Standard Terms and Conditions for Performance

The following terms and conditions (the “Standard Terms”) shall govern the insertion order or service agreement (as applicable) (“SA”) (collectively with these Standard Terms and/or Client's online management of any advertising campaigns, the “Agreement”) under which Nexxt, Inc. (“Nexxt”) will provide leads, clicks, or other specified actions (collectively known as “Leads”) to Client as described in an SA.  The Parties agree that any pricing or other campaign terms set forth in a Client online account shall be construed as part of an SA under these Standard Terms. If an agency executes the SA on behalf of its client, it hereby represents and warrants that it is the agent of the Client and is duly authorized to act on Client’s behalf in connection with the SA and these Standard Terms.

  1. Display of Client Information; Editorial Control. Subject to the provisions of this Agreement, Client hereby grants Nexxt a non-exclusive right and license to display its brand, logo, job, or other advertising information including ad placements and lead presentations (the “Content”), as applicable, during the Term. Nexxt may not modify Content other than to display an excerpt (rather than all) of the long description that does not change the language that is excerpted. Except as set forth within the SA, Nexxt will determine the daily frequency and location of Content through the use of Nexxt’s service by its members. Nexxt reserves the right to include new locations for existing campaigns. Nexxt reserves the right to reject, suspend, or cancel any advertisement which does not comply with Nexxt’s general policy concerning advertising content or technical specifications, as amended from time to time. Nexxt further reserves the right to reject, suspend or cancel any Content which may subject Nexxt to criminal or civil sanction or is otherwise, in the opinion of Nexxt, offensive or objectionable.
  1. Ownership, Licensing and Use of Leads. Each Party hereby agrees that it will treat the Leads, including but not limited to personally identifiable information provided by individual web users, as Confidential Information as set forth in the Confidentially Section below. Nexxt shall retain all right, title and interest in and to the Leads. Client shall be granted a limited, non-transferable license to use the Leads solely for the purpose described in the SA Campaign Notes. Client shall not use the Leads in any manner not expressly authorized by Nexxt.  Client shall not provide the Leads to any third party unless for the purposes intended by the SA, and only so long as the recipients of such disclosures are bound by a written agreement not to disclose the information in the Leads or use it in any manner other than in furtherance of this Agreement. Client agrees to notify Nexxt as soon as it learns of any actual or suspected unauthorized use of or access to the data in the Leads and provide reasonable assistance to Nexxt in the investigation and prosecution of any such unauthorized use or disclosure.
  1. Terms of Payment. Nexxt will earn a monthly performance payment from Client during the Term (the “Monthly Performance Payment”) under the terms listed in the SA. Client has five (5) business days from date of delivery to return rejected Leads to Nexxt. Leads can be rejected if Client finds the Leads to be false, duplicative or erroneous. If gross Lead counts are not confirmed, and/or rejected Leads are not returned within the five (5) business days, Leads delivered will be considered valid and billable based on Nexxt’s internal reporting numbers. The Monthly Performance Payment will be calculated in accordance with the type and rate indicated in the SA, as set in an online account, or as otherwise provided in writing or electronically by Client (for example, in a job feed file) in accordance with the SA terms, and is further described as follows:

    2. In the absence of payment terms in the SA, Nexxt will invoice Client at the end of each calendar month for the Monthly Performance Payment as reported by Nexxt. Client will pay Nexxt within 30 days of the end of the calendar month for which it has been invoiced. For example, Nexxt will send an invoice to Client dated August 31st, for all clicks delivered during the month of August and Client will pay Nexxt by September 30th for the August 31st invoice. Client waives all claims relating to charges (including, without limitation, any claims for charges based on suspected invalid clicks) not made within 60 days of receipt of invoice. Charges are solely based on Nexxt’s measurements for the applicable product and/or service, unless otherwise agreed to in writing. If an agency executes the SA, the agency hereby acknowledges and agrees that it is responsible for paying Nexxt under these Standard Terms, whether or not the agency has received payment from the Client.

    All prices are in U.S. dollars and Client will make all payments in U.S. dollars. Late payments for undisputed amounts due bear interest at the rate of 1 - 1/2% per month, or if less, the highest rate permitted under law. Client agrees to pay all legal fees resulting from any collection proceedings arising from non-payment of amounts due, including but not limited to, reasonable attorney fees. In the event of a late payment of amounts due, all outstanding balances will become immediately due and will be subject to late payment fees as described above, and Nexxt may suspend further performance without liability or penalty, in its sole discretion.

  1. Taxes. All payments required under this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and other similar charges (“Taxes”). When applicable, such Taxes shall appear as separate items on invoices. Payment of such Taxes and other charges (excluding any taxes based upon the billing/collecting party’s net income) shall be the paying party's sole responsibility. In the event the billing/collecting party is subsequently assessed by any governmental authority for having failed to collect any Taxes from the paying party, the paying party agrees to pay such assessed amounts, excluding any associated interest or penalties, upon the billing/collecting party's written request.
  1. Confidentiality; Nonsolicitation. Except as otherwise provided herein, Nexxt and Client each agree that all written information communicated to it by the other, whether before the Effective Date or during the term of this Agreement, and (a) marked as confidential or proprietary; or (b) regarding customers; human resources; financial costs, expenses or operations; inventory, purchasing or merchandising; or plans, strategies or forecasts (hereinafter collectively referred to as "Confidential Information") shall be used only for the purposes of this Agreement, and that no Confidential Information of the disclosing party shall be disclosed to outside parties by the recipient party, its agents or employees without the prior written consent of the disclosing party.

    2. Client agrees to keep completely and unconditionally confidential the names of any institutions, corporations, investors, organizations, individuals, or groups of individuals introduced by Nexxt or its associates. Client agrees not to divert or attempt to divert business, customers, or prospects of Nexxt or its subsidiaries (collectively, “Nexxt” for purposes of this section) based on information gained as a result of business or discussions with Nexxt. Without prior written consent from Nexxt, during the term of this Agreement and for a period of 12 months after the termination of this Agreement, Client or its representatives will not directly or indirectly solicit, offer to hire, or hire any officers or employees of Nexxt.

    Each Party agrees to take all reasonable precautions to prevent disclosure to outside parties of Confidential Information, including without limitation, the terms of this Agreement, except for information which is (i) not marked as confidential or proprietary or included in the categories identified above, (ii) already known by or available to the receiving party or its parent or subsidiaries at the time of disclosure; (iii) independently generated by either of the Parties hereto or its parent or subsidiaries and not derived from the Confidential Information of the disclosing party, (iv) generally known or available to the public, or which may later become generally known or available to the public except where such knowledge or availability is the result of an unauthorized disclosure by one of the Parties hereto, (v) disclosed to the receiving party or its parent or subsidiaries by a third party who is lawfully permitted to make such disclosure, (vi) made available by the disclosing party to a third party without a similar restriction; or (vii) required to be disclosed by either Party or their parent or subsidiaries by law, regulation, court order or other legal process.  This obligation of confidentiality shall cease two (2) years after the return of such Confidential Information to the disclosing party by the receiving party or two (2) years after the termination of this Agreement, whichever is later. The foregoing notwithstanding, Nexxt will have the right to identify that Client is a customer of Nexxt and may utilize traffic data for statistical and comparative purposes provided it is not disclosed in any manner which could reasonably identify Client.

  1. Term; Termination. The term of this Agreement shall be as set forth in the SA or until terminated upon the mutual written agreement of both Parties.  In addition, either Party may terminate this Agreement in the event that the other Party fails to perform any material covenant or otherwise breaches any material term of this Agreement: (i) immediately upon written notice to the other Party if the nonperformance or breach is incapable of cure, or (ii) upon the expiration of thirty (30) days after such notice if the nonperformance or breach is capable of cure and has not been cured.  Acceptance of any additional SAs shall be by written agreement of the Parties. Pricing for any renewal period is subject to change by Nexxt from time to time.
  1. Privacy. All Parties represent and warrant that they are fully compliant with applicable privacy laws, and all federal and state regulations.
  1. Audit. At its own expense but no more than once every twelve months, upon reasonable prior written notice and during dates and times mutually agreed upon by the Parties, either Party may have its independent auditors examine books and records with respect to all transactions for which Monthly Performance Payments may be due, for the sole and limited purpose of verifying the other Party’s accurate reporting.   
  1. Client Credit. Nexxt reserves the right to cancel the Agreement after conducting a credit screening of the Client.
  1. Representations. Nexxt will conduct its web advertising campaigns in accordance with industry standards.  Client represents and warrants that the Content as well as Client’s web site(s) and its advertisements shall not contain, or contain links to, illegal content or websites, or to improper content or websites such as pornographic or gambling oriented content or websites.  Client further represents and warrants that (i) the Content and its advertisements shall not contain any tracking cookies, tracking pixels, or other similar tracking technology, and (ii) it will not rent, license, sell, transfer, or otherwise share any personally identifiable information or other data about users that Client obtains in connection with this Agreement, and will only use such data for Client’s internal purposes.  
  1. Indemnification. Each Party, at its own expense, will indemnify, defend and hold harmless the other Party, its Affiliates and their employees, representatives and agents (the “Indemnified Parties”), against any third-party claim, suit, action, or other proceeding brought against the Indemnified Parties based upon, incident to, arising from, or in connection with the breach by the indemnifying party of any of its obligations hereunder.  Further, Client agrees to indemnify and hold Nexxt and Nexxt’s web site affiliates harmless against any and all expenses and losses of any kind (including reasonable attorney’s fees and costs) incurred by Nexxt or its web site affiliates in connection with any claim of any kind arising out of publication of the Content (including, without limitation, any claim of trademark or copyright infringement, libel defamation, breach of confidentiality, false or deceptive advertising or sales practices) and/or any material of Client to which users can link through the Content.
  1. DISCLAIMER; Limitation of Liability. EXCEPT AS OTHERWISE STATED HEREIN, NEXXT’S SERVICES AND LEADS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND NEXXT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, UNINTERRUPTED SERVICE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. To the fullest extent permitted by law, Nexxt disclaims all guarantees regarding positioning, quality, timing or levels of: (i) ad placement (ii) costs per click; (iii) click through rates; (iv) availability and delivery of any creative, impressions, or targets; (v) clicks; (vi) conversions or other results for any ads or targets; and (vii) data accuracy such as, but not limited to: audience size or characteristics, reach, or demographics. Client understands that third parties may generate impressions or clicks on Client's ads for prohibited or improper purposes, and Client accepts the risk of any such impressions and clicks. Client's exclusive remedy, and Nexxt's exclusive liability, for suspected invalid impressions or clicks is for Client to make a claim for a refund in the form of advertising credits within 60 days of the date of the subject charge. Any credits for suspected invalid clicks or impressions are in Nexxt's sole discretion. Nexxt disclaims all liability for the consequences of errors, lost messages or faulty transmission. Client shall protect any Client passwords and takes full responsibility for use of any Client accounts by itself or any third parties. Nexxt shall not be liable for any advertisers or content providers whose Content Nexxt promotes under an SA, nor for the Content itself nor the means by which such Content is promoted, including, without limitation, any advertisements, web sites, web pages, emails, texts, etc. In the event that Nexxt fails to promote any Content in accordance with an SA (or in the event of any other failure, technical or otherwise), the sole liability of Nexxt to Client shall be limited to "make-goods" during a reasonable time after. In no event shall either Party be responsible for any consequential, special, indirect, incidental, lost profits, or other indirect damages arising from the SA. Without limiting the foregoing, neither Party shall have any liability for any failure or delay resulting from conditions beyond its control. Except for (i) claims related to a Party’s breach of its obligations under Section 5, (ii) a Party’s obligations under Section 11, or (iii) circumstances under both (i) and (ii), neither Party’s liability (whether in contract, tort or otherwise) shall exceed the amount of revenue then due and payable to Nexxt under the SA or Five Hundred Dollars ($500), whichever is greater.

    2. The Parties acknowledge that Nexxt has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitation and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

  1. Remedies Cumulative. Except as otherwise expressly specified herein, the rights and remedies granted to each Party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies that such Party may possess at law or in equity.
  1. Notice. All notices, requests, consents, and other communications under this Agreement shall be in writing (which includes paper, fax or email communication), and shall be delivered by hand, sent by reputable overnight courier service or electronic facsimile transmission (with proof of transmission) or mailed by first class certified or registered mail, return receipt requested, postage prepaid, to the Parties at the respective contact point set forth in the SA. Notices provided in accordance with this Section shall be deemed delivered (i) immediately if personally delivered or sent by email or electronic facsimile transmission, or (ii) if sent by overnight courier service, 24 hours after deposit with such courier service, or (iii) if sent by certified or registered mail, return receipt requested, 48 hours after deposit in the mail.  Either Party may change the address to which notices, requests, demands, claims, or other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth.
  1. Distribution. In order to deliver estimated and agreed upon volume, Nexxt, at its own discretion and without obligation, may outsource any or all of the Content.
  1. Assignment. Client may not resell, assign or transfer any of its rights hereunder. Nexxt may assign this Agreement to an entity that acquires all or substantially all of Nexxt’s assets or business.  
  1. Independent Contractors; No Agency. The Parties are independent contractors and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the day‑to‑day activities of the other; (ii) create or constitute a partnership, joint venture, franchise, employment or agency relationship between the Parties; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.
  1. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, as if entered into and to be wholly performed in Pennsylvania and without regard to conflicts of law principles.  In any action brought hereunder, each Party hereby consents to the jurisdiction of the federal or state courts of the Commonwealth of Pennsylvania, and waives any jurisdictional, venue or inconvenient forum objections thereto.
  1. Miscellaneous. Any obligation of Nexxt hereunder to Client shall extend only to Client and not to any third party.  No conditions other than those set forth in the SA or these Standard Terms shall be binding on either Party unless expressly agreed to in writing, including, but not limited to any on-line end user license agreement or other on-line terms required to authorize access and/or start services under the SA. In the event of any inconsistency between the SA and the Standard Terms, unless expressly stated otherwise in the SA, the Standard Terms shall control. These Standard Terms, together with the SA, (i) constitute the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties, and (ii) may be amended only by written agreement of the Parties. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force.

Rev June 2022