Except as agreed by Nexosis and you in writing, Nexosis may periodically delete your Customer Data. Further, data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data.

You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications stored on our systems, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.

6. Restrictions and Limitations

  • a. Restrictions. You agree that you will not, and will not assist, permit, authorize, or enable others to do any of the following restrictions (each, a "Restriction") without our express written consent:
    • i. Reverse engineer or decompile the Website, API or Service (collectively, the "Nexosis Properties") or any component thereof, or attempt to create a substitute or similar service through use of or access to the Nexosis Properties, unless this is expressly permitted or required by applicable law;
    • ii. Copy, rent, lease, sell, transfer, assign, sublicense, or alter any part of the Nexosis Properties;
    • iii. Use Nexosis' name to endorse or promote any product, including a product derived from the Nexosis Properties;
    • iv. Use the Nexosis Properties for any illegal, unauthorized, or otherwise improper purposes, or in any manner which would violate this Agreement;
    • v. Remove any legal, copyright, trademark, or other proprietary rights notices contained in or on the API or our Services;
    • vi. Use the Nexosis Properties in a manner that, as determined by Nexosis, in our sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation;
    • vii. Request, collect, solicit, or otherwise obtain access to sign-in names, passwords, or other authentication credentials for Nexosis, other than by directing users to Nexosis in the mechanism specifically provided by the API;
    • viii. Imply inaccurate creation, affiliation, sponsorship, or endorsement of you, or your Application;
    • ix. Use any robot, spider, site search/retrieval application, or other device to collect information about users for any unauthorized purpose.
  • b. Usage Limitations: Users of Development Accounts may not perform more than the number of Transactions that have been credited to your Account and/or for which applicable fees have been paid. Notwithstanding the foregoing, we may limit:
    • i. The number of network calls that your Application may make via the API;
    • ii. The maximum file size; and
    • iii. Anything else about the API as we deem appropriate, in our sole discretion.

    We may impose or modify these restrictions and limitations without notice. We may utilize technical measures to prevent over-usage and stop usage of the API by an Application after any usage limitations are exceeded or suspend your access to the API with or without notice to you in the event you exceed any such limitations.

  • c. Compliance. You shall comply, and shall ensure that any third parties performing any services on your behalf comply, with all applicable foreign and domestic laws, governmental regulations, ordinances and judicial administrative orders, and shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Nexosis, its customers, services provides or to the public.

7. Export Controls

The Services, API and any related products, services and data, information, software programs, and/or materials resulting therefrom, may be subject to international rules that govern the export and re-export of software. You shall comply with all international and domestic export and re-export laws that apply to the Services and API and any related products or services, as well as end-user, end-use and destination restrictions issued by national governments. The Services and API are subject to the Export Administration Regulations ("EAR") and thus may not be exported, re-exported or downloaded by any person in any controlled countries under the EAR, which currently include Iran, North Korea, Cuba, Syria, Sudan and Crimea. Moreover, the Services and API may not be exported, re-exported or downloaded by any person or entity subject to U.S. or International sanctions regardless of location. You should consult http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern for lists that you must check.

8. Affiliates

Affiliates are any entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, or employee. (Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us or is under common control with us.) If applicable to you, your affiliates may order Services directly from us under these Terms, provided that all of your affiliate's activities are subject to these Terms. You will be responsible for the acts and omissions of your affiliates in connection with each affiliate's use of our Services.

9. Add-ons

Nexosis may make available through the Nexosis Services additional features, functionality, and services offered by its third-party partners ("Add-ons"). Your use of Add-ons is subject to these Terms and to the applicable fees. You acknowledge for each Add-on you purchase through the Nexosis Services, these Terms constitute a binding agreement between you and the third party licensor of that Add-on ("the Add-on Partner") only. The Add-on Partner of each Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Partner of that Add-on; Nexosis is acting as agent for the Add-on Partner in providing each such Add-on to you; Nexosis is not a party to the license between you and the Add-on Partner with respect to that Add-on; and Nexosis is not responsible for that Add-on, the content therein, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that Nexosis, and Nexosis' subsidiaries, are third party beneficiaries of the agreement between you and the Add-on Partner for each Add-on, and that Nexosis will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.

By purchasing an Add-on, you grant Nexosis permission to share your Application, Content, and user information with the Add-on Partner as necessary in order to provide you the Add-on.

10. Fees, Payment Terms, Taxes

  • a. Payment. You agree to pay all fees or charges to your Account, if any, in accordance to the applicable fees charges and billing terms outlined under the pricing plan (“Plan”) in which the Account is registered for and in effect at the time a fee or charge is due and payable. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Nexosis the right to immediately invoice your Account for all fees and charges due and payable to Nexosis hereunder and that no other additional consent is required to charge the credit card or debit the bank account provided to Nexosis for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to Nexosis (including upon any termination or suspension of this Agreement). You agree to immediately notify us of any change in your billing address or credit card used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you. All fees for the Services are non-refundable. If Nexosis requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
  • b. Taxes. Taxes. Nexosis’ fees are net of any applicable sales or use tax (“Sales Tax”). If any Services, or payment for any Services, under this Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Nexosis, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority.
  • c. Fee Disputes. You must notify us in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to us within sixty (60) days of the applicable charge and we will work together with you to resolve the applicable dispute promptly. If you do not provide us with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you.
  • d. Suspension. If you fail to pay any amounts due by you under Section 10 of the Agreement, within thirty (30) days, we may downgrade your services to the Community Tier with or without prior notice to you. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of our services pursuant to this section.

11. Ownership and Confidentiality

  • a. Ownership. As between you and Nexosis, Nexosis owns all right, title and interest in and to the Nexosis Properties and to all output and executables of the Nexosis Properties. Except for the license granted in Section 4 (Access & Use of Our Services), this Agreement grants you no right, title, or interest in any intellectual property owned or licensed by us, including the Nexosis Properties and Brand Features (as defined below). You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices and restrictions contained in this Agreement. We claim no ownership or control over your Application or the content sent, posted or displayed through your Application, except for any Nexosis Properties therein.
  • b. Use of Marks. Subject to these Terms, we both grant each other the right to use and display each other's name and logo (the Licensor Marks) on our respective websites and in other promotional materials solely in connection with each of our respective activities under these Terms. All of this use of the Licensor Marks will be in accordance with the each other's applicable usage guidelines and will inure to the benefit of Licensor. The one of us using the other's Licensor Marks under this subsection will not use, register or take other action with respect to any of the Licensor Marks, except to the extent allowed in advance in writing by the one of us whose Licensor Marks are being used. In using the Licensor Marks under this subsection, the one of us using the other's Licensor Marks will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. The one of us using the other's Licensor Marks will not, at any time, misrepresent the relationship between us. The one using the other's Licensor Marks will not present itself as an affiliate or other legal agent of the one of us whose Licensor Marks are being used. The rights to use and display each other's Licensor Marks under this subjection will end automatically in the event these Terms terminate. You must submit to us a copy or image of any media release or advertising that includes any the Licensor Marks by emailing us at marketing@nexosis.com.
  • c. Modifications. We may release subsequent versions of the API and require you to use the most recent version. Your continued use of the API on any website after such a release will be deemed your acceptance of the modifications.
  • d. Confidentiality. "Confidential Information" means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. "Confidential Information" does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party's rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.

    Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party's prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.

  • f. Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 11 and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.

12. Relationship

  • a. Marketing. We may publicly refer to you, orally or in writing, as an API licensee of Nexosis (including in a directory of our API developers) and we may publish your name and logo on the Nexosis website or promotional materials without prior written consent. You grant us all necessary rights and licenses to do so.
  • b. Support. We may provide you with support, upgrades, or modifications for the API in our sole discretion. You shall appoint at least one support contact, and will notify Nexosis of such contact, at the outset of this Agreement ("Support Contact"); provided, that, you may update such Support Contact upon prior written notice to Nexosis. Each Support Contact must be appropriately trained and qualified to provide Nexosis with technical support and guidance in assisting you with any issues related to your Application, or to the Services or API. In the event we provide any support, it will be considered part of the API and Service for purposes of Section 13 (Warranties and Disclaimer) and Section 14 (Indemnification) below, and we may terminate the provision of such support or modifications to you at any time without notice or liability to you. You understand and agree that you are solely responsible for providing user support and any other technical assistance for your Application. We may redirect users and potential users of your Application to your email address on file for purposes of answering general Application inquiries and support questions.
  • c. Independent Development. You acknowledge and agree that Nexosis may be independently creating applications, content and other products and services that may be similar to or competitive with your Application and its content, and nothing in this Agreement will be construed as restricting or preventing Nexosis from creating and fully exploiting such applications, content and other items, without any obligation to you. If you elect to provide us with any comments, suggestions, or feedback related to our API, you assign all right, title and interest in and to such comments, suggestions and feedback to us, and acknowledge that we will be entitled to use, implement and exploit any such feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting, or compensation or other duty to account.

13. Warranties and Disclaimers

THE NEXOSIS PROPERTIES ARE PROVIDED "AS IS," "WHERE IS," "WITH ALL FAULTS" AND WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. NEXOSIS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/ NON-INFRINGEMENT. SOME ASPECTS OF THE API ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER. WE DO NOT REPRESENT, WARRANT, OR MAKE ANY CONDITION THAT THE NEXOSIS PROPERTIES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE API OR THE SERVICE, ALL OF WHICH IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOUR USE OF THE API IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM USE OF THE API INCLUDING, BUT NOT LIMITED TO, FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM OUR SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE USER AGREEMENT.

14. Indemnification

  • a. By You. You will defend, indemnify and hold harmless Nexosis and its affiliates, and their respective directors, officers, agents, licensors, and other partners and employees from and against any third-party claim arising from or in any way related to your Application, your use of the Nexosis Properties, or your breach of any obligation herein, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.
  • b. By Nexosis. Nexosis will, at its expense, defend or, at its option, settle any claim, action or allegation brought against you alleging that the API infringe any valid copyright, United States patent or misappropriate a trade secret of a third party and will pay any final judgments entered into. You will give prompt written notice to us of such a claim and you will give us the exclusive right to defend any such claim, action, or allegation and or to make settlements thereof at our discretion. You will give such assistance and information as we may reasonably require to settle or to oppose such claims. This Section 14.b. provides your exclusive remedy for any infringement claims or remedies.
  • c. Options. In the event any infringement claim, action or allegation is brought or threatened, we may, at our sole option and expense: (i) procure for you the right to continue use of the API or infringing part thereof; (ii) modify or amend the API or infringing part thereof, or replace the API or infringing part thereof with similar functionality; or (iii) if neither of the preceding is commercially practicable terminate the Agreement and the licenses granted herein.
  • d. Exclusions. This indemnification obligation will not apply if the infringement arises as a result of (i) any use of the API in a manner other than as specified in this Agreement, (ii) any use of the API in combination with other products, equipment, devices, systems, or data not supplied by us to the extent such claim is directed against such combination, or (iii) any alteration, modification, or customization of the API made by any party other than Nexosis or our authorized representative if such infringement would not have occurred without such alteration, modification or customization.

15. Exclusion of Damages; Limitations of Liability

NEXOSIS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR RELIANCE DAMAGES RELATED TO THIS AGREEMENT OR THE NEXOSIS PROPERTIES. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER YOU WERE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATED TO THE NEXOSIS PROPERTIES EXCEED THE AMOUNTS PAID BY YOU TO NEXOSIS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDEING THE ACT(S) GIVING RISE TO LIABILITY HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE PARTIES HAVE NEGOTIATED THIS AGREEMENT WITH DUE REGARD FOR THE BUSINESS RISK ASSOCIATED WITH THE ARRANGEMENTS DESCRIBED IN THIS AGREEMENT.

16. Termination of These Terms

  • a. Term. You agree that this Agreement will be deemed to be in effect upon the date on which you accept this Agreement, in accordance with the preamble.
  • b. Suspension and Termination. We may change, suspend, or discontinue the availability or any functionality of the Nexosis Properties, or any aspect of your access to the API, at any time without notice to you and without incurring any liability to you. We may also impose limits on certain features and services or restrict your access to part or all of the API or the Service without notice to you and without incurring any liability to you. Furthermore, Nexosis may limit, suspend, or terminate your use of the Nexosis Properties (and your rights under this Agreement) at any time. In addition, this Agreement will terminate automatically and without notice immediately upon any breach of the terms of this Agreement by you.
  • c. Your Termination. You may terminate this Agreement for any reason or no reason at all, at your convenience, by ceasing your use of the Nexosis Properties, and providing us written notice of your intent to terminate this Agreement.
  • d. Effect on Termination. Upon termination of this Agreement: (i) all rights and licenses granted will terminate immediately; (ii) any and all payment obligations, if any, will be due; and (iii) each party will promptly return to the other party all Confidential Information of such party in its possession, custody, or control. Neither party will be liable to the other party for damages of any sort resulting solely from the termination of this Agreement. Notwithstanding clause 7.4(i), Nexosis' sole obligation as it relates to copies of, or references or links to, your Application will be to, upon written request from you, make commercially reasonable efforts, as determined in its sole discretion, to remove all such references and links.
  • e. Deletion of Data. Nexosis will use reasonable efforts to delete of your password, name, credit card information and all related information associated with or inside your Account (or any part thereof), excluding data related to past Transactions upon termination of this Agreement, or upon request.
  • f. Survival. Sections 11.a (Ownership), 11.b (Brand Features), 12.c (Independent Development), 10 (Fees and Payment Terms), 16.f (Survival), and 11 (Ownership and Confidentiality) through 17 (General) will survive any termination of this Agreement.

17. General

  • a. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between you and Nexosis and governs your use of the Nexosis Properties. If, through accessing or using the Nexosis Properties, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party's terms and conditions applicable thereto, and this Agreement will not affect your legal relationship with such third party.
  • b. Relationship of Parties. The Parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the Parties. Neither Party is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
  • c. Governing Law. This Agreement will be governed in accordance with the laws of the state of Ohio without reference to its conflicts of law principles.
  • d. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
  • e. Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, to a third party without the other Party's written consent, except that a Party may assign this Agreement without such consent as a consequence of a merger, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains. Any assignment in violation of the foregoing is null and void. This Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns.
  • f. Waiver. Failure to enforce or a waiver by either Party of one default or breach of the other Party will not be considered to be a waiver of any subsequent default or breach.
  • g. Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the Parties' respective addresses set forth on the Cover Page. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. You agree that Nexosis may send any privacy or other notices, disclosures, reports, documents, communications and other records regarding the Service (collectively, "Notices") in electronic form to: (1) the email address that you provided during registration, or (2) by posting the Notice on the Service. The delivery of any Notice is effective when posted to the Service or sent by Nexosis (whichever first occurs), regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling your Account. You must give notice to us in writing via email to support@nexosis.com or another address otherwise expressly provided.
  • h. Force Majeure. Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.
  • i. Government End Users. The API is "commercial computer software" and any associated documentation is "commercial computer software documentation," pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the API or such documentation by the United States Government will be governed solely by the terms of this Agreement.
  • j. Remedies. All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. A party's breach or threatened breach of any of its covenants or agreements in this Agreement may cause irreparable injury that is inadequately compensable in monetary damages.

18. Agreement to Arbitrate

Before bringing a formal legal case, please first try contacting our Customer Support. Most disputes can be resolved that way.

  • a. We Both Agree to Arbitrate. If we can't resolve our dispute through our customer support, you or any of your affiliates on one hand and Nexosis and any of Nexosis' affiliates on the other hand, all agree to resolve any dispute arising under these Terms, or Privacy Notices, or in relation to our Services by binding arbitration in a location that we have both agreed to.

    This applies to all claims under any legal theory, unless the claim fits in one the exceptions below in Subsection 18.b (Exceptions to Agreement to Arbitrate). It also applies even after you have stopped using your Nexosis account or have deleted it. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too.

  • b. Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and Nexosis and its affiliates on the other hand, agree that we will go to court to resolve disputes relating to Your, your affiliate's, Nexosis' or Nexosis' affiliates intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents).

    Also, any of us can bring a claim in small claims court either in Columbus, Ohio or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court.

    In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.

  • c. Details of Arbitration Procedure. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA's rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879.

    The arbitration will be governed by the then-current version of AAA's Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent any thing described in this Section 18 conflicts with the Rules, the language of this Section 18 applies.

    Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 18 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.

    The arbitrator's award will be based on the evidence admitted and the substantive law of the State of Ohio and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.

    Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.

  • d. Class Action Waiver. Both you and your affiliates, on one hand, and Nexosis and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Nexosis and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other Nexosis customers, and cannot be used to decide other disputes with other customers.

    If a court decides that this Subsection 18.d (Class Action Waiver) is not enforceable or valid, then the entire Section 18 (Agreement to Arbitrate) will be null and void. But, the rest of the Terms will still apply.