Terms of Service

1.      DEFINITIONS.

1.1          “Acceptance Form” means the form evidencing Customer’s initial subscription for access to and use of the Service, whether submitted online and digitally signed by Customer or in written form and manually signed by Customer and executed by NN6.  The Acceptance Form signifies Customer’s acceptance of and agreement to (1) these Terms of Service, (2) all other terms stated in the Acceptance Form, and (3) any materials available on the NN6 website specifically incorporated by reference in the Terms of Service, as such may be updated by NN6 from time to time in its sole discretion.

1.2          “Administrator User” means each User designated by Customer who is authorized to order the Service by executing the Acceptance Form and to otherwise administer Customer’s use of the Service.

1.3          “Agreement” means the Acceptance Form, together with the Terms of Service, and any materials available on the NN6 website specifically incorporated by reference in the Terms of Service, as such may be updated by NN6 from time to time in its sole discretion, and any Statement(s) of Work which may be mutually agreed to by the parties.

1.4          “Confidential Information” means any information, reasonably considered proprietary, sensitive or private, which is disclosed to the Receiving Party and/or its employees, or made available to Receiving Party and/or its employees through access to or inspection of software, facilities, and/or information, including, but not limited to (i) trade secrets, designs, products, descriptions, parts descriptions, test data, other data, reports, recommendations, plans, proposals, financial information, customer or client lists and information, pricing and payment information, methods, programming, performance specifications, and other documents of every description disclosed to and made available to Receiving Party by the Supplying Party; (ii) NN6 Technology; and (iii) Customer Data.

                As used herein “Receiving Party” means the party who receives Confidential Information pursuant to this Agreement, including such party’s parent, subsidiary and/or affiliated companies and “Supplying Party” means the party making Confidential Information available pursuant to this Agreement.

1.5          “Customer Data” means all data, information or material provided by Customer to NN6 in connection with Customer’s use of the Service.

1.6          “Customer Personal Data” means any and all personal data and information contained within the Customer Data concerning Customer and/or Customer’s Users, employees, contractors or customers.

1.7          “Effective Date” means the effective date of the Agreement as indicated on the Acceptance Form.

1.8          “Host” means the computer equipment from which the Service is provided, which is owned and operated by NN6 and/or its subcontractors.

1.9          “Initial Subscription Term” means the initial Subscription Term of the Agreement beginning on the date of Customer’s availability of the Service for Customer's use (the “GoLive Date”), and ending on the 36-month anniversary of the GoLive Date. 

1.10        “NN6 Content” means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of using the Service.

1.11        “NN6 Software” means the object code version of any software to which Customer is provided access as part of the Service, including any updates and/or new versions.

1.12        “NN6 Technology” means all of NN6’s proprietary technology (including NN6 Software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by NN6 in providing the Service.

1.13        “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

1.14        “Other Services” means all technical and non-technical services performed or delivered by NN6 under this Agreement, including, without limitation, implementation services and other professional services, training and education services, but excluding the Service.  Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in a separate Statement of Work and mutually agreed to by the parties. 

1.15        “Renewal Subscription Term” means each successive 12-month renewal of the Agreement after the Initial Subscription Term.

1.16        “Service” means NN6’s software service which provides use of the NN6 Software, NN6 Technology and NN6 Content, and which is made available to Customer over a network during the Subscription Term.

1.17        “Statement of Work” means a separate document mutually agreed to by the parties identifying any Other Services to be performed by NN6, and setting out any additional terms regarding the performance of and payment for such Other Services.

1.18        “Subscription Term” means the period(s) during which Customer and its Users are provided access and use of the Service pursuant to the Agreement.

1.19        “Terms of Service” means these terms of service.

1.20        “User(s)’’ means each of Customer’s principles, owners, employees and/or contractors authorized by Customer to access and use the Service and who has been provided a User identification and a password to access the Service. 

2.      USE OF THE SERVICES AND RESTRICTIONS.

2.1          During the Subscription Term, Customer and Customer’s Users are hereby granted a nonexclusive, non-assignable, worldwide right to access and use the Service solely for Customer’s internal business operations subject to the terms of the Agreement and the applicable documentation. All rights not expressly granted to Customer are reserved by NN6.

2.2          Customer acknowledges that the Agreement is a services agreement and NN6 will not be delivering copies of the NN6 Software to Customer as part of the Service. Subject to the limited license granted herein, NN6 shall own all right, title and interest in and to the Service, the NN6 Content, the NN6 Software, the NN6 Technology, and any suggestions, ideas, enhancement requests, feedback, bug fixes, recommendations or other information provided by Customer or any other party relating to the Service, including all modifications, improvements, upgrades, derivative works thereof and thereto, and all Intellectual Property Rights therein and thereto are the sole property of NN6 and Customer hereby automatically assigns all right, title and interest in the foregoing to NN6. The Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the NN6 Content, the NN6 Software, the NN6 Technology, or the Intellectual Property Rights owned by NN6. The NN6 name, the NN6 logos, and the product names associated with the Service are trademarks of NN6, and no right or license is granted to use them.

2.3          Customer shall not, and shall not permit anyone to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, the NN6 Content, the NN6 Software or the NN6 Technology, in any way; (ii) modify or make derivative works based upon the Service, the NN6 Content, the NN6 Software or the NN6 Technology; OR (iii) create Internet “links” to the Service or “frame” or “mirror” any NN6 Content, NN6 Software or NN6 Technology on any other server or wireless or Internet-based device.

2.4          In no event shall Customer disassemble, decompile, or reverse engineer the NN6 Software or Confidential Information (as defined herein) or permit others to do so.  Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the NN6 Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the NN6 Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the NN6 Software’s operation and creating the original source code or any approximation thereof by, for example, studying the NN6 Software’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the NN6 Software that could be construed to be reverse engineering, disassembling, or decompiling.  To the extent any such activity may be permitted pursuant to written agreement, the results thereof shall be deemed Confidential Information subject to the requirements of this Agreement. Customer may use NN6 Confidential Information solely in connection with the NN6 Software and pursuant to the terms of this Agreement.

2.5          Customer agrees that (i) any and all use of the Service by Customer and Users shall be in accordance with the Agreement; (ii) Customer is responsible for ensuring any and all use of the Service by Customer and Users complies with the terms of the Agreement; (iii) any use of the Service by Customer and Users which is not in compliance with the Agreement shall be a material breach of the Agreement; (iv) in the event NN6 learns that a User has used the Service in a manner that is not in compliance with the Agreement, NN6 may, with notice to Customer, prohibit such User from accessing the Service; (v) Customer will not perform any security testing of the Service or NN6 Software, including but not limited to penetration testing, vulnerability assessments, and other forms of testing aimed at identifying or exploiting Service or NN6 Software vulnerabilities ("Penetration Testing") without the prior written consent of NN6.

2.6          Customer and Users may not access the Service if Customer is a competitor of NN6, and Customer and Users may not access the Service for any purposes in competition with NN6.

2.7          Customer agrees that individual User accounts cannot be shared or used by more than one individual User.

2.8          Customer and Users may use the Service only for Customer’s internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service.

3.      ADDITIONAL NN6 RESPONSIBILITIES.

3.1          NN6’s use of Customer Data is subject to the license granted by Customer to NN6, and shall be limited to NN6’s performance of this Agreement, the provision of the Service to Customer, and as otherwise provided herein. NN6 may not disclose Customer Data to any third party except NN6's subcontractors, without Customer’s prior written consent, unless such disclosure is legally required pursuant to applicable law, rule, regulation, government authority, duly authorized subpoena, or court order. In the event NN6 receives a subpoena or otherwise becomes aware of events that may legally require it to disclose Customer Data, unless restricted by applicable law it will promptly notify Customer and cooperate with Customer (at Customer’s expense) to seek an order quashing or otherwise modifying the scope of such subpoena or legal requirement, in an effort to prevent the disclosure of Customer Data.

3.2          All Customer Data will be stored on the Host during the Subscription Term, for up to ten (10) years provided this Agreement is not earlier terminated, and up to 10GB of storage space. Customer is subject to additional charges in the event Customer’s Data stored on the Host exceeds 10GB of storage space.

3.3          Other Services, including training of new Customer personnel and Customer training which may be necessitated by changes to Service functionality, will be provided on a time and material basis at such times or during such periods as may be specified in a separate Statement of Work and mutually agreed to by the parties. All Other Services will be provided on a non-work for hire basis.

4.      ADDITIONAL CUSTOMER RESPONSIBILITIES.

4.1          Customer is solely responsible for all activity occurring under Customer’s account and individual User accounts, and Customer shall comply with all applicable local, state, national and foreign laws, treaties and regulations in connection with the use of the Service, including those laws related to data privacy, international communications and the transmission of technical or personal data. Customer acknowledges that NN6 exercises no control over the content of the information transmitted by Customer or Users through the Service. Customer and Users shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

4.2          Customer shall: (i) notify NN6 immediately of any unauthorized use of any User account or password or any other suspected breach of security known or suspected by Customer or any User, and (ii) notify NN6 immediately and to stop any unauthorized use of the Service or copying of the NN6 Content, the NN6 Software or the NN6 Technology known or suspected by Customer or any User.

4.3          Customer shall be solely responsible for the acts and omissions of its Users. NN6 shall not be liable for any loss of data or functionality caused directly or indirectly by Users.

4.4          All Customer Data will be stored on the Host and accessible by Customer for export via CSV. Customer is solely responsible for backup, collecting, inputting and updating all Customer Data stored on the Host, and Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. NN6 shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.

4.5          Subject to the terms and conditions of the Agreement, Customer grants to NN6 a limited, non-exclusive, royalty-free, and non-transferable license, to copy, store, configure, perform, display and transmit Customer Data as necessary to provide the Service to Customer.

4.6          During use of the Service, Customer and Users may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between Customer and the applicable third-party. NN6 shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and Users and any such third-party. NN6 does not endorse any sites on the Internet that are linked through the Service. NN6 provides these links to Customer and Users only as a matter of convenience, and in no event shall NN6 be responsible for any content, products, or other materials on or available from such sites. Customer recognizes, however, that certain third-party providers of ancillary software, hardware or services may require Customer’s agreement to additional or different license or other terms prior to use of or access to such software, hardware or services.

 

5.      PAYMENT AND SUSPENSION OF SERVICE. 

5.1          Customer shall pay all fees or charges to Customer’s account in accordance with the Customer Specific Terms indicated on the Acceptance Form and/or any Statement of Work. 

5.2          All payment obligations are noncancelable and all amounts owed and paid are nonrefundable.  Customer is responsible for paying for the Service for the entire Subscription Term, whether or not the Service is actively used. All fees and charges are stated in United States Dollars, and must be paid by Customer to NN6 in United States Dollars. Except as otherwise provided on an Acceptance Form or Statement of Work, NN6 reserves the right to modify its fees and charges and to introduce new charges for any Renewal Term upon at least thirty (30) days notice to Customer prior to the commencement of such Renewal Term. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.

5.3          NN6’s fees and charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on NN6’s income.

5.4          Customer agrees to provide NN6 with complete and accurate billing and contact information.  This information includes Customer’s legal name, street address, e-mail address, and name of an authorized billing contact. Customer agrees to update this information within 30 days of any change to it. If the contact information Customer provides is false or fraudulent, NN6 reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.

5.5          All payments not received by NN6 by the due date shall accrue interest at the rate of one and one half percent (1 ½%) per month or the maximum rate of interest allowed by law, plus all expenses of collection. 

5.6          NN6 reserves the right to suspend delivery of the Service to Customer if Customer’s account becomes delinquent (falls into arrears). NN6 shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Service in accordance with this Section. Further, nothing in this Section will limit NN6’s right to terminate the Agreement for Customer’s material breach.  Customer will continue to be charged for the Service during any period of suspension. After a suspension of the Service under this Section, and upon Customer’s payment of all delinquent fees and charges payable to NN6, NN6 shall recommence delivery of the Service to Customer.

5.7          NN6 reserves the right to suspend delivery of the Service to Customer if NN6 reasonably concludes that the use of the Service by Customer or a User is causing immediate and ongoing harm to NN6 or others. In the extraordinary case that NN6 must suspend delivery of the Service, NN6 shall promptly notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. NN6 shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Service in accordance with this Section.  Further, nothing in this Section will limit NN6’s right to terminate the Agreement for Customer’s material breach. Customer will continue to be charged for the Service during any period of suspension.

6.      TERM AND TERMINATION.

6.1          The Agreement commences on the Effective Date; however the Initial Subscription Term shall commence on the GoLive Date, and shall continue for the Initial Subscription Term unless earlier terminated. In the event the Agreement has not been earlier terminated, upon expiration of the Initial Subscription Term, the Agreement shall automatically renew for successive Renewal Subscription Term at NN6’s then-current fees and charges for the Service in the applicable Renewal Subscription Term. Except as otherwise provided in the Agreement, either party may terminate the Agreement, effective only upon the expiration of the then-current Subscription Term (either the Initial Subscription Term or a Renewal Subscription Term), by notifying the other party in writing at least thirty (30) days prior to the expiration of the then-current Subscription Term (either the Initial Subscription Term or a Renewal Subscription Term). In the event of a termination pursuant to this Section, Customer Data shall remain available on the Host for export via CSV to Customer’s computer systems and electronic storage media for a period of thirty (30) days after the effective date of such termination. Customer agrees and acknowledges that NN6 has no obligation to retain Customer Data on the Host beyond thirty (30) days from the effective date of termination, and may delete all Customer Data on or after the thirty-first (31st) day from the effective date of termination or immediately upon termination for Customer's breach.

6.2          Either party may terminate the Agreement immediately (i) upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach or (ii) if the other party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern. In the event of a termination pursuant to this Section, Customer Data shall remain available on the Host for export via CSV to Customer’s computer systems and electronic storage media for a period of thirty (30) days after the effective date of such termination. Customer agrees and acknowledges that NN6 has no obligation to retain Customer Data on the Host beyond thirty (30) days from the effective date of termination, and may delete all Customer Data on or after the thirty-first (31st) day from the effective date of termination.

6.3          Effect of Termination.

(a)           Upon termination of the Agreement, NN6 shall immediately cease providing the Service and all rights granted to Customer under the Agreement shall terminate.

(b)           If NN6 terminates the Agreement due to a breach by Customer, then Customer shall immediately pay to NN6 all amounts then due under the Agreement and that would become due during the remaining Subscription Term, but for such termination. If Customer terminates the Agreement due to a breach by NN6, then NN6 shall promptly repay to Customer all pre-paid amounts for the Service to be delivered after the termination date.

7.      WARRANTIES.

7.1          Customer and NN6 each represent and warrant that they have the legal power and authority to enter into the Agreement. NN6 represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. Customer represents and warrants that (i) Customer has not provided any false information to gain access to the Service and that Customer’s billing information is correct and (ii) Customer has the right to provide the Customer Data for the purposes of this Agreement.

7.2          NN6 MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY NN6 CONTENT. NN6 DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL NN6 CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY NN6 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8.      LIMITATION OF LIABILITY.

8.1          EXCLUDING INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT AND BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT OR THE SERVICE, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. NN6'S AGGREGATE LIABILITY FOR DAMAGES UNDER THE AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE AGREEMENT DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

8.2          For further clarification, Customer is responsible for, and assumes the risk of, all credit decisions, financing, fraud analysis, collateral, decisions based on recommendations of NN6, administration and customer service with respect to the Services and Customer releases NN6 from all claims related to the foregoing.  Customer assumes, and NN6 will have no liability based on, Customer's relationship with its clients.

9.      INDEMNIFICATION. Customer agrees to indemnify, defend, and hold harmless NN6, LLC, its affiliates, officers, members, employees, and agents ("Indemnified Parties") from and against any and all claims, demands, suits, actions, proceedings, losses, damages, costs, fees (including reasonable attorneys' fees), and expenses arising out of or related to (i) any allegation or claim that the Customer Data infringes or misappropriates any third-party intellectual property rights, including but not limited to patents, copyrights, trademarks, service marks, trade secrets, or other proprietary rights and (ii) credit decisions, financing, fraud analysis, collateral, decisions based on recommendations of NN6, the NN6 Software or Service.

10.     PROPRIETARY AND CONFIDENTIAL INFORMATION.

10.1        The parties acknowledge that, prior to the date hereof and in connection with this Agreement, they have received or may receive Confidential Information from each other. Each Receiving Party agrees that it will, in perpetuity:

10.1.1     use the Confidential Information of the other only as permitted or required under this Agreement;

10.1.2     continue to keep confidential all Confidential Information;

10.1.3     unless otherwise agreed to in writing by the Supplying Party, not directly or indirectly cause or permit the Confidential Information of the Supplying Party to become known to any third parties, nor disclose Confidential Information of the Supplying Party to any other person, corporation or other business entity except as provided elsewhere in this Agreement;

10.1.4     disclose Confidential Information only to the extent required by law, provided notice is given to the Supplying Party of such requirement as soon as practicable and reasonable assistance is rendered to the Supplying Party, if requested, to prevent such disclosure;

10.1.5     not directly or indirectly copy, distribute, or modify the Confidential Information (except as permitted hereunder) without the prior written consent of the Supplying Party;

10.1.6     exercise the same degree of care to safeguard the confidentiality of the Confidential Information as it would exercise in protecting the confidentiality of similar property of its own, but in no event less than reasonable care; and

10.1.7     use its commercially reasonable efforts to prevent inadvertent or unauthorized disclosure of any Confidential Information.

10.2        If it appears that Receiving Party has disclosed, or has threatened to disclose, Confidential Information of Supplying Party in violation of this Agreement, Supplying Party shall be entitled to seek a temporary and/or permanent injunction against Receiving Party, without posting bond or other security, to restrain such party from disclosing such Confidential Information. In addition to such injunctive relief, Supplying Party shall be entitled to pursue any and all additional remedies, including a claim for monetary damages, and/or other equitable relief.

10.3        As between the parties, NN6 owns and shall continue to own all right, title and interest in and to all aggregate and statistical information or analyses created and developed by NN6 from performance and usage data generated through Customer’s use of the NN6 Software (collectively, “Aggregate Data”). In addition, NN6may de-identify Customer data ("De-identified Data"). NN6may use Aggregate Data and De-identified Data with the data of other NN6's customers and analyze Aggregate Data , De-identified Data and user behavior data including use of aggregate data to (i) help develop new features of the NN6 Software; (ii) recommend areas for examination or improvement; (iii) train algorithms and machine learning; (iv) improve conversational and generative artificial intelligence; (v) analyze, compare, and benchmark Aggregate Data and De-identified Data; and (vi) for any other legal purpose. To the extent that use of Customer Data gathered by NN6would require a license, Customer hereby automatically and forever grants such royalty-free license to NN6. Furthermore, NN6 may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service and other legal purposes, provided that such information does not identify Customer’s data or include Customer’s name.

10.4        Notwithstanding anything to the contrary in this Agreement, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the NN6 Software or other NN6 materials provided to Customer shall be owned by NN6, and Customer hereby agrees to assign any such rights to NN6.  Nothing in this Agreement shall preclude NN6 from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by NN6 in the performance of Services hereunder.

11.    GENERAL PROVISIONS.

11.1        Non-Exclusive Service. Customer acknowledges that Service is provided on a non-exclusive basis.  Nothing shall be deemed to prevent or restrict NN6’s ability to provide the Service or other technology, including any features or functionality first developed for Customer, to other parties.

11.2        Customer Personal Data. Customer acknowledges and agrees that NN6’s performance under the Agreement may require NN6 to process, transmit and/or store Customer Personal Data, and the parties agree that NN6 may process, transmit and/or store Customer Personal Data only to the extent necessary for, and for the sole purpose of, enabling NN6 to perform its obligations under the Agreement. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of Customer Data, including Customer Personal Data, and Customer shall be responsible as sole data controller for complying with all applicable data protection or similar laws. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Customer Personal Data in Customer Data. 

11.3        Assignment. Customer party may not assign the Agreement or any right under the Agreement, without the written consent of NN6. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under the Agreement, provided, however, that such party shall not be relieved of any obligation under the Agreement.

11.5        Notices. Except as otherwise permitted in the Agreement, notices under the Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the Acceptance Form(s).

11.6        Force Majeure. Excluding the payment of NN6’s invoices under the Agreement when due, each party will be excused from performance for any period during which, and to the extent that, such party is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures or delays by Customer in providing required resources or support or performing any other requirements hereunder.

11.7        Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of the Agreement shall not constitute a waiver of any other or subsequent breach.

11.8        Severability. If any term of the Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of the Agreement shall remain in full force.

11.9        Entire Agreement. The Agreement (including any Exhibits thereto) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of the Agreement. NN6 reserves the right to modify the Terms of Service, effective upon posting of an updated version of the Terms of Service on the NN6 website. Customer is responsible for regularly reviewing the Terms of Service posted on the NN6 website, and Customer’s continued use of the Service after any such changes to the Terms of Service shall constitute Customer’s consent to such changes.

11.10      Survival. Sections 2.2, 2.3, 4, 6.3, 7, 8, 9, 10 and 11 of the Agreement shall survive the expiration or termination of the Agreement for any reason.

11.11      Publicity. NN6 may include Customer’s name and logo in its customer lists and on its website. Upon signing, NN6 may issue a high-level press release announcing the relationship and the manner in which Customer will use the Service. NN6 shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.

11.12      Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Service. Customer agrees that such export control laws govern its use of the Service (including technical data) and any services deliverables provided under the Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from the Service (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.

11.13      No Third Party Beneficiaries. The Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners or customers or upon any other person or entity.

11.14      Independent Contractor. The parties have the status of independent contractors, and nothing in the Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in the Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.

11.15      Governing Law and Venue. This Agreement shall be governed and interpreted by the laws of the state of Texas without regard to the conflicts of law provisions of any state or jurisdiction.  Any action related to this agreement shall be brought in the state or federal courts located in Austin, Texas and each party hereby submits to the exclusive jurisdiction of such courts.

11.16      Compliance with Laws. The parties shall comply with all applicable local, state, national and foreign laws in connection with the delivery and use of the Service, including those laws related to data privacy, international communications, and the transmission of technical or personal data.

11.17      Dispute Resolution. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of the Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within fifteen (15) days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it. Nothing in this Section shall restrict a party from seeking injunctive relief to protect such party's confidential information or proprietary rights.

11.18      Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of NN6 without the prior written consent of NN6.  Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of NN6 for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with NN6.  Violation of this provision shall entitle NN6 to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.