1 TERM OF AGREEMENT:
This Agreement shall commence on the Effective Date and shall continue in effect for the Term defined in the Agreement for each product or service defined in the service agreement ("SA") or in an online account, which is the equivalent of an SA under these Terms and Conditions (the "Terms").
2 NEXXT APPLICATION PRODUCTS AND SERVICES:
2.1 All right, title and interest in and to the Nexxt products and services is and will remain with Nexxt and its licensors. Client shall have no rights or interests except as specifically described herein. The company subscribing to Nexxt’s products and services through an online account is a “Client” under these 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 Terms.
2.2 In consideration of Client’s performance of the obligations under this Agreement, Nexxt grants Client a limited, non-transferable, non-exclusive, revocable right for the term of this Agreement to use the Nexxt products and services purchased in the SA, so long as Client has met all payments and other obligations stated herein.
2.2.1 Client understands and agrees that the following terms apply to the FLEXPlan Trial product: Nexxt will allow Client to actively promote up to the number of job postings listed in the SA, plus up to an additional ten percent (10%), for ninety (90) days. The FLEXPlan Trial product rate includes one job wrap. The FLEXPlan Trial product is non-transferable, non-renewable, and non-refundable, and cannot be combined with any other job posting offer.
2.2.2 If Client is purchasing email marketing services, Client understands and agrees it is also subject to the Additional Terms and Conditions for Email Services (https://www.nexxt.com/Terms/EmailTerms.htm).
2.3 Nexxt reserves the right to remove or prohibit inappropriate, fraudulent or other content that it deems unsuitable, in its sole discretion.
2.4 Unless specifically agreed by the parties in writing, Client is prohibited from using job seeker contact information for any purpose other than to connect a job seeker with a specific, currently available job opportunity. This includes, but is not limited to: telephone, email, text messaging, or any other form of communication. Client represents and warrants that it complies with all laws and regulatory requirements applicable to its use of the services, including privacy laws and regulations. Violation of this provision shall result in immediate termination of the SA and all amounts previously paid to Nexxt for access to its products and services shall be forfeited.
3 FEES AND PAYMENT:
3.1 Client will pay to Nexxt the charges set forth in the SA or as set in an online account. Such charges shall be due and payable in accordance with the payment terms set forth in an SA. Any sum due to Nexxt hereunder for which a time for payment is not otherwise specified in the SA will be due and payable within fifteen (15) days from invoice date. If an agency executes the SA, the agency hereby acknowledges and agrees that it is responsible for paying Nexxt under these Terms, whether or not the agency has received payment from the Client.
3.2 All prices are in U.S. dollars and all payments will be made in U.S. dollars. Nexxt may impose a late payment charge equal to the lesser of (a) 1-1/2% per month or (b) the maximum rate allowed by law for payments received after the due date. Client agrees that it will be responsible for any costs of collection incurred by Nexxt, including reasonable attorneys' fees.
3.3 Payment shall be remitted to the address indicated by Nexxt on the SA.
3.4 Unless otherwise identified in the SA, the terms and conditions for products and services will automatically renew at the end of the current Term unless either party provides written notice to the other party at least 30 days prior to the end of the term.
3.5 All products and/or services purchased must be used by the original End Date specified on the applicable SA. Failure to use such products and/or services in the designated time frame shall not entitle Client to a refund or an extension of the original term.
3.6 Client waives all claims relating to charges (including, without limitation, any claims for charges based on suspected invalid clicks) unless claimed within 60 days after the charge (this does not affect Client's credit card issuer rights). Charges are solely based on Nexxt's measurements for the applicable product and/or service, unless otherwise agreed to in writing.
4 WARRANTIES AND DISCLAIMERS:
4.2 The Nexxt products and services are provided on an 'as is' basis, and Client's use of the products and services are at its own risk. Nexxt will use commercially reasonable efforts to maintain acceptable performance of the services and the Nexxt application service. Nexxt does not warrant that the core services will be uninterrupted, error-free, or completely secure. Nexxt does not and cannot control the flow of data to or from Nexxt and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Client's and/or Nexxt’s connections to the Internet.
4.3 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 refunds for suspected invalid clicks or impressions are in Nexxt's sole discretion.
4.4 Nexxt disclaims all liability for the consequences of errors, lost messages or faulty transmission. Except as hereinafter provided, Nexxt hereby expressly disclaims direct, indirect or consequential liability for any and all damages caused by failure or delay in furnishing services or any other performance under this Agreement. Client shall protect any Client passwords and takes full responsibility for use of any Client accounts by itself or any third parties.
4.5 Except as expressly stated in this Agreement, there are no warranties, express or implied, by operation of law or otherwise. Nexxt disclaims the implied warranties of merchantability and fitness for a particular purpose, for both Nexxt and non-Nexxt products, unless such purpose has been specifically identified in this Agreement. Nexxt warranties extend solely to Client.
4.6 Any obligation of Nexxt hereunder to Client shall extend only to Client and not to any third party.
4.7 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.
5 FORCE MAJEURE:
Nexxt shall be excused from performance hereunder for the period of time and to the extent that Nexxt is prevented from performing the services, in whole or in part, as a result of delays caused by Client, an act of God, war, civil disturbance, court order, labor dispute, third party or vendor non-performance or other cause beyond Nexxt's reasonable control, including failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment and such non-performance shall not be a default or a ground for termination.
6 LIMITATION OF LIABILITY:
6.1 Unless further limited elsewhere in this Agreement, the entire liability of Nexxt and Client's exclusive remedy for damages from any cause relating to or arising out of this Agreement, regardless of the form of action, whether in contract or in tort, will not exceed the charges paid to Nexxt during the twelve-month period immediately prior to Client's notice pursuant to the Agreement for the services which are provided hereunder.
6.2 In no event will either party be liable for (a) any incidental, indirect, special, consequential or punitive damages, including, but not limited to, loss of use, loss of data, revenues, profits or savings, even if the party knew or should have known of the possibility of such damages or (b) claims, demands or actions against the other party by any person, beyond the extent to which the party is responsible for the act or omission by which the claim, demand or action is based.
6.3 Each of the parties acknowledge that by entering into and performing its obligations under this Agreement, Nexxt will not assume and should not be exposed to the business and operational risks associated with Client’s business and Client therefore agrees to indemnify, defend and hold harmless Nexxt from any and all third party claims, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of the conduct of Client’s business, including the use by Client of the services.
6.4 Notwithstanding the foregoing, each of the parties hereto agrees to defend and indemnify the other party against third party claims for damage to tangible property or injury to persons, including death, to the extent proximately caused, or alleged to have been caused, by the negligent acts or omissions of such party. Each party's indemnification obligations hereunder shall be subject to receiving prompt written notice of the existence of any action; being able to, at its option, control the defense of such action; permitting the indemnified party to participate in the defense of any action at such party's own cost and expense; and receiving full cooperation of the indemnified party in the defense thereof.
6.5 Client agrees to indemnify save and hold harmless Nexxt in the event of any dispute, claim or damage asserted against Nexxt by third parties which arise out of or are connected with the Client’s use of the services, whether or not the cause or outcome of such dispute is the subject of this Agreement.
7 SUSPENSION AND TERMINATION:
7.1 Nexxt may suspend providing services hereunder, upon ten (10) days written notice to Client, if any payment under this Agreement is past due. Additionally, Nexxt may terminate this Agreement for any reason with thirty (30) days written notice.
7.2 Without prejudice to other remedies, any fraudulent or improper activities relating to Client’s use of the services, including, but not limited to, false, misleading or fraudulent job postings, SPAM, significant amounts of enduser complaints to Nexxt customer service (in Nexxt’s sole opinion), or unauthorized use of any Nexxt trademarks or other intellectual property, will be recorded and may result in non-payment, removal from the network, immediate termination of this Agreement for default by Client, and/or additional legal action. Any use of these practices will be considered a material breach of this Agreement. If legal action should be sought, Nexxt reserves the right to require Client to provide server log files upon request.
7.3 Except as otherwise provided, and without prejudice to other remedies, if either party materially defaults in the performance of any of such party's material duties or obligations under this Agreement, which default shall not be substantially cured within sixty (60) days after written notice is given to the defaulting party specifying the nature of the default, or with respect to those defaults which cannot reasonably be cured within sixty (60) days, if the defaulting party fails to proceed within sixty (60) days to commence curing such default and thereafter to proceed with all due diligence to substantially cure such default, then the party not in default may forthwith terminate this Agreement by giving written notice to that effect to the defaulting party.
7.4 If either party becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation, winding-up, insolvency or the appointment of a receiver, administrator or similar officer, makes an assignment for the benefit of all or substantially all of its creditors or enters into an agreement for the composition, extension or readjustment of all or substantially all of its obligations, then the other party, within the conditions of applicable law, may immediately terminate this Agreement by giving written notice to that effect to the defaulting party.
8 NEXXT REFUND POLICY:
Since Nexxt offers non-tangible, irrevocable goods, it does not issue refunds once the order is processed and the services are made available. Client is responsible for understanding this upon purchasing any service from Nexxt. In addition, issues concerning special offers or services offered on behalf of Nexxt’s affiliates must be dealt with directly with the appropriate affiliate and are not an issue for a refund or chargeback from Nexxt. However, as exceptional circumstances may sometimes occur, Nexxt will honor requests for returns or refunds in the following situations: (a) Sometimes a Client’s e-mail provider or mail server may have mailing problems which prevent Client from receiving a delivery e-mail from Nexxt. In this case, please contact Customer Service for assistance. Claims for non-delivery must be submitted in writing within 7 days from the order date. Otherwise the product or service will be considered received and available; and (b) problems relating to download or unzipping documents must be submitted to Customer Service. Nexxt will assume that Client has successfully downloaded or accessed the product ordered if Nexxt does not hear from Client within three days of expected delivery, and Client will have no further right of redress or refund for a "download or availability issue" reason.
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 other party shall be disclosed to outside parties by the recipient party, its agents or employees without the prior written consent of the other party. 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, or enter into any related business agreement or relationship with Nexxt business customers or prospects based on information gained as a result of discussions with Nexxt. Further, Client agrees that neither it, nor any of its divisions, subsidiaries, affiliates, employees, agents, or consultants will have any direct or indirect contact with any business institution, investor(s), individual(s), and or other such individuals referenced or introduced by Nexxt, without the express written consent of Nexxt.
Each party agrees to take all reasonable precautions to prevent the disclosure to outside parties of Confidential Information of the other party, including without limitation, these Terms, 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 other 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 other 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 other party or its parent or subsidiaries by a third party who is lawfully permitted to make such disclosure, (vi) made available by the other 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 and content for statistical and comparative purposes provided it is not disclosed in any manner which could reasonably identify Client.
All notices required by this Agreement to be given to Client shall be sent to its address on the first page of this Agreement.
All notices to be given to Nexxt will be sent to:
ATTN: Legal Department
676 East Swedesford Rd
Wayne, PA 19087
11.1 No joint venture. No agency partnership, joint venture or other business relationship shall be construed under, or created by this Agreement. The parties are independent contractors and neither is the agent of the other. Each party shall be solely responsible for the actions of all their respective employees, agents and representatives.
11.2 Governing Law. This Agreement shall be interpreted and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles of conflicts of laws, and with the same force and effect as if fully executed and performed therein. 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.
11.3 Non-Disparagement. Client (including its directors and executive officers and other individuals authorized to make official communications on Client's behalf) will not disparage Nexxt, any of its directors, officers, agents or employees, or its performance, products or services, or otherwise take any action which could reasonably be expected to adversely affect Nexxt’s reputation. Similarly, Nexxt will not disparage Client or any of its directors, officers, agents or employees or otherwise take any action which could reasonably be expected to adversely affect the reputation of Client or any of its directors, officers, agents or employees.
11.4 Client hereby grants to Nexxt a limited, non-exclusive, worldwide, fully paid license to use, reproduce and display Client's name and logo to enable Nexxt to promote Client, subject to Client's logo use guidelines if provided to Nexxt.
11.5 Assignment. Neither this Agreement nor any of the parties’ right or obligations under it may be assigned, delegated, sublicensed, or otherwise transferred by either party without the prior written consent of the other party; provided that Nexxt may assign this Agreement to the surviving company in a merger or to the acquirer of substantially all of its assets.
11.6 Entire Agreement. No conditions other than those set forth in the SA or these 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 Terms, unless expressly stated otherwise in the SA, the Terms shall control. These 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.
Last Updated: January 30, 2020