Nextivity Inc. (“Nextivity”)
End User License Agreement (“EULA”)
Version Date: 04/18/2024
BY ACCEPTING THIS EULA, EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING A QUOTE OR ORDERING EQUIPMENT OR SERVICES DIRECTLY WITH US OR THROUGH AN APPROVED NEXTIVITY DISTRIBUTOR, INTEGRATOR OR RESELLER (HOWEVER TITLED, REFERRED TO HEREIN AS AN “ORDER”), OR BY DOWNLOADING, INSTALLING AND/OR UTILIZING ANY OF THE SERVICES (DEFINED BELOW), YOU AGREE TO THE TERMS AND CONDITIONS OF THIS EULA. THIS EULA IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND NEXTIVITY AND SETS FORTH THE TERMS THAT GOVERN THE LICENSES PROVIDED TO YOU HEREUNDER. IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS EULA. ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THIS EULA WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS EULA. IF YOU DO NOT AGREE TO THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SERVICES.
This Nextivity End User License Agreement (“EULA”) is between Nextivity (or “we” or “us”) and the user (“User” or “You” or “Your”) of the Services, as defined below. This EULA applies to Your use of:
(1) the Nextivity equipment (“Equipment”);
(2) the Nextivity on-premises, installed software that initializes and enables the Equipment (“Installed Software”);
(3) the Nextivity cloud-based software that allows You to manage and configure Your Equipment (“Cloud Software”);
(4) the Nextivity application programming interfaces that retrieve configuration and performance data from Equipment (“API Service”);
(5) Nextivity’s mobile applications (“Apps”)
(6) the written and visual materials Nextivity may provide to aid You in Your use of the Equipment, Installed Software and Cloud Software (“Documentation”); and
(7) any training or support services performed, either remotely or in person, by Nextivity (“Support”).
The Installed Software, Cloud Software, API Service and Apps may be referred to collectively as the “Software.” The Software, Equipment, Documentation and Support may be referred to collectively as the “Services.” This EULA also incorporates any Equipment-specific terms that may apply to the Equipment You acquire (“Supplemental Terms”).
1.1 License and Right to Use. Nextivity grants You a non-exclusive, non-transferable, non-sublicensable, revocable (a) license to use the Installed Software; (b) right to use the Cloud Software, API Service and Apps; and (c) right to use the Documentation solely in connection with Your use of the Software and Equipment, each as acquired from Nextivity or an approved reseller or distributor of Nextivity (“Approved Provider”), solely for Your internal business purposes during the Usage Term (as defined in Section 1.6 below), subject to the terms of this EULA and the applicable Order (collectively, the “Usage Rights”). Nextivity reserves all rights, title, and interest in and to the Services, including all related intellectual property rights, subject to the limited rights expressly granted hereunder. For the avoidance of doubt, “You” under this Agreement includes Approved Providers to their extent of use of the Services.
1.2 Use by Third Parties. You may not (a) permit any third party to access the Services, or (b) otherwise sell, rent, license, provide, or distribute the Services; provided, however, that You may authorize a contractor to assist you with the implementation of the Services (“Third Party Contractor”), if such Third Party Contractor has entered into a written agreement with You to: (i) access and use the Services solely to perform services for You; (ii) treat the Services with confidentiality and not disclose or distribute the Services to any third party including any affiliates of the Third Party Contractor; and (iii) limit access to the Services only to employees or agents with a “need to know” in order to perform the Third Party Contractor’s agreed upon services for You. You are responsible for any breach of this EULA by such third parties.
1.3 Beta and Trial Use. If Nextivity grants You Usage Rights in the Services on a trial, evaluation, alpha or beta basis (“Evaluation Services”), You may only use the Evaluation Services on a temporary basis for the period limited by a license key or as specified by Nextivity in writing. If there is no period identified, such use is limited to 30 days after the Evaluation Services are made available to You. You are responsible for all of Your own costs and expenses associated with the use and maintenance of the Evaluation Services and the performance of all testing and evaluation activities. If You fail to stop using the Evaluation Services and/or return the Equipment on which it is authorized for use by the end of the trial period, You may be invoiced for its list price, and You agree to pay such invoice within 10 days of the invoice date, and late amounts shall accrue 1.5% interest per month or the highest amount permitted by law, whichever is less. Nextivity, in its sole discretion, may stop providing the Evaluation Services at any time, at which point You will no longer have access to any related data, information, and files. The Evaluation Services may not have been tested through normal quality assurance processes and may contain bugs, errors, or other issues. You agree not to put Evaluation Services into production use. Notwithstanding anything to the contrary herein: (i) Nextivity shall have no obligation under this EULA or otherwise to provide any maintenance or Support with respect to the Evaluation Services; (ii) Nextivity provides Evaluation Services “AS-IS” without support or any express or implied warranty of any kind; and (iii) Nextivity will have no obligations to indemnify or otherwise defend You and have no liability relating to Your use of the Evaluation Services whatsoever.
1.4 Upgrades or Additional Copies of Software. Updates, upgrades, patches, and modifications may be necessary in order for You to be able to continue to use the Software on certain hardware, and You are responsible for their timely installation upon notice from Nextivity of their availability.
1.5 Interoperability of Software. If required by law and upon Your request, Nextivity may provide You with the information needed to achieve interoperability between the Software and another independently created program. Such information, if provided, will be subject to any terms reasonably required by Nextivity, and you will treat all such information as confidential.
1.6 Subscription Term and Renewal. The Usage Term shall be the period commencing on the date of your acceptance of the terms of this EULA and continuing until expiration or termination of your trial period or subscription period (including any renewals), during which period You have the right to use the Services (the “Usage Term”). Any Usage Rights in Software other than in connection with Evaluation Services will be on a subscription basis and will renew for any renewal period indicated on the applicable Order unless otherwise agreed. All other Usage Terms will automatically renew annually unless either party notifies the other party in writing at least 30 days before the end of Your then current Usage Term of its intent not to renew.
2.1 Use Restrictions. You shall not, and shall not permit or encourage any third party to: (a) alter, modify, adapt, translate, reverse engineer, disassemble, decompile, or attempt to derive the source code of the Software or any part thereof, except to the extent that such activities are permitted under applicable law; (b) sell, lease, rent, sublicense, redistribute or otherwise transfer or convey the Services to any third party; (c) use the Services for any time-sharing, outsourcing, service bureau, hosting, application service provider or like purposes; (d) use the Services as part of any effort to compete with us; (e) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Nextivity or its suppliers contained on or within any copies of the Software or Documentation; (f) use the Services other than as described in the applicable Documentation, or with any unsupported software or hardware (as described in the applicable Documentation); (g) use the Installed Software on second-hand or refurbished equipment not authorized by Nextivity, or use the Installed Software that is licensed for a specific device on a different device; (h) disclose the results of any benchmark tests on the Services without Nextivity’s prior written consent; (i) interfere with other customers’ access to, or use of, any Services, or with its security; (j) facilitate the attack or disruption of the Cloud Software, API Service or Apps, including a denial of service attack, unauthorized access, penetration testing, crawling, or distribution of malware (including viruses, trojan horses, worms, time bombs, spyware, adware, and cancelbots); (k) cause an unusual spike or increase in Your use of the Cloud Software, API Service or Apps that negatively impacts the use or operation of any Services; (l) submit any information in the Cloud Software, API Service or Apps that is not contemplated in the Documentation; or (m) use the Services for any unlawful purpose or in violation of applicable law. Any violation of any of the foregoing restrictions shall be a material breach of this Agreement.
2.2 Evolving Nextivity Technology. Nextivity may: (a) enhance or refine the Software at any time in its sole discretion, although in doing so, Nextivity will not materially reduce the core functionality of the Software, except as contemplated in this Section; and (b) perform scheduled maintenance of the infrastructure and software used to provide the Cloud Software, API Service and Apps, during which time You may experience some disruption to the Cloud Software, API Service or Apps. Whenever reasonably practicable, Nextivity will provide You with advance notice of such scheduled maintenance. You acknowledge that, from time to time, Nextivity may need to perform emergency maintenance without providing You advance notice, during which time Nextivity may temporarily suspend Your access to, and use of, the Cloud Software, API Service or Apps. Nextivity may end the life of the Software, including component functionality, for any reason and at any time and will provide written notice on www.nextivityinc.com and will either credit You a prorated amount of any prepaid subscription fees (as applicable) or use commercially reasonable efforts to provide substantially similar Software. Any partial credit will be calculated from the last date the applicable Software is available through to the last date of the applicable Usage Term. Such partial credit can be applied towards the future purchase of Nextivity products.
2.3 Protecting Account Access. You agree to: (a) keep all account information up to date, (b) protect and secure Your account information, passwords, and other login credentials, (c) not share Your account information, passwords, and other login credentials with any third party, and (d) promptly notify Nextivity of any known or suspected unauthorized use of or access to Your account.
2.4 Use with Third-Party Products. If You use the Services together with third-party products, such use is at Your sole risk. You are responsible for complying with any third-party provider terms, including their privacy policies. Nextivity does not provide Support or guarantee ongoing integration Support for products that are not a native part of the Services.
2.5 Open Source Software. Open source software not owned by Nextivity in the Installed Software is subject to separate license terms under the GPL software license terms and are available upon request through [email protected]. The applicable open source software licenses will not materially or adversely affect Your ability to exercise Usage Rights in the Installed Software. Open source components are excluded from any license fee charged by Nextivity (as applicable) for any of its Services.
2.6 Additional Terms for API Service. Subscriptions to API Service may be subject to a limited monthly entitlement on the number of requests that may be made, known as a Credit Allocation. Your Credit Allocation will be identified on the invoice for API Services. If a calendar month’s usage exceeds the allocated Credit Allocation, the API Service may be suspended for the remainder of the month, or You may purchase additional credits. If You are an Approved Provider making available API output via a portal to Your end user customers, You must co-brand Your portal with Nextivity and include the following in the user interface in a conspicuous manner: “Powered by Nextivity.”
At this time, Software offerings other than the API Service are provided free of charge. However, Nextivity reserves the right to charge fees for such Software in the future, in which case Nextivity will provide You advance notice of such fees, and You will have the right to terminate this EULA if You do not agree to the fees. The API Service is provided as an optional paid subscription available to Approved Providers. As a subscriber to a fee-based Service, You agree to pay the Service subscription fees and all other fees due for Services according to the prices and terms listed in the applicable Order. Except as expressly otherwise provided herein, to the extent permitted by law, all orders for the Services are non-cancellable, and the fees for the Services are non-refundable. If You use Software beyond Your approved Usage Term, then Nextivity or its Approved Provider may invoice You for such use, and You agree to pay, for such use beyond your approved limits within 10 days of the invoice date, and late amounts shall accrue 1.5% interest per month or the highest amount permitted by law, whichever is less.
4.1 Confidentiality. Each party (the “Recipient”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Nextivity includes non-public information regarding features, functionality and performance of the Services. Your Confidential Information includes non-public data provided by You to Nextivity to enable the provision of the Services (“Your Data”). Recipient will hold in confidence and use measures no less protective than those Recipient uses for its own Confidential Information, and in no event less that reasonable care, to avoid disclosure of any Confidential Information to any third party, outside of its employees, affiliates, and contractors who have a need to know (“Permitted Recipients”). Recipient: (a) must ensure that its Permitted Recipients are bound by written confidentiality obligations no less restrictive than the Recipient’s obligations under this EULA (or in the event of professional advisors, a professional duty of confidentiality), and (b) is liable for any breach of this Section by its Permitted Recipients. Such nondisclosure obligations will not apply to information that: (i) is previously known by Recipient without confidentiality requirements; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is developed independently by Recipient as may be demonstrated with reasonable written evidence. Recipient may disclose Confidential Information under this section if required due to a regulation, law, or court order, provided that Recipient will provide prior notice to the Disclosing Party to the extent legally permissible, and, at the Disclosing Party’s expense, agrees to reasonably cooperate with protective actions pursued by the Disclosing Party. Upon request by the Disclosing Party, the Recipient will return, delete, or destroy all Confidential Information of the Disclosing Party, at the option of the Disclosing Party, and certify the same to the Disclosing Party. The obligations of the parties with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the Usage Term and for five (5) years thereafter.
4.2 Data Use and Consent. You agree that Nextivity may collect and use technical data and related information that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Services. To the extent Your use of the Services requires it, You represent and warrant that You have provided notices to, and have obtained consents from, all third parties regarding the collection, processing, transfer, and storage of their data through Your use of the Services.
4.3 Processing of Personal Information. Nextivity will access, process, and use data in connection with Your use of the Software in accordance with applicable privacy and data protection
4.3.1 If Nextivity collects personal information directly from You as the data subject, Nextivity is the “controller” of that data, and the Nextivity Privacy Policy applies (“Controller Personal Data”). For clarity, “Your Data” as defined above does not include Controller Personal Data.
4.3.2 If Nextivity receives from an Approved Provider personal information of data subjects who are the end user customers of such Approved Provider, Nextivity processes such personal information (“Processor Personal Data”) as a “service provider” or “processor” under applicable law, and it does not receive or process any Processor Personal Data as consideration for any Services that Nextivity provides to the Approved Provider under this Agreement. Nextivity will not have, derive, or exercise any rights or benefits regarding Processor Personal Data processed on the Approved Provider’s behalf other than as required to perform the Services. Nextivity will not: (i) retain, use, sell, share or disclose Processor Personal Data for any purpose, including other commercial purposes, outside of the direct business relationship with the Approved Provider; or (ii) combine Processor Personal Data on an identifiable basis with other personal information that it receives from, or on behalf of, another person or entity, or collects from its own interaction with the individual. Nextivity will reasonably assist the Approved Provider in responding to individuals’ requests to exercise data access rights under applicable laws. For clarity, “Processor Personal Data” does not include personal information about You, or Your employees or representatives, in connection with Your business relationship with Nextivity or Your and their use of the Software and the devices that access the Software.
5.1 The Services. Nextivity alone (and its affiliates and licensors, where applicable) owns and retains all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, (c) any feedback, recommendations or other information provided by You or any other party relating to the Services (all of the foregoing, collectively, “Feedback”); and (d) all intellectual property rights related to any of the foregoing. To the extent that any Feedback is not deemed owned by Nextivity pursuant to the prior sentence, You hereby irrevocably assign and transfer all such Feedback and all intellectual property rights therein to Nextivity. The Nextivity name, the Nextivity logo, the marks of Nextivity and its licensors, and the product names associated with the Services are trademarks of Nextivity or third parties, and no right or license is granted to use them.
5.2 Your Data. You shall own all right, title and interest in and to Your Data. You hereby grant to Nextivity: (a) the right to utilize Your Data during the Usage Term for the purpose of performance of the Services, including those ancillary thereto, such as troubleshooting and Support; and (b) a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual and irrevocable license during the Usage Term and thereafter to use Your Data that has been anonymized and aggregated with anonymized data of other Nextivity customers (“Anonymous Data”) in order to improve and enhance the Services.
5.3 No Other Rights. Except as expressly set forth in this Section or as otherwise agreed in writing, nothing in this EULA transfers ownership in, or grants any license to, any intellectual property rights.
6.1 Intellectual Property Infringement Indemnification.
6.1.1 Claims. Nextivity will defend any third-party claim against You that Your valid use of the Software infringes a third party’s patent, copyright, or registered trademark (the “IP Claim”) and will indemnify You against the final judgment entered by a court of competent jurisdiction or any settlements arising out of an IP Claim, provided that You: (a) promptly notify Nextivity in writing of the IP Claim; (b) fully cooperate with Nextivity in the defense of the IP Claim; and (c) grant Nextivity the right to exclusively control the defense and settlement of the IP Claim, and any subsequent appeal. Nextivity will have no obligation to reimburse You for attorney fees and costs incurred prior to Nextivity’s receipt of notification of the IP Claim. You, at Your own expense, may retain Your own legal representation.
6.1.2 Remedies. If an IP Claim is made and prevents Your use of the Software, Nextivity will either procure for You the right to continue using the Software, replace or modify the Software with substantially similar or better functionality, or if Nextivity determines that neither of the foregoing alternatives is reasonably available, Nextivity may terminate Your Usage Rights upon written notice to You and will refund You (as applicable) a prorated portion of the fee You paid for the Software for the remainder any unexpired Usage Term.
6.1.3 Exclusions. Nextivity has no obligation with respect to any IP Claim based on: (a) compliance with any designs, specifications, or requirements You provide or a third party provides on Your behalf; (b) modification of any Software by You or a third party; (c) the amount or duration of use made of the Software, revenue You earned, or services You offered; (d) combination, operation, or use of Software with non-Nextivity products, software or business processes; (e) Your failure to update, modify or replace Software as required by Nextivity; or (f) any Evaluation Software.
6.1.4 Exclusive Remedy. This Section states Nextivity’s entire obligation and Your exclusive remedy regarding any IP Claims against You.
6.2 Use Indemnification. You hereby agree to defend, indemnify, and hold Nextivity, its affiliates, resellers, distributors, suppliers and licensors and its and their respective officers, directors, shareholders, members, employees and agents (collectively, the “Nextivity Parties”) harmless from and against any liability, loss, injury, damage, cost or expense (including reasonable attorneys’ fees) incurred by the Nextivity Parties arising out of or in connection with a third party claim arising from Your breach of this Agreement or Your use of the Services.
7.1 Performance. Nextivity warrants that, during the Usage Term, the Software will substantially comply with the Documentation.
7.2 Malicious Code. Nextivity will use commercially reasonable efforts to prevent the introduction into the Software by Nextivity of any malicious code.
7.3 Qualifications. Sections 7.1 and 7.2 do not apply if the Software or the Equipment on which it is authorized for use: (a) has been altered, except by Nextivity or its authorized representative; (b) has been subjected to abnormal physical conditions, accident or negligence, or installation or use inconsistent with this EULA; (c) is Evaluation Software; or (e) has not been provided by Nextivity or an Approved Provider. Upon Your prompt written notification during the warranty period to Nextivity of Nextivity’s breach of this Section 7, as Your sole and exclusive remedy (unless otherwise required by applicable law), Nextivity will, at its option, either (i) repair or replace the applicable Software or (ii) terminate this EULA and issue a refund of the fees paid for the non- conforming Software, if applicable. Upon such termination pursuant to the prior sentence, You must return or destroy all copies of the applicable Software.
7.4 WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEXTIVITY’S WARRANTIES EXPRESSLY STATED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. OTHER THAN AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2, THE SERVICES ARE PROVIDED “AS IS, AS AVAILABLE” AND NEXTIVITY AND ITS DISTRIBUTORS, RESELLERS, SUPPLIERS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, UNINTERRUPTED USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NEITHER NEXTIVITY NOR ITS DISTRIBUTORS, RESELLERS, SUPPLIERS OR LICENSORS WARRANT THAT THE SERVICES WILL BE FREE FROM ERRORS, WILL MEET YOUR PARTICULAR NEEDS, WILL BE FREE FROM BUGS, THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, OR THAT ANY ERRORS OR BUGS WILL BE CORRECTED. YOU ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION (AS APPLICABLE), USE AND RESULTS OBTAINED THEREFROM. WITHOUT LIMITING THE FOREGOING, NEXTIVITY, ITS DISTRIBUTORS, RESELLERS, SUPPLIERS AND LICENSORS SPECIFICALLY DISCLAIM ALL LIABILITY IN CONNECTION WITH USE OF THE SERVICES FOR, AND YOU AGREE NOT TO USE THE SERVICES FOR, ANY MEDICAL, LIFE-SAVING, AVIATION AND/OR NUCLEAR ACTIVITIES. THE FOREGOING PROVISIONS WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL OPEN-SOURCE COMPONENTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO THESE DISCLAIMERS MAY NOT APPLY TO YOU.
NEXTIVITY WILL HAVE NO LIABILITY FOR INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOSS OR CORRUPTION OF DATA OR INTERRUPTION OR LOSS OF BUSINESS, OR LOSS OF REVENUES, PROFITS, GOODWILL OR ANTICIPATED SALES OR SAVINGS. NEXTIVITY’S MAXIMUM AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS EULA IS LIMITED TO THE FEES RECEIVED BY NEXTIVITY FOR THE APPLICABLE SOFTWARE AND ATTRIBUTABLE TO THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY.
THIS LIMITATION OF LIABILITY APPLIES WHETHER THE CLAIMS ARE IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT, OR OTHERWISE, EVEN IF NEXTIVITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
NOTHING IN THIS EULA LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
9.1 Suspension. In the event of any breach or threatened breach of this Agreement by You, without limiting Nextivity’s other rights and remedies, Nextivity may immediately, with written notice (email is sufficient), suspend Your access to the Services.
9.2 Termination. If a party materially breaches this EULA and does not cure that breach within 30 days after receipt of written notice of the breach, the non-breaching party may terminate this EULA for cause. Nextivity may immediately suspend your Usage Rights and terminate this EULA if You breach Sections 1.2 (Use by Third Parties), 2.1 (Use Restrictions), 4 (Confidentiality) or 11.7 (Export). Upon termination of the EULA, You must stop using the Services and destroy any copies of the Installed Software and Confidential Information of Nextivity within Your control. If this EULA is terminated due to Nextivity’s material breach, Nextivity will refund You or Nextivity’s Approved Provider, as applicable, the prorated portion of fees You have prepaid for the Usage Rights during any warranty period or Usage Term. Upon Nextivity’s termination of this EULA for Your material breach, You agree to cease using the Services, and you will pay Nextivity or Nextivity’s designee any unpaid fees through to the end of the then-current Usage Term.
During the Usage Term and for a period of 12 months after its expiration or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the Services sufficient to verify compliance with this EULA. Upon request by Nextivity, You agree to provide such records for review by Nextivity or a third party auditor.
11.1 Survival. Sections 3, 4, 5, 6, 7.4, 8, 9, 10 and 11 survive termination or expiration of this EULA.
11.2 Third-Party Beneficiaries. Except for the Nextivity Parties, this EULA does not grant any right or cause of action to any third party.
11.3 Assignment and Subcontracting. You may not assign or novate this EULA in whole or in part without Nextivity’s express written consent. Nextivity may assign or novate this EULA in whole or in part in its sole discretion.
11.4 Nextivity Distributors and Resellers. If You purchase Services from an Approved Provider, the terms of this Agreement apply to Your use of the Services, and to the extent there are any inconsistent provisions in Your agreement with the Approved Provider and this Agreement, the provision more protective of Nextivity shall prevail.
11.5 Modifications to the EULA. Nextivity reserves the right, at its sole discretion, to change, modify, add or remove portions of this EULA, at any time, and such changes to the EULA apply to any rights acquired or renewed after the date of modification. Your continued use of the Services after any changes indicates your agreement with the terms of the revised EULA. If we make material changes to this EULA, we will notify you by email or by means of a notice on nextivityinc.com/legal. The date of the last update of the EULA is indicated at the top of this EULA. No change to this EULA shall be binding upon Nextivity unless specifically agreed to in a written amendment to this EULA signed by an authorized representative of Nextivity.
11.6 Compliance with Laws. Nextivity may restrict the availability of the Services in any location or modify or discontinue features to comply with applicable laws and regulations.
11.7 Export. The Services are subject to U.S. and local export control and sanctions laws. You acknowledge and agree to the applicability of and Your compliance with those laws, and You will not receive, use, transfer, export, or re-export any Services.
11.8 Governing Law and Venue. You agree that California law governs this EULA (notwithstanding any conflict of laws provision) and the state or federal courts located in San Diego County, California shall be the exclusive venue and jurisdiction related to any claim arising under this this EULA. In addition, the United Nations Convention on the International Sale of Goods shall not apply. Any dispute will be resolved solely through individual action and will not be brought as a class action or any other type of representative proceeding. You also waive your rights to a jury trial.
11.9 Notice. Any notice delivered by Nextivity to You under this EULA will be delivered via email, regular mail or postings through https://nextivityinc.com/products/shield-megafi-hpue/. Notices to Nextivity should be sent to the address under the Contact Us or similar section of www.nextivityinc.com with a copy to [email protected].
11.10 Force Majeure. Except for payment obligations, neither party will be responsible for failure to perform its obligations due to an event or circumstances beyond its reasonable control.
11.11 No Waiver. Failure by either party to enforce any right under this EULA will not be construed as a waiver of that or any other rights.
11.12 Severability. If any portion of this EULA is found to be illegal or not enforceable, such provision shall be reformed to the extent necessary to make it enforceable, and the remaining provisions of this EULA shall continue to be valid and enforceable to the fullest extent permitted by law.
11.13 Equitable Relief. You hereby agree that Nextivity would be irreparably damaged if the terms of this EULA were not specifically enforced, and therefore You agree that Nextivity shall be entitled, without bond, other security, or proof of damages, to equitable remedies with respect to breaches of this EULA, in addition to such other remedies as Nextivity may otherwise have available to it under applicable laws.
11.14 Independent Parties. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between You and Nextivity as a result of this EULA or use of the Services.
11.15 Entire agreement. This EULA, including any Supplemental Terms, is the complete agreement between the parties with respect to the subject matter of this EULA and supersedes all prior or contemporaneous communications, understandings, or agreements (whether written or oral).