Terms of Service

Introduction

Thank you for choosing Nexxa.ai, Inc. (“Company”) for your business.  The Company provides a Platform as a Service (“PaaS”) that uses Gen AI to create personalized and actionable briefings for B2B sales reps, saving them 10% of their time while simultaneously accelerating conversion rates.  The Company refers to the foregoing products and/or services herein collectively as “Services.”

Annexes 1-3

These Terms of Service (“Agreement,” or “Terms of Service”) apply to any use of and access to our Services, PaaS, and/or our website located at https://nexxa.ai/ (“Website”) by you and/or your agents (collectively, “you”).  When you use our Services, you are agreeing to our terms, so please carefully read the Terms of Service, Annexes 1-3 attached hereto, and the Privacy Policy, incorporated herein, as these documents contain important information regarding your legal rights and obligations.  

When you use our Services, you are agreeing to the foregoing Terms of Service, Annexes 1-3 attached hereto, and our Privacy Policy, as amended from time to time.  All the aforementioned documents are fully incorporated by reference herein.  Please carefully read these documents and terms carefully as they contain important information regarding your legal rights and obligations. 

If you are a user of our Services or someone authorized by a User to access the Platform (collectively “Users”), whether you purchased directly from us or received our Services via one of our Customers, as that term is defined below, then you herein agree to Annex 1, our End User License Agreement, by installing and using our Platform and Services. 

If you are a business (“Customer”) hiring us to deploy our Platform and Services to Users at your facility or business, you herein agree to Annex 2, our Enterprise Agreement, as a “Customer”, as that term is defined therein. 

If you are not yet a paying Customer of the Company but rather using our freemium model, you herein agree to Annex 3, our Trial Software License Agreement.

Agreement

THIS DOCUMENT, THE TERMS OF SERVICE AND THE ANNEXES 1-3 ATTACHED HERETO, IS A LEGAL AGREEMENT BETWEEN THE COMPANY AND YOU WHICH GOVERNS YOUR USE OF THE SERVICES AND THE WEBSITE.  YOUR USE OF THE SERVICES AND THE WEBSITE CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS IN THESE TERMS OF SERVICE, ANNEXES 1-3 ATTACHED HERETO, AND THE PRIVACY POLICY INCORPORATED HEREIN; AND YOUR REPRESENTATION THAT YOU ARE AT LEAST 16 YEARS OF AGE OR OLDER.  IF YOU OBJECT TO ANYTHING IN THESE TERMS OF SERVICE AND ANNEXES 1-3 ATTACHED HERETO, YOU ARE NOT PERMITTED TO USE THE SERVICES.  If you accept these Terms of Service and use the Services on behalf of a company, organization, or other legal entity, you represent and warrant to the Company that you have full power and authority to do so.  

Effective Date.   This Agreement is effective (“Effective Date”) on the date you first access or use the Services and/or the Website, whichever is earlier.

Specific Terms for Users and Customers

Fees.

Upon notice to you, the Company may increase any fees specified in connection with its Services.  Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”).  You are responsible for paying all Taxes associated with purchases and transactions under this Agreement.  

You may pay by credit card by way of the Company’s third-party payment processor.   You agree not to file a credit or debit card chargeback with regard to any amount of fees charged in connection with the Services.  Instead, you agree to abide by the dispute resolution procedures outlined herein, below.

Fees/Payment Processing.  

Users of the Website and/or Services will be required to provide their bank account details to the Company or its designated third-party payment processor(s), (“Third-Party Payment Processors”) to process payment(s).  The Company collects, analyzes and relays information to allow the Third-Party Payment Processors to process these payment(s).  

You authorize us to process payment(s) for the Services, using the payment information you have supplied, like your bank account details and/or information about your Third-Party Payment Processor, to process payment(s) for the Services.  Specifically, you will be required to provide your bank account details to the Company and/or the Third-Party Payment Processors, and/or register with the Third-Party Payment Processors to process payment(s) for the Services.  You agree to provide the Company and/or the Third-Party Payment Processors with accurate and complete information about you and/or your business; and you authorize the Company to share it and any transaction information related to your use of the Services and/or Website with the Third-Party Payment Processors for the purpose of processing payment(s), including but not limited to the service fees owed to Company for the use of the Service.  

The Company reserves the right, in its sole discretion (but not the obligation), to: (i) place on hold any payment and out of pocket expenses; and/or (ii) refund, provide credits or arrange for the Third-Party Payment Processors to do so, as necessary.  

If you believe a payment has been processed in error, you must provide written notice to the Company within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute.  If notice is not received by the Company within such a thirty (30) day period, the payment will be deemed final and valid.

The Company is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by any User that are deceptive, fraudulent or otherwise invalid.  By using the Services, you hereby release the Company from any liability arising from fraudulent actions. You will also use best efforts to promptly notify the Company of any fraudulent actions which may affect the Services.  The Company reserves the right, in its sole discretion, to terminate the account of any User that engages in, or enables any other User to engage in, fraudulent actions.

While the Company takes what it believes to be reasonable efforts to ensure secure transmission of your information to the Third-Party Payment Processors that assesses and processes payment(s), the Company is not responsible for any fees or charges assessed by third party service providers, or any errors in the processing of payment(s) by third party service providers, including any errors that result from third-party negligence, improper transmission of payment information, your mistaken submission of payment information, or your submission of erroneous payment information.  Your sole recourse is with the Third-Party Payment Processors which processed the payment(s). You herein agree that you have read and agreed to the Privacy Policies and Terms of Service of the Third-Party Payment Processors.

Account.

By creating an online account with the Company on its Website ("Account"), you are granted a right to use the Services provided by the Company subject to the restrictions set forth in these Terms of Service, Annexes 1-3 attached hereto, and the Privacy Policy, incorporated by reference herein.  

Our Account registration process will ask you for information including your name, email and or physical address, phone number, etc. (hereinafter, collectively referred to as “Personal Information,” as previously defined in our Privacy Policy).  By registering for an Account, you warrant you are over the age of 16, and further agree to provide true, accurate, current and complete information about yourself as prompted by the registration process.  You further agree that you will not knowingly omit or misrepresent any material facts or information, and that you will promptly enter corrected or updated information in your Account, or notify us in writing regarding your corrected or updated information.  

We may verify your provided information, as required for your use of and access to the Services.  You agree to maintain your Account solely for your own use.  You agree that you will not allow another person to use your Account.  We reserve the right to suspend or terminate the Account of any User who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.

You are solely and entirely responsible for maintaining the confidentiality of your Account, and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so.  Furthermore, you are solely and entirely responsible for any and all activities that occur under your Account, including any charges incurred relating to the Services. 

The Company is not liable for any harm caused by or related to the theft of your Account, your disclosure of your Account, or your authorization to allow another person to access or use the Services using your Account.  You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to you.  You acknowledge that the complete privacy of your data and messages transmitted while using the Services and/or the Website cannot be guaranteed in the event of breach.

Personal Information.

As outlined in the Company’s Privacy Policy, incorporated herein, we will protect your Personal Information and disclose it only in a limited number of circumstances.  We have implemented measures designed to secure your Personal Information from accidental loss and from unauthorized access, use, alteration, or disclosure.  However, we cannot guarantee that unauthorized third parties will never be able to thwart those measures, or use your Personal Information for improper purposes.  You acknowledge that you provide your Personal Information at your own risk.

Prohibited Uses.

You may use the Services and/or Website only for lawful purposes and in accordance with these Terms of Services, including any documents incorporated herein by reference, e.g., our Privacy Policy. You acknowledge that certain information available to you is copyrighted and more generally, contains proprietary information belonging exclusively to the Company. You acknowledge and agree that the Company nor its licensors, sub-licensors, or affiliates grant title to any of the Services under these Terms of Service.

You agree not to use the Services and/or Website:

• Access or use the content in order to build a similar or competitive service or product.

• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries). 

• To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services and/or Website, or which, as determined by us, may harm the Company or users of the Services and/or Website, or expose them to liability.

• Use the Services and/or Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.

• Use any robot, spider, or other automatic device, process, or means to access the Services and/or Website for any purpose, including monitoring or copying any of the material on the Website.

• Use any manual process to monitor or copy any of the material on the Services and/or Website, or for any other purpose not expressly authorized in these Terms of Services, without our prior written consent.

• Use any device, software, or routine that interferes with the proper working of the Services and/or Website.

• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Services and/or Website. 

• Attack the Services and/or Website via a denial-of-service attack or a distributed denial-of-service attack.

• Otherwise attempt to interfere with the proper working of the Website.

  
  

Termination.  

The Company reserves the right, in its sole discretion, to terminate your Account if you violate these Terms of Service or for any reason or no reason at any time.  We may also suspend your access to the Services and/or Website, and your Account if you: (a) have violated the terms of these Terms of Service, any other agreement you have with the Company; (b) pose an unacceptable credit or fraud risk to us or Users; (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct; or (d) for any other reason in the Company's sole discretion.

If your Account is terminated or suspended for any reason or no reason, you agree: (a) to continue to be bound by these Terms of Service; (b) to immediately stop using the Services, (c) that any licenses granted to you under these Terms of Service shall end; (d) that we reserve the right (but have no obligation) to hide or delete all of your information and account data stored on our servers, in accordance with the Privacy Policy; and (e) that the Company shall not be liable to you or any third party for termination or suspension of access to the Services or for deletion or hiding of your information or account data.  You agree that the Company may retain and use your information and account data as needed to comply with investigations and applicable law, and as indicated in the Company’s Privacy Policy.

However, we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services.  Any termination of these Terms of Service does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us, as provided in these Terms of Service.

Specific Terms for Website Visitors, Users and Customers

Links, Generally

Links to Third-Party Accounts.  

As part of the functionality of the Services, and pursuant to our Privacy Policy, which is incorporated herein, we offer you the option to link your Account with online accounts you may have with third parties such as Google (collectively, "Third Party Accounts") by either: (i) providing your Third Party Account login information through the Services; or (ii) allowing the Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. 

You represent that you own and are entitled to disclose your Third Party Account login information to the Company and/or grant the Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account.  The Company will not pay any fees or be subject to any usage limitations imposed by such third party service providers. 

By granting the Company access to any Third Party Accounts, you understand that (i) the Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the "SNS Content") so that it is available on and through the Services via your Account, including without limitation any friend lists, and (ii) the Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your Account with the Third Party Account.  Please note that if a Third Party Account or associated service becomes unavailable or the Company's access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Services. 

Depending on the Third Party Accounts you choose to link with the Website, and subject to the privacy settings that you have set in the Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your Account on the Website.  Depending on your privacy settings, the Company may access your contacts associated with a Third Party Account, solely for the purposes of identifying and informing you of those contacts who have also registered to use the Services and/or Website, unless you expressly tell us not to do so in writing.

Finally, you will have the ability to disable the connection between your Account and your Third Party Accounts at any time.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS.  The Company makes no effort to review SNS Content by any Third Party Accounts for any purpose, including but not limited to, for accuracy, legality or non-infringement, and the Company is not responsible for any SNS Content by Third Party Accounts.

Links to Other Websites.

As described in the Privacy Policy, incorporated herein, the Services may contain links to third-party websites, such as but not limited to LinkedIn.com,  that are not owned or controlled by the Company.  The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites.  In addition, the Company will not and cannot censor or edit the content of any third-party site.  By using the Services, you expressly relieve the Company from any and all liability arising from your use of any third-party website that is referenced or linked on our Website.

Links to this Website.

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website and/or Services, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with the Company or cause any other confusion, and (c) the links and the content on your website do not portray the Company or its products or Services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to the Company.  The Company reserves the right to suspend or prohibit linking to the Website and/or Services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

Intellectual Property

Intellectual Property Rights.

As discussed in the Company’s Privacy Policy, incorporated herein, the Company owns all right, title and interest in and to the Services, the Company data and Aggregated Data, including, without limitation, all intellectual property rights therein.  Subject to the limited rights expressly granted to you under this Agreement and the Privacy Policy, the Company reserves all rights, title and interest in and to the Services, the Company data and Aggregated Data, including, without limitation, all related intellectual property rights.  The Company’s service marks, logos and product and service names are owned by the Company. You agree not to display or use any of the Company marks in any manner without the Company’s express prior written permission.  

In addition, any trademarks, service marks and logos associated with a third party offering may be the property of the third-party provider, and you should consult with their trademark guidelines before using any of their marks.

Any information and data that you submit to the Website or in connection with the Services must not violate the intellectual property rights of third parties.

Finally, as specified in the Company’s Privacy Policy, you grant us a license to use your customer feedback in connection with providing the Services and for general marketing purposes, unless you notify us otherwise in writing.

Data Ownership and Usage.

As specified in the Company’s Privacy Policy, incorporated herein, we will own all Aggregated Data, and the Privacy Policy will govern how we collect and use Personal Information that is submitted through the Services. By accessing or using the Services, you agree that you have read and accept our Privacy Policy.

As explained in our Privacy Policy, we have controls in place to prevent outside parties from stealing or accessing your data and Personal Information, but they are not foolproof.  Please exercise caution when disclosing any Personal Information while using our Website.  We will notify one another if either of us becomes aware that your data and/or Personal Information has been compromised.

You are solely responsible for resolving disputes regarding ownership or access to your data, including those involving any current or former owners, co-owners, employees or contractors of your business.  You acknowledge and agree that the Company has no obligation whatsoever to resolve or intervene in such disputes.

Your Communications with the Company

No Submission of Unsolicited Ideas and/or Materials.

In your communications with the Company, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, "Unsolicited Ideas and Materials"). Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User Content and licensed to us as set forth below. In addition, the Company retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. The Company’s receipt of your Unsolicited Ideas and Materials is not an admission by the Company of their novelty, priority, or originality, and it does not impair the Company’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

DMCA Notice.

The Company will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act ("DMCA"), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner's) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:

(i) a legend or subject line that says: "DMCA Copyright Infringement Notice";

(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);

(iv) your full name, address, telephone number, and e-mail address;

(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

(vii) your electronic or physical signature.

The Company will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses set forth in the “Notice” section of this Agreement.

It is often difficult to determine if your copyright has been infringed. The Company may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and the Company may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification. Without limiting the Company's other rights, the Company may, in appropriate circumstances, terminate a repeat infringer's access to the Services, Website, and/or any other website owned or operated by the Company.

Counter-Notification.

If access on the Website to a work that you submitted to the Company is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

(i) a legend or subject line that says: "DMCA Counter-Notification";

(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Website from which the material was removed or access to it disabled);

(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

(iv) your full name, address, telephone number, e-mail address, and the username of your account;

(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

(vi) your electronic or physical signature.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

Disclaimer/No Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR THIS WEBSITE. 

THE COMPANY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES AND/OR THIS WEBSITE WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES AND/OR WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. 

THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT.  

ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “COMPANY PARTIES”).

Indemnification 

You agree to indemnify, defend, and hold harmless the Company from and against any and all third party claims alleged or asserted against any of the Company, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach of any provisions of this Agreement; (b) any actual or alleged violation by you, an affiliate, or end user of the intellectual property, privacy or other rights of the Company or a third party; and (c) any dispute between you and another party regarding ownership of or access to your data or Personal Information submitted to the Company via its Website.

No Liability

THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY THE COMPANY.  THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID PRECEDING THE DATE OF THE INCIDENT.  ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH THE COMPANY AND THE COMPANY PARTIES.

IN NO EVENT WILL THE COMPANY HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE COMPANY, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

THE COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS RELATED TO OR ARISING FROM USE OF THE SERVICES.  YOU HEREBY RELEASE AND FOREVER DISCHARGE THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER USER, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF  SERVICES OR OTHERWISE.

THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Dispute Resolution

Informal Dispute Resolution.   We want to address your concerns without needing a formal legal case. Before filing a claim against the Company, you agree to try to resolve the dispute informally by contacting support-team@nexxa.ai.  We'll try to resolve the dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or the Company may bring a formal proceeding.

We Both Agree To Arbitrate. You and the Company agree to resolve any disputes through final and binding arbitration, except as set forth under “Exceptions to Agreement” to Arbitrate below.

Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by contacting support-team@nexxa.ai within 30 days of first accepting these Terms of Service and stating that you (including your first and last name) decline this arbitration agreement. 

Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in Santa Clara County, California, or any other location we agree to.

Arbitration Fees. The AAA rules will govern payment of all arbitration fees. The Company will pay all arbitration fees for claims less than $75,000. The Company will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

Exceptions to Agreement to Arbitrate. Either you or the Company may assert claims, if they qualify, in small claims court in Santa Clara County (CA) or any United States county where you live or work.  Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Company’s products or the Company Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

No Class Actions. You may only resolve Disputes with the Company on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.  Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under this Agreement.

Judicial Forum for Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and the Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California.  Both you and the Company consent to venue and personal jurisdiction there.  We both agree to waive our right to a jury trial.

Miscellaneous Provisions

Choice of Law. These Terms of Service and the relationship between you and the Company shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.

Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and the Company.

Entire Agreement. These Terms of Service, Annexes 1-3 attached hereto, and Privacy Policy referenced herein constitute the entire agreement between you and the Company concerning the subject matter herein and the use of the Services and/or Website.

They supersede any and all previous or contemporaneous agreements, written or oral, between you and the Company, including previous versions of these Terms of Service and/or Privacy Policy, with respect to the terms referenced herein.  If there is a discrepancy between these Terms of Service, Annexes 1-3 hereto, and Privacy Policy and any offline agreements you have with the Company, the terms in the Terms of Service and Privacy Policy shall govern.

Modification.   The Company reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of these Terms of Service, Annexes 1-3 hereto, and/or Privacy Policy, and any and all referenced and/or incorporated exhibits or policies, programs and guidelines.  The Company will post the updated terms to this page and endeavor to notify you of any material changes by email, but will not be liable for any failure to do so.  If any future changes to these Terms of Service and/or Privacy Policy are unacceptable to you or cause you to no longer be in compliance with these Terms of Service, you must terminate, and immediately stop using, the Services.  Your continued use of the Services following any revision to these Terms of Service and Annexes 1-3 constitutes your complete and irrevocable acceptance of any and all such changes.

Assignment.   The Company may assign these Terms of Service, Annexes 1-3 hereto, and/or Privacy Policy in whole or part at any time.  However, you may not assign, delegate or transfer this Agreement in whole or in part, without the Company’s prior written consent.

No Waiver.   Any failure of the Company to enforce or exercise a right provided in these Terms of Service, Annexes 1-3 hereto, and/or the Privacy Policy is not a waiver of that right.

Severability.   Should any provision of these Terms of Service, Annexes 1-3 hereto, and/or Privacy Policy be found invalid or unenforceable, the remaining terms shall still apply.

Force Majeure.   Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving the Company’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility.  Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services.  Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

Notices. Any notices provided by the Company under this Agreement and/or the Privacy Policy may be delivered to you to the email address(es) we have on file for your Account.  You hereby consent to receive notice from us through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day.  Except as otherwise specified in the Agreement, any notices to the Company under this Agreement must be delivered either via email to support-team@nexxa.ai or via first class registered U.S. mail, overnight courier, to: Nexxa.ai, Inc., 440 N. Wolfe Road, #283, Sunnyvale, CA 94085. 

ANNEX 1

End User License Agreement   

This End User License Agreement (“Agreement”) supplements the terms of the Company’s foregoing Terms of Service (“Terms of Service”) to which this is attached and fully incorporated by reference herein. To the extent there is a conflict, the Terms of Service shall govern.  You herein agree that as of the first date of use of the Company’s Website, Product, or Services, as those terms are defined in the Terms of Service, you have read and agreed to the Terms of Service and the attached Annexes 1-3.

For clarity, the following provisions govern the use of the Company’s Platform as a Software product and service (the “Platform”), which may be further governed by a separate End User License Agreement accessible through the Platform:

By continuing to use the Platform, you and your Authorized Users (collectively, “you”)  agree as follows:

● You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;

● You will use the Platform in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by the Company from time to time; and

● You understand, accept, and have received this Agreement and its terms and conditions, and acknowledge and demonstrate that you can access this Agreement.

If you do not agree with the terms and conditions in this Agreement, please discontinue all further use of the Platform.

· The Company’s License to You.  The Company grants you a single, non-exclusive, non-transferable and limited personal license to access and use the Platform. This license is conditioned on your continued compliance with the terms and conditions in this Agreement. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Platform and, if you sell or otherwise transfer a device on which the Platform is installed to a third party, you must remove the Platform from such device before doing so. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Platform, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Platform).

· Your License to the Company.  Any communications or material of any kind that you email, post, or otherwise transmit to the Company using the Platform, including data, questions, comments, or suggestions (your “Communications”) will become the property of the Company. You hereby grant a license to the Company to use any ideas, concepts, know-how, or techniques contained in your Communications for any purpose including, but not limited to, developing and marketing products using such information.

· Electronic Signatures.  You agree to be bound by any affirmance, assent, or agreement you transmit to the Company using the Platform, including but not limited to any consent you give to receive communications from the Company solely through electronic transmission. You agree that, when in the future you click on an “I agree,” “I consent” or other similarly worded “button” or entry field in the Platform, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.  Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

· Carrier Charges.  Company does not charge for the Platform, but your carrier’s data rates may apply to your use of the Platform.

· Use of the Company Services.  In addition to all provisions set forth elsewhere in the Terms of Service, the following requirements apply to your use of the Platform:

• You will not collect or store personal data about other users of the Platform.

• You will not use the Platform for any commercial purpose not expressly approved by the Company in writing.

• You will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.

• You will not use the Platform when you are driving a motor vehicle, even if doing so is legally permitted in your location.

· Security of Data Transmission and Storage.  Electronic communications using the Platform may not always be encrypted. You acknowledge that there is a risk that data, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between you and the Company or between you and other parties.  Company and its affiliates, and agents are permitted, but not obligated, to review or retain your Communications. The Company may monitor your Communications to evaluate the quality of service you receive, your compliance with the Agreement, the security of the Platform, or for other reasons. You agree that such monitoring activities will not entitle you to any cause of action or other right with respect to the manner in which the Company or its affiliates or agents monitor your Communications and enforces or fails to enforce the terms of the Agreement. In no event will the Company or any of its affiliates or agents be liable for any costs, damages, expenses, or any other liabilities incurred by you as a result of monitoring activities by the Company or its affiliates or agents.

· Hyperlinks. The Platform may contain links to other sites. The Company does not control such other sites, and the Company and its affiliates and agents make no representations whatsoever concerning the content, accuracy, security or privacy of those sites. The fact that the Company has provided a link to a site is not an endorsement, authorization, sponsorship, or affiliation with respect to such site, its owners or its providers. There are risks in using any information, software, or products found on the Internet, and the Company cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you hold the Company or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on other sites.

· Trademarks and Copyrights. The Platform is owned by the Company or its affiliates or agents, and is protected by United States copyright laws and international treaty provisions. All content, trademarks, services marks, trade names, logos, and icons are proprietary to the Company or its affiliates or agents. Nothing contained in the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed in the Platform without the written permission of the Company or such third party that may own the trademarks displayed in the Platform. Your use of the trademarks displayed in the Platform, or any other content in the Platform, except as provided herein, is strictly prohibited.  Images displayed through the Platform are either the property of, or used with permission by the Company or its affiliates or agents. You are prohibited from using or authorizing the use of these images unless specifically permitted under the Agreement. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes.

ANNEX 2

Enterprise Agreement

This Enterprise Platform as a Service Subscription Agreement (“Agreement”) supplements the terms of the Company’s foregoing Terms of Service (“Terms of Service”) to which this is attached and fully incorporated by reference herein. To the extent there is a conflict, the Terms of Service shall govern.  You herein agree that as of the first date of use of the Company’s Website or Services, as those terms are defined in the Terms of Service, you have read and agreed to the Terms of Service and the attached Annexes 1-3.

This Agreement is by and between Nexxa.ai, Inc. (hereinafter the “Company” or “Nexxa”) and any applicable business, including its subcontractors, agents, or affiliates, hiring us to deploy our Services to Users at your business (“Customer”). For purposes of this Agreement, Nexxa and Customer each will be referred to individually as a "Party" and together as the "Parties."

For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby additionally agree as follows:

1.  Definitions

"Aggregated Use Data" means data and information generated by Nexxa related to the operation of the PaaS and Customer's use of the PaaS that is used by Nexxa in an aggregate and anonymized manner, including to improve the PaaS and compile statistical and performance information related to the provision and operation of the PaaS;

"Agreement" shall mean this Platform as a Service Subscription Agreement; 

"Authorized Users" shall mean Customer's employees and independent contractors working for Customer in the ordinary course of Customer's business who: (a) agree to be bound by the terms of this Agreement; and (b) are specifically authorized by Customer to access the PaaS;

"Customer Data" means information, data, and other content, in any form or medium, that is collected or otherwise received, directly or indirectly, from Customer by or through the PaaS (for the avoidance of doubt, Customer Data does not include Aggregated Use Data);

“Order” means an order pursuant to which from time to time Customer orders rights to the PaaS. 

"PaaS" shall mean Nexxa’s platform-as-a-service subscribed to by Customer hereunder, that provide a generative AI platform offering a comprehensive solution that uses Gen AI to create personalized and actionable briefings for B2B sales reps, saving them 10% of their time while simultaneously accelerating conversion rates; 

"Fees" shall mean the the charges set forth in the applicable Order for the provision and use of the PaaS Services and Platform; 

"Personal Data" means information about an individual that (a) can be used to identify, contact or locate a specific individual; (b) can be combined with other information that is linked to a specific individual to identify, contact or locate a specific individual; or (c) is defined as "personal data" or "personal information" by applicable laws or regulations relating to the collection, use, storage or disclosure of information about an identifiable individual. If you submit any Personal Data relating to other people to us or to our service providers in connection with your use of our Services, Website, or App, you represent and warrant herein that you have the authority to do so and to permit us to use the information in accordance with our Privacy Policy;

"Term" shall mean any Initial Term or Renewal Term, as applicable; and

"User Account" shall mean an Authorized Users password-protected account. 

2. Cloud Services Subscriptions

(a)   Subscription.  Nexxa will use commercially reasonable efforts to provide the Customer access to the PaaS during the Term, subject to the terms and conditions of this Agreement.  Nexxa retains all right, title, and interest in and to the PaaS, including without limitation all software included in and used to provide the PaaS and all logos and trademarks reproduced through the PaaS. This Agreement does not grant Customer (a) any right to reproduce, modify, distribute, or publicly display or perform the software included in the PaaS or (b) any other right to the PaaS not specifically set forth herein. Nothing in this Agreement shall obligate Nexxa to continue providing access to any PaaS beyond the date when Nexxa ceases providing such PaaS to Customers generally.

(b) Access. Nexxa may provide some or all elements of the PaaS through third-party service providers. Customer’s Authorized Users may only access the PaaS through their User Account provided that, all such access, use, and receipt by the Authorized User is subject to and in compliance with this Agreement and with Nexxa’s policies, as such policies may be updated from time to time, and the Customer shall at all times remain liable for its Authorized User’s compliance with the Agreement. Subject to scheduled maintenance and outages of Nexxa’s infrastructure services provider, Nexxa shall take reasonable steps to ensure that the PaaS shall be accessible and functional on a continuous basis. The Client and its Authorized Users are required to keep their respective credentials, such as usernames and passwords to the PaaS, secure and secret. To the extent permitted by law, Nexxa is not liable for any unauthorized access to the PaaS. Customer must immediately notify Nexxa, as soon as reasonably practical, of any unauthorized use of its or its Authorized credentials. 

(c)   Restrictions on Use. Customer shall not edit, alter, abridge or otherwise change in any manner the content of the PaaS, including, without limitation, all copyright and proprietary rights notices.  Customer may not, and may not permit others to (1) disclose, distribute, transmit, or make available any receive proprietary content or Confidential Information of the PaaS or Company based on Customer’s Customer Data obtained while using the PaaS, to any third party, except as required by law or with Company’s prior written consent (2) reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from the PaaS; (3) modify, translate, adapt, alter, or create derivative works (including, without limitation, trading algorithms) from the PaaS; (4) copy, distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the PaaS; (5) distribute, sublicense, rent, lease, loan or grant any access to or use of the PaaS who is not an Authorized User; (6) post, upload, forward, or otherwise transmit any file or software code which contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the PaaS; (7) access or use the PaaS for purposes of competitive analysis of the PaaS, the development, provision, or use of a competing PaaS or product or any other purpose that is to the detriment or commercial disadvantage of Nexxa; (8) remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the PaaS, or related documentation, and any copies thereof in any form; or (9) use the PaaS in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance, or any rights of a third party.  Customer agrees that only Authorized Users shall be permitted access to the PaaS.  Except as set forth herein, no clients or other persons or entities who are not legal employees of Customer or independent contractors consulting for Customer in the ordinary course of Customer's business may be Authorized Users.

3.   Term; Early Termination

(a) Term.  This Agreement shall begin on the Effective Date, unless terminated earlier in accordance herewith, and shall continue for a [1] year term (“Term”), and Customer shall be liable for the fees for the Term. 

(b) Termination by Customer.  This Agreement may be terminated by the Customer for any reason with three months advance notice.  Any notice of termination shall be in writing.

(c) Termination by Nexxa. In the event that: (i) Customer fails to pay any Charges not disputed in good faith in accordance with this Agreement by the specified due date, and (ii) Customer fails to cure such failure within 10 days of receipt of written notice from Nexxa of its intention to terminate, then Nexxa may, by written notice to Customer, terminate this Agreement in its entirety, provided the total of all such overdue Charges exceeds, in the aggregate, the average monthly Charges invoiced in the prior 12 months.  In addition, Nexxa, may, by written notice to Client, terminate this Agreement in its entirety if Client: (a) materially breaches (i) a provision of this Agreement relating to Nexxa’s Confidential Information or Intellectual Property in connection with this Agreement, or (ii) a provision of this Agreement relating to restrictions on the use of the Services by third parties; and (b) fails to cure, to the extent reasonably practical, or mitigate such breach and implement safeguards to prevent similar future breaches in all other cases, within 30 days of receipt of written notice from Nexxa of its intention to terminate.  Nexxa acknowledges and agrees that this section sets forth Nexxa’s sole and exclusive right to terminate.  

(d) Effect of Termination. Upon the termination or expiration of this Agreement for any reason, (i) Customer’s subscription to the PaaS will automatically and immediately terminate, and Customer will have no further right to access or use any of PaaS; (ii) Customer’s access to the PaaS may be disabled without notice; (iii) Customer will pay any amount owed to Nexxa by Customer hereunder. If the Agreement is terminated in accordance with Section 9(b)(ii), upon written request, all Customer Data will be deleted and will not be able to be restored or retrieved.  

4. Fees and Payment

(a) Fees.  In exchange for the subscription granted above, commencing on the Effective Date, Customer shall pay Nexxa the Fees for the provision and use of the Services, payable in advance, and on any other commercial terms contained in this Agreement.  

(b) Automatic Renewal of PaaS Services.  Within 90 days of the expiration of the then current Term and any renewal term for the Services, Nexxa will notify the Customer of the upcoming expiration and any proposed changes for the renewal term. The proposed changes for any renewal term will not exceed the Fees for the prior year, plus the lesser of (i) 3% of such prior year’s Fees or (ii) the increase in Nexxa’s list prices for Fees.  Except as expressly provided otherwise, there will be no other increase in the Fees. The provision of and rights to the Services and Platform will automatically renew at the end of the initial Term and any renewal term, unless: (i) Customer notifies Nexxa in writing at least 90 days prior to the expiration of the Initial Term or the then-current renewal term that Client does not desire to renew; (ii) Customer fails to pay the undisputed Fees required under this Agreement and fails to cure such non-payment within 10 days notice from Nexxa; or (iii) Nexxa ceases to offer any other customer services similar to the Services and Platform and provides Customer at least 1 year prior notice of Nexxa’s intent to discontinue such services and platform for all of its customers. 

(c) Late Payments.  If Customer fails to pay the Fees by the due date specified on the invoice, Nexxa shall be entitled to interest from the day on which the Fees are due and may, in its sole discretion, suspend Customer's access to the PaaS. Both parties agree that the rate of interest on overdue invoices shall be 1.5 percent (1.5%) per month or the amount afforded by law, whichever is greater.  

(d) Taxes. Customer will be responsible for, and will promptly pay or reimburse Nexxa for, the payment of all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Nexxa that is in accordance with the direction or request of Customer) that are based on or with respect to any services or goods provided by Nexxa to Customer, or the amounts payable to Nexxa therefore.

5. Limited Scope Account Maintenance & Development

(a) During the term of this Agreement, Customer may request Nexxa to perform certain account maintenance and development services limited to user identification and password change management, data import/export, monitoring, technical support, maintenance, training, backup and recovery, and change management (hereinafter, "Professional Services''), as necessary for the productive use of the PaaS under this Agreement.  Nexxa will, in its sole discretion, determine the level and scope of Professional Services necessary for the productive use of the software. Should the Customer desire further work beyond the Professional Services provided under this Agreement, the Customer shall enter into a separate  agreement with Nexxa’s designated service provider.  

6.    Property and Proprietary Rights

(a)  Nexxa’s Property.  As between Nexxa and Customer, Nexxa retains all right and title and all intellectual property rights in and to (i) the PaaS, including without limitation the source code, metadata, and Aggregated Use Data contained therein or generated therefrom and (ii) any further developments or enhancements of the PaaS resulting from Professional Services. The works and databases included in the content of the PaaS are protected by applicable copyright laws. This Agreement is a subscription to use, and not a contract of sale for, the PaaS. If Customer or any of its employees or contractors suggests or recommends changes to the PaaS, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Nexxa is free to use, without any attribution or compensation to Customer or any other party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback.

(b)  Customer Property.  As between Nexxa and Customer, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, subject to the rights and permissions granted in this Section 5(b). Customer hereby grants Nexxa all such rights and permissions in or relating to Customer Data as are necessary or useful for Nexxa to perform its obligations hereunder.  

7.    Disclaimer

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PAAS, THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED "AS IS." NEXXA MAKES NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES AS TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE WITH RESPECT TO THE SYSTEM, ITS CONTENT, ANY INFORMATION STORED THEREIN OR OBTAINED THEREBY. TECHNICAL DIFFICULTIES COULD BE ENCOUNTERED IN CONNECTION WITH THE SYSTEM. THESE DIFFICULTIES COULD INVOLVE, AMONG OTHERS, FAILURES, DELAYS, MALFUNCTION, SOFTWARE EROSION OR HARDWARE DAMAGE, WHICH DIFFICULTIES COULD BE THE RESULT OF HARDWARE, SOFTWARE OR COMMUNICATION LINK INADEQUACIES OR OTHER CAUSES. SUCH DIFFICULTIES COULD LEAD TO POSSIBLE ECONOMIC AND/OR DATA LOSS. IN NO EVENT WILL NEXXA OR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS OR DIRECTORS BE LIABLE FOR ANY POSSIBLE LOSS, COST OR DAMAGE INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES WHICH MIGHT OCCUR AS A RESULT OF OR ARISING OUT OF USING, ACCESSING, INSTALLING, MAINTAINING, MODIFYING, DEACTIVATING OR ATTEMPTING TO ACCESS THE PAAS OR OTHERWISE. 

8.    Indemnification

(a) Customer Infringement Indemnity.  Customer, at its expense, will defend, indemnify, and hold harmless Nexxa and its affiliates and their respective officers, directors and employees from and against any and all third party claims for damages, judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys' fees, that are incurred by Nexxa and are based on or otherwise attributable to (i) Customer's gross negligence or more culpable act or omission (including recklessness or willful misconduct); (ii) a claim that the Customer Data infringes or misappropriates the intellectual property rights of such third party; or (iii) a violation of federal, state, or local law or regulation by Customer, including, but not limited to, by virtue of the content of the Customer Data.

(b) Nexxa Infringement Indemnity.  Nexxa, at its expense, will defend, indemnify, and hold harmless Customer and its affiliates and their respective officers, directors and employees from and against any and all third party claims for damages, judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys' fees, that are incurred by Customer and are based on or otherwise attributable to (i) Nexxa’s gross negligence or more culpable act or omission (including recklessness or willful misconduct); or (ii) a violation of federal, state, or local law or regulation by Nexxa.

(c) Conditions to Indemnification Obligations.  As a condition to either Party's (the "Indemnifying Party") obligation to indemnify the other Party (the "Indemnified Party") under this Agreement, the Indemnified Party will: (i) provide the Indemnifying Party with prompt written notice of any claim that would give rise to liability of the Indemnifying Party under this Agreement, provided that failure to timely give such notice will not relieve the Indemnifying Party of its obligations to the extent that such failure does not materially prejudice the Indemnifying Party's ability to defend or settle such claim without liability; (ii) tender sole control of the defense and settlement of such claim to the Indemnifying Party; and (iii) provide the Indemnifying Party, at the Indemnifying Party's expense, with such assistance as the Indemnifying Party may reasonably request.

9.    Limitation of Liability

NEXXA AND ITS SUBSIDIARIES, AFFILIATES, STOCKHOLDERS, DIRECTORS, OFFICERS, AND EMPLOYEES (THE "NEXXA PARTIES") WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO CUSTOMER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS AND LOST REVENUES (COLLECTIVELY, THE "EXCLUDED DAMAGES"), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE NEXXA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF THE NEXXA PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE NEXXA PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. 

The limitations of liability in this Section 8 represent an allocation of risks between Nexxa and Customer which allocation is reflected in the Fees hereunder. 

10.  Confidential Information; Non-Disclosure

(a) Confidentiality.  From time to time, the Parties may disclose or make available to one another, in connection with this Agreement, certain information which is considered by the disclosing Party to be confidential or proprietary information about itself or its business (collectively, "Confidential Information").  Confidential Information includes, but is not limited to, any information, communication or data, in any form (including oral, written, graphic or electronic forms) which the disclosing Party identifies as confidential or which is of such a nature that the receiving Party should reasonably understand that the disclosing Party desires to protect such information against unrestricted disclosure or use, including without limitation, business information, financial data and marketing data. Notwithstanding the foregoing, Confidential Information does not include information that is: (i) generally known in the public (other than through unauthorized disclosure); (ii) rightfully in the receiving Party's possession prior to disclosure as evidenced by competent written proof; (iii) independently developed by the receiving Party without reliance on or reference to the disclosing Party's Confidential Information; or (iv) rightfully received by the receiving Party from a third party without a duty of confidentiality; provided that the receiving Party has no knowledge that such information is subject to a confidentiality agreement and such information is not of a type or character that a reasonable person would have regarded it as confidential.  

(b)  Obligations.  Each Party agrees that during the Term and thereafter it will: (i) use Confidential Information belonging to the disclosing Party solely for the purpose(s) of this Agreement; and (ii) take all reasonable precautions to ensure that it does not disclose Confidential Information belonging to the disclosing Party to any third party (other than the receiving Party's personnel, representatives, employees and agents on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without the disclosing Party's prior written consent.  The receiving Party is responsible for any breach of the confidentiality provisions of this Agreement by its personnel, representatives, employees and agents.  All Confidential Information shall remain the sole property of the disclosing Party and no license under any trade secrets, copyrights, or other rights is granted under this Agreement or by any disclosure of Confidential Information under this Agreement.  Upon the disclosing Party's request, all Confidential Information made available under this Agreement, including copies of Confidential Information, must be promptly returned to the disclosing Party or securely destroyed.  For Confidential Information that does not constitute "trade secrets" under applicable Law, these confidentiality obligations will expire five (5) years after the termination of this Agreement.  In the event the receiving Party is required to disclose any Confidential Information by order of a court or any government agency, or by law or judicial or administrative process, or in accordance with applicable professional standards or rules, the receiving Party will: (x) give prior notice of such disclosure to the disclosing Party (if legally permitted to do so) together with a copy of the material proposed to be disclosed; (y) reasonably cooperate with the disclosing Party at the disclosing Party's request and expense to resist or limit such disclosure or to obtain a protective order; and (z) in the absence of a protective order or other remedy, disclose only that portion of the Confidential Information that is legally required to be disclosed and assure that, if applicable, confidential treatment will be accorded the disclosed information.

11.  Representations and Warranties

(a)  Representations and Warranties of the Parties. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

(b)  Additional Representations and Warranties of Customer. Customer represents, warrants, and covenants to Nexxa that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Nexxa and processed in accordance with this Agreement, the Customer Data does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any other rights of any third party or violate any applicable law.

ANNEX 3

Trial Software Licensing Agreement

This Trial Software Licensing Agreement (“Agreement”) supplements the terms of the Company’s foregoing Terms of Service (“Terms of Service”) to which this is attached and fully incorporated by reference herein. To the extent there is a conflict, the Terms of Service shall govern.  You herein agree that as of the first date of use of the Company’s Website or Services, as those terms are defined in the Terms of Service, you have read and agreed to the Terms of Service and the attached Annexes 1-3.

This Trial Software License Agreement (“Agreement”) is entered into as of the date you create an Account (as defined below) with Nexxa.ai, Inc., a Delaware corporation with a principal place of business at 440 N. Wolfe Road, #283, Sunnyvale, CA 94085 (“Licensor”).

This Agreement contemplates the licensing for evaluation purposes only of certain software product(s) or versions of product(s) developed by Licensor that are listed on Attachment A hereto.  Licensor is willing to provide a copy of such software product(s) and related documentation to you for the sole purpose of permitting you to conduct an evaluation on the terms and conditions set forth in this Agreement.

1.  License to Use.  Licensor grants you a non-exclusive and non-transferable license (the “License”) for the use of Licensor software, specifically the Platform as a Service located at www.nexxa.ai (the “PaaS”), free of charge for 7 days.  You may use the Licensor’s PaaS free of charge for 7 days, as indicated on Attachment A hereto, and you agree herein to the terms of this Agreement as well as the Company’s Terms of Service and Privacy Policy, which are fully incorporated by reference herein.  The license of the PaaS to you (“License”) governs any releases, revisions or enhancements to the PaaS which Licensor may furnish to you during the 7-day term. 

2.  Intellectual Property Restrictions.  The PaaS is copyrighted and contains proprietary information and trade secrets belonging exclusively to Licensor.  Title to the PaaS and all copies are retained by Licensor or its licensors.  You will not use the PaaS except for Licensor’s evaluation purposes only (the “evaluation purpose”).  You may not make copies of the PaaS.  You will reproduce all proprietary rights notices we provide, if any, to the extent your agents or independent contractors use the PaaS on your behalf.  You may not modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer the PaaS, or create derivative works based upon all or part of the PaaS.  You may not transfer, lease, assign, make available for timesharing, or sublicense, in whole or in part, the PaaS without the Licensor’s express written permission.  Licensor does not grant any license or title to any trademarks or trade names under this Agreement or contained in/on the PaaS.

3.  Exclusion of Warranty.  You expressly acknowledge that the PaaS may have defects or deficiencies which cannot or may not be corrected by Licensor.  The  PaaS is provided “AS IS” without any warranty of any kind.  LICENSOR DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.  The Licensor takes no responsibility for any adverse effects on your software, hardware, network or related equipment related to the installation or operation of the PaaS.

4.  Evaluation Support.  You will install and use the PaaS in accordance with the specifications provided by Licensor.  You agree to cooperate and consult with Licensor in your evaluation of the PaaS, including your evaluation of  its features, performance, functionality and useability.  You will provide oral or written evaluations of the PaaS to Licensor at Licensor’s request. You hereby assign and will assign to Licensor all rights and title in your evaluations, including, but not limited to, all patents, copyrights, trade secrets or other intellectual property rights in the evaluations. You will provide Licensor access to your computers to observe your use and evaluation of the PaaS, upon Licensor’s request.  You understand that you are exclusively responsible for the supervision, management and control of your computer systems and network and the use of the PaaS, including but not limited to: (a) assuring proper configuration, installation, audit controls and/or operating methods, (b) establishing adequate backup plans, (c) implementing sufficient procedures to satisfy your requirements for security and accuracy of input and output as well as restart and recovery in the event of a malfunction; and (d) detecting unauthorized access and viruses and preventing any loss or damage to data or other software.

5. Confidentiality.  You agree that you will not: (a) disclose the PaaS or written evaluations, or the ideas, techniques and concepts contained in the PaaS, or any of the written evaluations, to any third party without the prior written consent of Licensor, (b) copy the PaaS or any portion thereof, or (c) use the PaaS for any purpose except for the Licensor’s evaluation purpose articulated herein.  You agree to hold the PaaS in confidence, to maintain the PaaS in a secure environment and take all reasonable precautions to maintain security in order to prevent unauthorized use or disclosure.  You will  inform your independent contractors or employees having access to the PaaS of your limitations, duties and obligations regarding nondisclosure and copying of the PaaS, and ensure that they comply with the same.  Prior to disposing of any media, you will erase or otherwise destroy the PaaS contained on that media, at the Licensor’s request.

6. Limitation of Liability.  LICENSOR AND YOU AGREE THAT LICENSOR WOULD NOT PROVIDE THE SOFTWARE WITHOUT INCLUSION OF THIS SECTION 6. IN NO EVENT WILL LICENSOR OR ITS LICENSOR BE LIABLE FOR ANY DAMAGES INCLUDING WITHOUT LIMITATION ANY LOST REVENUE, PROFIT, DATA, OR OTHER SOFTWARE OR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING OUT OF THE USE OR INABILITY TO USE THE PAAS, EVEN IF LICENSOR KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. 

7. Automatic Conversion; Termination.  

1. Automatic Conversion. The License will automatically convert to a paid subscription plan at the end of the 7-day trial period (as specified on Attachment A), unless terminated in writing by either Party before the end of the evaluation period. Details governing paid subscription plans and pricing can be found in the Terms of Service and Annex 2 (Enterprise Agreement) attached thereto, incorporated by reference herein, and if you continue to use the Services and PaaS, you hereby agree to the terms and conditions contained in the Terms of Service and Annex 2 (Enterprise Agreement).  Any collection of your payment information and payment processing for our Services and your use of the PaaS shall be governed by the general Terms of Service and Annex 2, which you herein accept by continuing to use the PaaS.

2. Termination. The License may be terminated in writing by either party before the end of the evaluation period. The License will terminate immediately, without prior notice from Licensor, if you fail to comply with any provision of the License or this Agreement.

8.  Export Regulations.  The PaaS, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries.  You agree to comply strictly with all those regulations and acknowledge your responsibility to obtain all necessary and appropriate licenses to export, re-export or import the PaaS.

9.   Further Commitment.  Nothing in this Agreement, including without limitation the provision of the License, implies that you have any rights in any commercially issued software produced by Licensor, including without limitation a commercial variation or release of the PaaS.  If you continue to use the PaaS after the Term, you herein agree to terms and conditions of that Enterprise Software Licensing Agreement.

9.  Related Software.  You are responsible for providing any commercially available software, equipment or services that are required to operate the PaaS.

10.  Marketing and Advertising. You hereby authorize and give permission for Licensor and Licensor’s Affiliates to use the legal or fictional company name, logo, trademark and/or personal quotes in connection with promotional materials that Licensor may disseminate to the public relating to Licensor’s relationship with you, for Licensor’s general business purposes. Promotional materials may include, but are not limited to, brochures, video tapes, emails, internet websites, advertising in newspapers and/or other periodicals, lucites, pictures and photographs. 

11.  Miscellaneous.  

1. Choice of Law.  This Agreement and your use of the PaaS is governed under the laws of the State of Delaware, excluding the choice of law provisions.  

2. Jurisdiction.  Except for proceedings for injunctive relief to protect Licensor’s intellectual property rights, you and Licensor agree to submit to the exclusive jurisdiction of the federal and state courts in Santa Clara County, California.  

3. Survival.  The provisions of this Agreement regarding confidentiality, disclaimer of warranty, limitation of liability, and all other provisions which, as indicated by their sense and content, are intended to survive and will survive any termination of this Agreement or the evaluation. 

4. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, and any assignment made in violation of this provision shall be null and void. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

5. Independent Contractors; No Obligation. The Parties are independent contractors, and nothing contained in this Agreement shall be construed to constitute you and Company as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.  No Party shall incur any debts or make any commitments for the other under this Agreement. Nothing contained in this Agreement shall be construed as obligating either Party to enter into any agreement or transact any business with the other Party, or to purchase, transfer or otherwise dispose of any technology, services or products as a result of the execution of this Agreement.

6. Entire Agreement.  This Agreement is the entire agreement between you and Licensor relating to the PaaS and: (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communication between the parties.  If any provision of this Agreement is held invalid, all other provisions will remain valid.  No modification to this Agreement is binding, unless in writing and signed by a duly authorized representative of each party.  

   
   

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING AGREEMENT, INCLUDING THE REFERENCED TERMS OF SERVICE AND PRIVACY POLICY, AND AGREE THAT MY USE AND CONTINUED USE OF THE PAAS PURSUANT TO THIS AGREEMENT AND THE REFERENCED DOCUMENTS HEREIN IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF ALL.

ATTACHMENT A

DESCRIPTION OF SOFTWARE: 

Licensor’s Platform as a Service (“PaaS”) located at www.nexxa.ai

Pricing for Nexxa basic after BETA trial: https://nexxa.ai/pricing 

LENGTH OF EVALUATION: 7 days