If you as the customer, purchase subscription(s) and add users, then both Customer and Users are bound by this agreement. Please make sure you have the necessary authority to enter into the Contract on behalf of Customer before proceeding.
“Customer” is the organization that you represent in agreeing to the Contract. If your team is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the team.
If you signed up for a plan using your corporate email domain, your organization is Customer, and Customer can modify and re-assign roles on your team (including your role) and otherwise exercise its rights under the Contract. If Customer elects to replace you as the representative with ultimate authority for the team, we will provide you with notice following such election and you agree to take any actions reasonably requested by us or Customer to facilitate the transfer of authority to a new representative of Customer.
Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) obtain all rights, permissions or consents from Authorized Users and other Customer personnel that are necessary to grant the rights and licenses in the Contract and for the lawful use and transmission of Customer Data and the operation of the Services.
A subscription allows an Authorized User to access the Services. No matter the role, a subscription is required for each Authorized User. A subscription may be procured through the subscription interface. Each Authorized User agrees to the User Terms in activating their access.
Feedback is Welcome
The more suggestions our customers make, the better the Services become. If Customer sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so Customer grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized User or other Customer personnel.
Our Services can include links and access to third party services, by the customer’s choice. We do not warrant or support non-Nextpond products. Any use of a non-Nextpond product is solely between customer and the applicable third-party provider. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Non-Nextpond Product.
Use of the Services
Customer must comply with the Contract and ensure that its Authorized Users comply with the Contract and the User Terms. We may review conduct for compliance purposes, but we have no obligation to do so. We aren’t responsible for the content of any Customer Data or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Data. The Services are not intended for and should not be used by anyone under the age of 16. Customer must ensure that all Authorized Users are over 16 years old. Customer is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the Services.
Our Removal Rights
If we believe that there is a violation of the Contract that can simply be remedied by Customer’s removal of certain Customer Data or Customer’s disabling of a Non-Nextpond Product, we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.
For Customers that purchase our Services, fees are specified at the Subscription interface within the software and in our Subscribe section on our website. Payments are in advance and payment obligations are non-cancellable and are non-refundable. Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.
Limit access for Non-Payment
If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, downgrade any fee-based Services to limited or no access until those amounts are paid in full. Customer acknowledges and agrees that this will result in a decrease in access, features and functionality and potential loss of access to Customer Data.
Providing the Services
We will (a) make the Services available to Customer and its Authorized Users as described in the Contract; and (b) not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorized Users and any processing related to such use or otherwise necessary for the performance of the Contract.
Be assured that (a) the Services will perform materially (b) subject to the “Non-Nextpond Products” and “Limit access for Non-Payment” sections, we will not materially decrease the functionality of a Service during a subscription term. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in the sections titled “Termination for Cause” and “Effect of Termination”.
Keeping the Services Available
We will use commercially reasonable efforts to make the Services are available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will endeavour to provide Customer with notice, if we think it may exceed five (15) continuous minutes. Although rare, from time to time, unexpected downtime may occur, and we will use commercially reasonable efforts to rectify such downtime and will communicate with our customers via social media and within the application in such instances. We accept no responsibility or liability for any losses or damages during periods of downtime.
Protecting Customer Data
The protection of Customer Data is a top priority for us and we use quality administrative, physical, and technical safeguards. Those safeguards include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control or when Customer chooses to use unencrypted gateways (e.g., IRC/XMPP clients) to connect to the Services. We are not responsible for what Customer’s Authorized Users or Non-Nextpond Products do with Customer Data. That is Customer’s responsibility.
Customer will own all Customer Data. Subject to the terms and conditions of the Contract, Customer grants Nextpond non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Non-Nextpond Products created by or for Customer, only as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license. Nextpond takes no responsibility for the validity, rights or ownership of the Customer data which is stored within Nextpond software.
We own and will continue to own our Services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Services. We grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Contract and the User Terms. All our rights not expressly granted by this license are hereby retained.
30-day free trial expires at day 31. Paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms.
Unless an Order Form says something different, (a) all subscriptions automatically renew (without the need to go through the Services-interface “check-out” or execute a renewal Order Form) for additional periods equal to one (1) month; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.
Termination for Cause
We or Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.
Termination Without Cause
Customer may terminate its free subscriptions immediately without cause. We may also terminate Customer’s free subscriptions without cause, but we will provide Customer with thirty (30) days prior written notice.
Effect of Termination
Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Data Portability and Deletion
We are custodians of Customer Data. During the term of a team’s subscriptions, Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have assorted products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a team’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.
Representations; Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms.
Except as expressly provided for herein, the services and all related components and information are provided on an “as is” and “as available” basis without any warranties of any kind, and we expressly disclaim all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a purpose, and non-infringement. Customer acknowledges that we do not warrant that the services will be uninterrupted, timely, secure, or error-free.
Limitation of Liability
Other than in connection with a party’s indemnification obligations hereunder, in no event will either customer’s or the Nextpond aggregate liability arising out of or related to the contract or the user terms (whether in contract or tort or under any other theory of liability) exceed the total amount paid by customer hereunder in the twelve (12) months preceding the last event giving rise to liability. The foregoing will not limit customer’s payment obligations under the “payment terms” section above.
In no event will either customer or any member of the Nextpond extended family have any liability to the other party or to any third party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether the party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by applicable law.
The Services support logins using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Services. We therefore will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else if any event leading to such damages, losses or liability would have been prevented using 2FA. Additionally, Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third-party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.
Our Indemnification of Customer
We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with, a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer Data or Non-Nextpond Products; and (b) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting our defence and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedy against us and the Nextpond Extended Family for, any Claim Against Customer.
Customer’s Indemnification of Us
Customer will defend Nextpond and the members of the Nextpond Extended Family (collectively, the “Nextpond Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Authorized Users’ violation of the Contract or the User Terms (a “Claim Against Us”), and will indemnify the Nextpond Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Nextpond Indemnified Party in connection with or as a result of, and for amounts paid by a Nextpond Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting Customer’s defence and settlement of such matter. This section states your sole liability with respect to, and the Nextpond Indemnified Parties’ exclusive remedy against Customer for, any Claim Against Us.
Limitations on Indemnifications
Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) relating to the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labelled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information about the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract.
Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please review the Data Request Policy for details on how requests may be made for the disclosure of Customer Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided regarding the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. We don’t want to list customers who don’t want to be listed, so Customer may send us an email to email@example.com stating that it does not wish to be used as a reference.
Neither us nor Customer will be liable due to any failure or delay in the performance of its obligations because events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Relationship of the Parties; No Third-Party Beneficiaries
The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to the Contract.
Email and Nextpond Messages
Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to Customer through the Services (e.g., a Nextpond notification). Notices to Nextpond will be sent to firstname.lastname@example.org, except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to email@example.com. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying Nextpond of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
The Contract, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Queensland Australia.
Venue; Waiver of Jury Trial; Fees
The state and federal courts located in Queensland, Australia will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Contract or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts.
Level 7, 110 Mary Street
Brisbane, Qld 4000