Last Updated: May 10, 2024
Welcome to NexStack, an online multi-tool business management, efficiency, and communications platform (the “Platform”). The Platform and its related services, products, software programs and content, and any applications, software or services that provided by NexStack are collectively referred to herein as the “Services”.
These Customer Terms of Service (these “Terms”) and any Order Forms (if applicable) together form an agreement between Customer and us, and set forth the terms and conditions by which Customer may access and use our Services, including as a downloadable program or App available via our website (“NexStack Site”), or via an App store on a user’s device (e.g., Apple’s App Store for iOS or Google Play for Android).
If Customer conducts business in an industry for which there are separate supplemental terms, Customer also hereby agrees to the applicable supplemental terms as outlined in the relevant Customer Supplemental Terms Section below, and in the event of a conflict between the provisions of the Customer Supplemental Terms that are relevant to Customer’s business, and the rest of these Terms, the relevant Customer Supplemental Terms will supersede and control.
If you are an Authorized User or an Individual User (in each case as defined in Section 2 below), the User Terms of Service govern your access and use of the Services, while these Terms shall govern the subscription of the Services by a Customer.
CUSTOMER
The party subscribing to the Services is the “Customer” (or “You”).
If you subscribe the Services on behalf of an organization and/or sign up for the Services using an email under your organization’s email domain, then such organization is the Customer, and you represent and warrant to us that (a) you are an authorized representative of such organization with the authority to bind such organization to these Terms, and (b) you agree to these Terms on such organization’s behalf. Note that since the organization you represent is the Customer, the Customer has the right to replace you at its discretion and designate another person as its representative with respect to the Services. In such instance, you agree to take any actions reasonably requested by us or Customer to assist with the transfer of responsibilities to a new representative of Customer, including providing applicable login credentials with respect to the Customer account.
If a user sets up a workplace and an organization, even in his or her own capacity rather than on behalf of a legally incorporated entity, the individual creating the workplace and the organization on NexStack becomes a Customer and is no longer an Authorized User or Individual User. For example, if you sign up using your personal email and build your organization and have other users join your organization as members, then you become a Customer and shall be subject to these Terms rather than the User Terms of Service.
AUTHORIZED USERS AND INDIVIDUAL USERS
Subject to the terms applicable to the subscription ordered by Customer pursuant to Section 3, Customer may invite and authorize individuals to access a dedicated Workplace set up by Customer. Each such authorized individual will be deemed an “Authorized User”. A “Workplace” is made up of channels, where team members can communicate and work together, i.e., a digital space where a group of users may access the Services.
In addition, an individual may access and use the Services for personal purposes by registering a personal account, or Customer may invite individuals to access other parts of the Services such as NexStack Meetings without creating an account (“Individual Users”).
Customer has many tools and controls over its Authorized Users’ and Individual Users’ use of its Workplace and any content or information the Authorized Users and Individual Users submit to the Workplace, such as messages, chats, documents, information, communications, livestreams, videos, chatbots, Apps or any other content (collectively, “Customer Data”). For example, Customer may enable or disable an Authorized User’s access to the Workplace, review, edit and remove Customer Data, grant access to Customer Data to third parties, enable or disable third party integrations, manage the Authorized Users’ permissions, retention, and export settings, among other choices. Customers may also exclusively provide us with instructions on what to do with Customer Data.
Customer is solely responsible for (a) informing its Authorized Users and Individual Users of all Customer policies and practices that are relevant to their use of Customer’s Workplace; (b) any settings selected by Customer through the Services that may impact the Authorized Users’ and Individual Users’ use of the Customer’s Workplace or access to Customer Data; and (c) ensuring the transfer and processing of Customer Data complies with all applicable laws. We have no liability with respect to the content of any Customer Data or the way Customer or its Authorized Users or Individual Users choose to use the Services to store or process any Customer Data.
In order to access Customer’s Workplace, each Authorized User must create an account with the Platform. Customer shall ensure that its Authorized Users keep their account login credentials confidential and not disclose to any third party. We are not liable for any damages, losses or liability to Customer, its Authorized Users, or a third party, for any activity occurring under the Authorized Users’ accounts if accessed with the correct login credentials.
SUBSCRIPTIONS
You can subscribe for, access and use free services without a payment requirement.
Paid Services can be subscribed through NexStack Site or via an offline order form (each, an “Order Form”), which regulates the version, term, price and other relevant information of the ordered subscriptions. Customer expressly agrees that the Customer’s use of the Services and the fees therefor will be determined in accordance with our measurement and data.
Customer shall comply with the terms under the Order Form, including but not limited to, not exceeding the number of Authorized Users designated in the Order Form (if so agreed in the Order Form). NexStack may, upon reasonable advance written notice to you, audit your use of the Services. If an audit reveals that you have used the Services beyond the agreed scope set forth in the Order Form, in addition to any other remedies NexStack may have, the fees for such excessive use of the relevant Services shall immediately become due and payable upon our notice to Customer in writing (including without limitation by email or in-App message) of the relevant fees and Customer shall pay such fees within thirty (30) days following our notice.
Customer agrees to pay the applicable fees and taxes for all subscriptions. All bank charges shall be borne by Customer. Customer agrees that we may calculate taxes payable by Customer based on the billing information provided at the time of purchase. We reserve the right to change our subscription plans or adjust pricing for the Services in any manner and at any time as we may determine at our sole and absolute discretion. Except as otherwise provided in these Terms, any price changes or changes to Customer’s subscription plan will take effect following reasonable notice to Customer. All subscription fees are payable in accordance with the payment terms in effect at the time the subscription fee becomes payable. Payment can be made by credit card, debit card, or other means that we may permit. Subscriptions will not be provided until payment has been received in full, unless otherwise agreed by us.
NexStack may, at our sole discretion, offer different payment terms (e.g., a lump sum payment, payment on a monthly basis, payment on a quarterly basis) to You with respect to the payment of Your subscription fees for a period You commit to subscribe. Any such payment terms other than a lump sum payment made available by NexStack is referred to as a “Periodic Payment Arrangement”. The Periodic Payment Arrangement may not be available to each Customer or for all Services. If NexStack makes available any Periodic Payment Arrangement to You for the Services You subscribe and You choose such Periodic Payment Arrangement, You authorize us and relevant third parties (e.g., payment service provider) to store Your payment method and automatically charge Your payment method before the commencement of each interval of the applicable Periodic Payment Arrangement You choose. Selection of Periodic Payment Arrangement does not affect Your obligation to pay the fee for the entire subscription period you commit (e.g., if You subscribe certain Services for one year period and choose to pay the fee on a monthly basis, You are liable to pay the fee for the entire one-year period even if You use the subscribed Services for less than one year). Even if You select a Periodic Payment Arrangement, You retain the option to pay any outstanding fees for Your subscription prior to the relevant due date(s) in the payment method agreed by us. For the avoidance of doubt, the Periodic Payment Arrangement does not create any loan or credit arrangement between NexStack and Customer. Customer expressly acknowledges and agrees that additional terms and conditions of Periodic Payment Arrangement may be applicable and You shall comply with such additional terms and conditions where applicable. Such additional terms and conditions may be displayed to You on the page where you select the Periodic Payment Arrangement or otherwise notified to You.
Customer acknowledges that we may engage third party payment service providers in connection with the processing of payments under these Terms, including without limitation to managing payment information or preventing fraud. The customer acknowledges that additional terms and conditions may apply and agrees to such additional terms and conditions (if any) in connection with the use of any paid services. Customer represents and warrants that Customer is authorized to make the payment in compliance with applicable laws.
In the event Customer elects automatic renewal of subscription (where available), Customer’s subscription will automatically renew for additional periods further to the end of the preceding subscription term, and Customer’s payment method will automatically be charged at the start of each new subscription period for the fees and taxes applicable to that period. Customer may cancel the automatic renewal of Your subscription, provided that Customer must cancel at least thirty (30) days (or another cancellation period as displayed or notified to You) before the subscription period renewal date. We reserve the right to provide a written notice (e.g., by email) of non-renewal to You at least thirty (30) days prior to the subscription automatic renewal date.
Notwithstanding the foregoing, such online subscription availability shall be subject to NexStack’s sole discretion and NexStack may modify the online subscription procedure and other details from time to time.
Except as expressly set forth in these Terms or applicable laws, payments for any subscriptions to the Services are nonrefundable and there are no credits or refunds for subscribed Services used for partial subscription periods. Any fees not paid when due shall accrue interest at the rate of 1.5% per month, or the maximum rate permitted by law, whichever is lower.
If Customer fails to pay the applicable subscription fees on a timely basis, in addition to all other rights and remedies available to us by law or under these Terms (including in Section 14 (Term; Termination), we may downgrade Customer’s subscription plan to a standard free version of the Services and disable access to any paid Services until all overdue amounts are paid in full.
If Customer’s account is downgraded, Customer and its Authorized Users and its Individual Users will lose access to certain features and functionality of the Services and may lose access to certain Customer Data. We shall in no way be responsible for any loss of data or Customer Data because of the Customer’s failure to pay applicable subscription fees. For clarity, in the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term.
Taxes. Unless otherwise stated, NexStack’s fees and pricing do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If NexStack has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide NexStack with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of any doubt, in the event withholding taxes are levied by local tax authorities in respect of the payments under these Terms, You will be responsible for such taxes and make a payment without any deduction to NexStack, grossing up the amount paid as may be necessary. You shall indemnify and hold NexStack harmless from and against any penalties, interest, or other tax liability arising from (a) any failure by You to pay any applicable Taxes, and/or (b) any tax exemption certificate provided by You under this paragraph.
FREE TRIALS AND BETA PRODUCTS
We may, at our sole discretion, allow a Customer to sign up for a trial of the paid Services for a specified number of days (a “Trial Subscription”). Once the Trial Subscription is cancelled or terminated, it will be downgraded to free services and customers can NOT sign up for a trial of the paid services anymore.
At any time and without notice, NexStack reserves the right to (a) modify the terms and conditions of any Trial Subscription or free Services, or (b) cancel any Trial Subscription or free Services.
Occasionally, we offer certain new features that will be identified as “beta” or “pre-release,” or similar wording (each, a “Beta Product”). Beta Products are made available “as is,” and any warranties or contractual commitments we make for other Services do not apply to Customer’s use of Beta Products.
ACCESS TO AND USE OF OUR SERVICES
As between Customer and NexStack, content on the Services (except Customer Data), including the text, software, logos, patents, trademarks, service marks, copyrights, and “look and feel” of the Services, and all intellectual property rights related thereto (“NexStack Content”), is either owned or licensed by NexStack.
Subject to the terms and conditions of these Terms, we grant Customer a non-exclusive, limited, non-transferable, non-sublicensable, revocable license for its Authorized Users and as appropriate, Individual Users, to access and use the Services and to access the NexStack Content solely through Customer’s use of the Services. We reserve all rights not expressly granted herein in the Services and the NexStack Content.
The customer acknowledges and agrees that we may terminate this license at any time for any reason or for no reason.
Customer and its Authorized Users may access NexStack Content solely to access Customer’s Workplace and as permitted under these Terms. Use of NexStack Content or materials from the Services for any purpose not expressly permitted by these Terms is strictly prohibited. Customer shall not, and shall ensure its Authorized Users and Individual Users shall not, copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any NexStack Content for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent. We and our licensors reserve all rights not expressly granted in and to their content.
Customer’s access to and use of the Services is subject to compliance with these Terms and the Acceptable Use Policy. Customer shall comply and ensure its Authorized Users and Individual Users comply with the terms of the Acceptable Use Policy. NexStack may take measures as we deem necessary or appropriate (including without limitation immediate suspension or termination of access to the Services by Customer, its Authorized Users or Individual Users), if Customer breaches these Terms or the Acceptable Use Policy or violates any applicable law.
CUSTOMER DATA
We will process Customer Data only by Customer’s instructions and are not responsible for any Customer Data or for the way Customer or its Authorized Users or Individual Users choose to use the Services to store or process any Customer Data.
Subject to the terms and conditions of these Terms, Customer (on behalf of its Authorized Users and Individual Users) grant us (and our contractors and suppliers) a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable right and license at no cost to use, copy, download, modify, and display the Customer Data for the limited purposes of (i) operating, maintaining and improving the Services and providing Your Customer Data within the Services to other users (such as to allow us to transmit an Authorized User’s messages, documents and calendar invitations on Customer’s Workplace); (ii) addressing or preventing service issues, security issues, customer support issues or technical issues with the Services; (iii) complying with a valid subpoena, court order or other legal requirements as reasonably determined by us; and (iv) other purposes that You consent to and that are consistent with applicable law, these Terms, its related addendums (if applicable) and the Privacy Policy . Customer represents and warrants that it has secured all necessary rights in and to Customer Data from its Authorized Users and/or Individual Users and/or third parties in order to grant the foregoing licenses.
In addition, Customer (on behalf of its Authorized Users and Individual Users) agrees that it is granting its other users on Customer’s Workplace, at no cost, the right (including any intellectual property or related rights and any necessary waivers or consents) to make unrestricted use of the Customer Data, including commenting on and editing the Customer Data.
We accept no liability in respect of any content submitted by users of the Services.
Customer acknowledges that our automated systems may analyze content that users of the Services share with us including emails that are shared through third party integrations to detect spam and malware when content is sent, received and saved.
If we become aware of any Customer Data that violates these Terms, the User Terms of Service or the Acceptable Use Policy that is uploaded by an Authorized User in Customer’s Workplace or otherwise by an Individual User, we may ask Customer to take direct action against such Authorized User or Individual User.
However, NexStack reserves the right to take any action it deems necessary in accordance with these Terms and the Acceptable Use Policy, including without limitation immediately suspending, disabling or terminating the account of or access to the Services by any Authorized User or the relevant Individual User who uploads Customer Data that does not comply with these Terms or the User Terms of Service, applicable law, or the privacy rights, publicity rights, intellectual property, contractual rights or any other rights of any person or entity, or if we determine in our sole discretion that such Customer Data poses a risk of harm to us, other users of the Services or third parties.
AVAILABILITY
NexStack will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) scheduled maintenance as notified in advance; (b) unplanned or emergency downtime; or (c) any unavailability caused by circumstances beyond NexStack’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks.
NexStack offers “ help desk ” email support at [email protected] . Such support is available from 9:00 a.m. - 6:00 p.m. Singapore Time, Monday through Friday, excluding holidays. NexStack will use commercially reasonable efforts to make an initial response to any email inquiry within one (1) business day of its receipt.
THIRD PARTY PRODUCT
The Services include the ability to use certain third party developed applications and software that complement Customer’s use of the Services (each, a “ Third Party Product ”). All available Third Party Products are listed in the NexStack App Directory and Customer may select the Third Party Products that are made available to its Authorized Users, at its discretion. Customer must comply with all the terms set forth in the NexStack App Directory Terms of Service . We do not control the use of such Third Party Products and any use of such Third Party Products is solely at Customer’s discretion and between Customer and the applicable third party provider. We do not warrant the performance, availability, safety or reliability of any such Third Party Product and are not responsible for the applicable third party provider’s performance or failure to perform in any respect. Customer’s access and use of the Third Party Products is solely at its own risk and is subject to the terms and conditions of use and privacy policy(ies) applicable to such Third Party Products.
FEEDBACK AND CUSTOMER REFERENCE
If Customer selects to provide any feedback or comments to NexStack related to the Services (“ Feedback ”), all of such Feedback shall be the sole and exclusive property of NexStack, and Customer hereby assigns any right, title or interest it may have in such Feedback to NexStack. NexStack shall have the right to use and disclose such Feedback in any manner and for any purpose in NexStack’s discretion without remuneration, compensation or attribution to Customer, provided that NexStack is under no obligation to use such Feedback.
Notwithstanding anything herein to the contrary, NexStack may (i) display Your name and logo on our website and related marketing assets as an existing or prior customer of the Services, (ii) use and publish Your Authorized User’s testimonials, Feedback, and Customer case study regarding the Services in publications, presentations and marketing assets used by NexStack, and (iii) mention Customer, Authorized User and related project name (if any), and/or the subscription information in any tender documents.
DATA PRIVACY AND SECURITY
Customer’s access to the Services may require Authorized Users and/or Individual Users to provide certain personal information about Customer, Authorized Users, Individual Users and/or Customer’s customers. Customer acknowledges and agrees that NexStack processes Customer Data in our capacity as data processor for the purposes described in these Terms, the Data Processing Addendum, and the Privacy Policy.
INDEMNITY
Customer agrees to defend NexStack, our affiliates, employees, agents, assigns, and licensors against any third party suits, actions, claims, or proceedings (“Claim”) (i) alleging that the Customer Data infringes or misappropriates a third party’s intellectual property, privacy or other rights; or (ii) resulting from Customer’s or its Authorized Users’ or Individual Users’ breach of or failure to comply with these Terms or its Authorized User’s or Individual Users’ breach of the User Terms of Service, and Customer agrees to indemnify and hold NexStack, our affiliates, employees, agents, assigns, and licensors harmless from all damages, liabilities, costs and expenses, including reasonable attorneys’ fees, incurred by or awarded against NexStack or our affiliates, employees, agents, assigns, and licensors that may result from any such third party Claim.
NexStack agrees to defend Customer from and against any Claim initiated by a third party alleging that Customer’s use of the Services in accordance with these Terms infringes any patents, copyrights or trade secret rights of which NexStack is aware, provided, however, that NexStack shall not be obligated to indemnify and defend Customer from and against any Claim to the extent arising from (i) any matter for which Customer is obligated to indemnify NexStack pursuant to the paragraph above; (ii) use of the Services with any other software or service not provided by NexStack, if, but for such combination, the use of the Services would not have been infringing; (iii) use of any Beta Products; and/or (iv) use of the Services under a Trial Subscription. In addition, Customer shall be obligated to notify NexStack promptly upon learning of any Claim subject to indemnity hereunder, and Customer must provide NexStack with sole control and authority over the defense and/or settlement of the Claim, subject to Customer’s provision of reasonable assistance at the request of NexStack and at NexStack’s expense. Should the Services become or, in NexStack’s reasonable opinion are likely to become, the subject of any Claim, NexStack may, at our option and expense, either: (a) procure for Customer the right to continue to use the Services as contemplated by these Terms, (b) replace or modify the Services to make its use in accordance with these Terms non-infringing, or (c) terminate Customer’s subscription and refund to Customer, in the same currency the fees were paid, any prepaid subscription fees covering the remainder of the subscription term after the effective date of termination (unless applicable laws require otherwise), and Customer shall be responsible for all the bank transaction fee.
This Section states our sole liability with respect to, and Customer’s exclusive remedy against us for any Claim against Customer.
LIMITED WARRANTY; EXCLUSION OF OTHER WARRANTIES
NexStack warrants that the Services will function in substantial accordance with our written specifications and applicable documentation. In the event of a breach of NexStack’s warranty of this Section 12, NexStack agrees to use commercially reasonable efforts to cause the Services to function in substantial accordance with their specifications and applicable documentation. If NexStack is unable to remedy any material breach of this warranty, Customer or NexStack shall have the right to terminate the affected Services and, upon such termination, NexStack will refund to Customer, in the same currency the fees were paid, a pro rata portion of any fees that were prepaid for the canceled Services based on the remaining unused portion of the term for the canceled Services (unless applicable laws require otherwise), and Customer shall be responsible for all the bank transaction fee. For any breach of the warranty above, Customer’s sole and exclusive remedy shall be as provided in this Section 12. THE FOREGOING WARRANTY SHALL NOT APPLY TO ANY SERVICES UNDER A FREE OR TRIAL SUBSCRIPTION OR THE BETA PRODUCTS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 12, THE SERVICES ARE PROVIDED “ AS IS ”, “ AS-AVAILABLE ”, WITH ALL FAULTS, AND NexStack AND NexStack’S LICENSORS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NexStack OR OUR REPRESENTATIVES SHOULD CREATE A WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 12, CUSTOMER’S USE OF THE PLATFORM AND SERVICES IS ENTIRELY AT CUSTOMER’S OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER.
LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT, THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY LAW:
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR FRAUD (INCLUSING FRAUDULENT MISREPRESENTATION), DEATH, PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER TO THE EXTENT PROHIBITED BY PUBLICABLE LAW.
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS ITS ESSENTIAL PURpose. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SELECT 13 AND THE ALLOCATION OF RISK HEREIN ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH NexStack WOULD NOT HAVE ENTERED INTO THESE TERMS.
TERM; TERMINATION
These Terms shall remain in effect until the termination by NexStack or Customer in accordance with these Terms or the termination of all Services, paid and free, subscribed by Customer, whichever is earlier.
Customers may terminate these Terms at any time upon a prior notice to NexStack by email at least thirty (30) days in advance. NexStack may terminate these Terms immediately at any time upon notice to Customer by email, if Customer has committed a material breach of these Terms which has not been remedied within thirty (30) days after notice by NexStack specifying the nature of the breach or which cannot be remedied, or if Customer commits multiple breaches of these Terms (including without limitation two or more different breaches, or two or more occurrences of the same breach).
Upon termination of these Terms, all subscriptions granted to Customer hereunder shall terminate and Customer and its Authorized Users and Individual Users shall cease all use of the Services. Except as otherwise set forth in these Terms or otherwise required by applicable law, in the event of termination of these Terms for any reason, all fees paid in advance are non-refundable and Customer will not be entitled to a pro rata refund of any portion of such fees.
Upon termination or expiration of these Terms, we have no obligation to maintain any Customer Data and may thereafter, without notice to Customer, delete all Customer Data in our systems or otherwise in our possession or under our control, except for any Customer Data which we are obligated to maintain in accordance with applicable laws and regulations.
CONFIDENTIALITY
Neither party shall (i) disclose to any unaffiliated third party any Confidential Information (provided NexStack may disclose any Customer Data which constitutes Confidential Information in accordance with our Privacy Policy); or (ii) use the Confidential Information for any purpose other than that indicated in these Terms without the disclosing party’s prior written approval. The receiving party agrees to notify the disclosing party promptly of any unauthorized disclosure of Confidential Information and to assist the receiving party in remedying any such unauthorized disclosure. The receiving party agrees that all persons having access to the Confidential Information under these Terms will abide by the obligations set forth in these Terms. Nothing in these Terms shall be construed to restrict the parties from disclosing Confidential Information as required by law or court order or other governmental order or request, provided in each case the party requested to make such disclosure shall timely inform the other party and use all reasonable efforts to limit the disclosure and maintain the confidentiality of such Confidential Information to the extent possible. In addition, the party required to make such disclosure shall permit the other party to attempt to limit such disclosure by appropriate legal means. All Confidential Information disclosed hereunder shall remain the sole property of the disclosing party and the receiving party shall have no interest in or rights with respect thereto. As used herein, “Confidential Information” means all information that is either labeled confidential or that a reasonable person would understand to be confidential given the circumstances of disclosure and the nature of the information.
Confidential Information shall not include data or information which (i) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of the receiving party; (ii) was known to the receiving party at the time of disclosure without an obligation of confidentiality, as evidenced by the receiving party’s written records; (iii) is disclosed after written approval of the disclosing party; (iv) becomes known to the receiving party from a source other than the disclosing party without an obligation of confidentiality; or (v) is developed by the receiving party independently of the disclosing party’s Confidential Information as demonstrated by written records.
OTHER TERMS
CHANGES TO THESE TERMS
We may amend these Terms from time to time, for instance when we update the functionality of our Services or when there are regulatory changes. We will use commercially reasonable efforts to provide reasonable notice to all users of any material changes to these Terms, such as by email or by displaying a notice on our Platform. However, customers should look at these terms regularly to check for such changes. We will also update the “Last Updated” date at the top of these Terms, which reflects the effective date of such Terms.
Customer’s continued access to or use of the Services after the date of the new Terms constitutes Customer’s acceptance of the new Terms. If Customer does not agree to the new Terms, Customer and its Authorized Users and Individual Users must stop accessing or using the Services.
NexStack CONTRACTING ENTITY, PUBLICABLE LAW AND ARBITRATION
All references “NexStack”, “we” “us” or “our” to under these Terms, the Governing Law and Dispute Resolution rules to be applied in any dispute or lawsuit arising out of or in connection with these Terms (or its subject matter or formation (including non-contractual disputes or claims)) shall depend on where Customer is domiciled.
DISPUTE RESOLUTION Rule #1
Informal Process First. You agree that in the event of any dispute between You and NexStack, You will first contact NexStack and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation to any court action.
Arbitration Agreement. After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Dispute”) relating in any way to Your use of NexStack services and/or products, including the Services, or relating in any way to the communications between You and NexStack or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and NexStack. However, this arbitration agreement does not govern any dispute by NexStack for infringement of our intellectual property or access to the services that is unauthorized or exceeds authorization granted in these Terms.
DISPUTE RESOLUTION Rule #2
Any dispute arising out of or in connection with these Terms, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which SIAC Rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one arbitrator. The language of arbitration shall be English.
ANTI-BRIBERY AND CORRUPTION AND TRADE COMPLIANCE
ANTI-BRIBERY AND CORRUPTION
The parties warrant and represent that they and their affiliates will not, nor will any of their respective officers, employees, shareholders, representatives, agents or contractors (“ Associated Parties ”) commit, authorize or permit any action in connection with the negotiation, conclusion or the performance of these Terms or any related agreement which would cause the other party and/or its Associated Parties to be in violation of any anti-bribery laws. This obligation applies, inter alia, to illegitimate payments including facilitation payments to public officials or their associates, families or close friends.
TRADE COMPLIANCE
In the event, either party is unable to perform its remaining obligations under the terms of these Terms because of acts of God, strikes, economic sanctions and export control, or other causes reasonably beyond its control, that in no way complying with applicable laws and regulations is possible, such party may terminate these Terms without being liable for damages to the other for any damages resulting from such failure to perform remaining obligations under these Terms or otherwise from such causes. The parties shall use commercially reasonable efforts to reach a feasible solution that would minimize the impact from the force majeure event.
ENTIRE AGREEMENT
These Terms, together with any terms or document referenced or incorporated herein, constitute the whole legal agreement between Customer and NexStack and govern Customer’s use of the Services and supersede and extinguish any prior drafts, agreements, undertakings, representations, warranties, promises, assurances and arrangements of any nature whatsoever, whether or not in writing.
NO WAIVER AND SEVERABILITY
Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right in these Terms.
If any court of law or an arbitral tribunal, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from these Terms without affecting the rest of these Terms, and the remaining provisions of these Terms will continue to be valid and enforceable.
SECURITY
We do not guarantee that our Platform and/or Services will be secure or free from bugs or viruses. The customer is responsible for configuring your information technology, computer programs and platform to access our Platform and/or Services.
NO ASSIGNMENT
Customer may not assign any of Your rights or delegate Your obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of us. We may assign these Terms in their entirety (including all terms and conditions incorporated herein by reference), without Customer’s consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.
LANGUAGE
These Terms are prepared in English and may be translated into multiple languages other than English. If there is any inconsistency between the English language text and any translation, to the maximum extent permitted under applicable law the English language text shall prevail, unless otherwise expressly stated in the applicable translation.
Any Questions? Get in touch at [email protected].
CUSTOMER SUPPLEMENTAL TERMS
U.S. Government CustomersUS State or Local Government Customers
If Customer is a state or local government, the Sections titled “Applicable Law”, “Arbitration,” and Customer’s indemnity of NexStack are hereby waived if Customer’s jurisdiction’s laws prohibit Customer from accepting such terms.
Healthcare Customers
Unless Customer has entered into a Business Associate Agreement or similar agreement with NexStack, Customer acknowledges that NexStack is not a “Business Associate” as defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”), and that the Services are not HIPAA compliant. Customer may not use, disclose, transmit or otherwise process any “Protected Health Information” as defined in HIPAA (“PHI”) through the Services. We are not liable for any PHI received from Customer.
Non-Practicing Entity
If Customer is a non-practicing entity, Customer agrees that it will not, directly or indirectly, assert any claim, or commence any actions, suits, or proceedings against NexStack or any of its affiliates, that allege that the Platform or Services infringe, misappropriate, or otherwise violate any patents or other intellectual property rights.
South Korean Customers
If a customer is in South Korea, the following terms shall prevail.
In the event of refunds, the refunded amount shall exclude any incidental costs such as payment fees. Further, in principle, we will request the providers of each payment method to suspend or cancel the charges and issue the refund using the same payment method used by Customer within three (3) business days from the date of our receiving Customer’s cancellation notice. However, if it is not possible to issue a refund using the same payment method, we may issue a refund using other appropriate methods, which we will notify in advance.
(i) Customer has materially or repeatedly breached these Terms; (ii) it is necessary to comply with a legal requirement or a court order, etc., (iii) we reasonably believe that there has been a conduct that causes harm or liability to Customers, third parties, NexStack or its affiliates, etc. or that it is necessary to protect the rights of the foregoing, or (iv) we have decided to no longer provide the Services in a specific area or if we reasonably believe that it is no longer commercially appropriate to provide the Services to Customer.
However, in the event that (i) individual notice is prohibited for legal reasons (e.g., it is in violation of laws, regulations or orders from regulatory authorities, it interferes with investigations conducted by regulatory authorities), or (ii) individual notice is reasonably deemed to possibly cause harm to customers, third parties, NexStack or its affiliates (e.g., it harms the security of our Services), we may not provide notice.