Nirvana XP TERMS OF SERVICES
IMPORTANT - PLEASE READ CAREFULLY: These Nirvana XP Terms of Service (“Terms” or “Agreement”) is a legal agreement between Nirvana XP, Inc., a Delaware corporation, USA (“Nirvana XP”) and the customer agreeing to these terms (“Customer”) and governs Customer’s use of a platform-as-a-service solution offered by Nirvana XP to streamline and efficiently manage the point of sale functions at the Customer’s business (the “Service”). The Service uses Nirvana XP’s proprietary point of sale software comprising the hosted software platform and downloadable client application (collectively, “Nirvana XP”).
BY CLICKING ON THE “I AGREE” BUTTON OR USING THE SERVICES, YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18, (2) REPRESENTING THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND CUSTOMER, AND (3) CONSENTING TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS OR CANNOT MAKE SUCH REPRESENTATIONS, YOU MAY NOT DOWNLOAD, LAUNCH OR OTHERWISE USE THE SPOTON GPS SOFTWARE.
NIRVANA XP RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO MODIFY OR REPLACE THIS AGREEMENT AT ANY TIME. IF THE ALTERATIONS CONSTITUTE A MATERIAL CHANGE TO THE AGREEMENT, NIRVANA XP WILL NOTIFY CUSTOMER. WHAT CONSTITUTES A “MATERIAL CHANGE” WILL BE DETERMINED AT NIRVANA XP’S SOLE DISCRETION, IN GOOD FAITH AND USING COMMON SENSE AND REASONABLE JUDGMENT. CUSTOMER SHALL BE RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY SUCH MODIFICATIONS. USE OF THE SERVICE BY CUSTOMER FOLLOWING SUCH NOTIFICATION CONSTITUTES CUSTOMER’S ACCEPTANCE OF THESE TERMS AS MODIFIED. IF ANY MODIFICATION IS NOT ACCEPTABLE TO CUSTOMER, CUSTOMER’S SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE SERVICE.
"Account” means an account allowing access to the Service created in Customer’s name.
"Confidential Information” means (a) all nonpublic information disclosed or made available under this Agreement that relates to the provision or receipt of the Service or either party's financial condition, operations or business, and which is clearly identified as confidential at the time of disclosure, (b) the Technology, (c) the Customer Information; and (d) the User IDs.
"Customer Information” means all data, information or other content entered by or collected from Customer (including a User) while accessing and using the Service.
"Device” means the handheld devices on which Nirvana XP Client is downloaded to allow access and use of the Service by Users.
"Excused Downtime” means anytime the Service are not available for access that (i) occurs during a Scheduled Maintenance Period or (ii) is caused by: (A) Customer’s or a Users’ telecommunications and Internet services, (B) services, software or hardware not provided and controlled by Nirvana XP (including third-party services, software or sites that are accessed or linked through the Service), or (C) force majeure events.
"Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and any and all other legal rights protecting intangible proprietary information.
"Nirvana XP Client” means the client-side component of Nirvana XP, which is downloadable on User devices and remotely interfaces with Nirvana XP Platform.
"Nirvana XP Platform” means the server-side component of Nirvana XP, which resides on the servers maintained by Nirvana XP.
"Scheduled Maintenance Period” means any time period during which Nirvana XP performs scheduled or emergency maintenance on the Service.
"Technology” means Nirvana XP and other technology used by, or on behalf of,Nirvana XPto provide the Service, and all data, information and other content included on or accessible through the Service, except for any Customer Information.
"User ID” means unique User identification name and password issued or otherwise assigned by Customer to each User to access and use Nirvana XP and the Service.
"User” means an individual who has been assigned a User Identification by Customer to accessand useNirvana XP and the Service through Customer’s Account.
2. APPLICATION SERVICES.
2.1 Customer’s Right to Access the Service.Subject to the terms and conditions of this Agreement, Nirvana XP will provide Customer with the right to access and use the Service during the term of this Agreement, solely for Customer’s own business purposes. Customer’s rights are non-exclusive, non-transferable and non-sub licensable. Customer may access and use the Service only as permitted by this Agreement. Customer acknowledges that Customer is not receiving any ownership interest with respect to, the Service or any Technology or Intellectual Property Rights related to the Service.Customer agrees to take commercially reasonable steps to ensure, through proper instructions, that all access to and use of the Service by Customer and Users, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will be in accordance with the terms of this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, or the rights of any third party.
2.2 Software License for On-Cloud Service. Subject to the terms and conditions of this Agreement, Nirvana XP hereby grants to Customer, and Customer hereby accepts, during the term of this Agreement, a non-transferable, non-sub licensable (except as expressly provided in this Agreement), worldwide, revocable right and license, to (i) access and use the Nirvana XP Platform through the Customer portal made available by Nirvana XP, and (ii) download and install the Nirvana XP Client, in the object code form, on Devices controlled by Customer, for enabling the use of Service by the Users.
2.3 Software License for On-Site Service. Customer may elect to host Nirvana XP in its entirety on servers maintained by or for Customer. If Customer elects to so host Nirvana XP on Customer’s server, Customer shall have a non-transferable, non-sub licensable (except as expressly provided in this Agreement), worldwide, revocable right and license, to reproduce and install the Nirvana XP Platform Customer’s servers.
2.4 Use of Service by Users. Customer may download the Nirvana XP Client only on that number of Devices for which Customer had paid the subscription fees. Customer shall be responsible for Users’ compliance with this Agreement. Customer may add Devices through mutual agreement with Nirvana XP. Customer will pay the then-current subscription fees for each additional Device. All Devices added during a billing month will be charged in full for that billing month.
2.5 User Identification. Customer will issue a User ID to enable each User to access and use the Service. Customer is solely responsible for tracking the User IDs to specific Users and for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it is fully responsible for all liabilities incurred through the use of any User ID and that any transaction under a User ID will be deemed to have been performed by Customer. Customer will immediately notify Nirvana XP of any unauthorized use of a User ID or any other breach of security known to it.
2.6 Prohibited Use. As a condition of Customer’s use of the Service, Customer agrees not to: (a) access, tamper with, or use any non-public areas of Nirvana XP’s systems or said system’s providers; (b) attempt to probe, scan, or test the vulnerability of Nirvana XP’s systems or any related system or network or breach any privacy, security or authentication measures; (c) reverse engineer or attempt to discover the underlying source code or algorithms of the Technology; (d) provide access to or utilize the Service under a time-share or service bureau arrangement or in any other manner, which would permit any third party, other than Users, to, directly or indirectly, utilize or otherwise benefit from the Service, whether or not for monetary or other consideration; (e) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing Nirvana XP’s systems or providers; or (f) impersonate or misrepresent affiliation with any person or entity. Nirvana XP will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security-related issues, to the fullest extent of the law. Nirvana XP may involve and cooperate with law enforcement authorities in prosecuting users who violate these terms. Customer acknowledges that Nirvana XP has no obligation to monitor Users’ access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure their compliance with these terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
2.7 Customer Equipment. Customer shall be responsible for obtaining and maintaining throughout the term of this Agreement, all computer hardware, tablet devices, software, communication lines, ports, interface equipment, terminals, internet access, bandwidth, network routing equipment, application licenses and other materials (“Customer Equipment”) necessary for each User to access and use the Service at Customer’s facilities. In the event Customer elect to host Nirvana XP Platform, Customer shall not be solely responsible for the servers on which the Nirvana XP Platform is hosted and also for maintaining adequate network connectivity with such servers.
2.8 Customer Information Restrictions. Customer shall (i) be responsible for the accuracy, quality and legality of Customer Information and for the means by which Customer acquired Customer Information, and (ii) warrant that Customer Information does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of publicity and privacy.Customer agrees to take commercially reasonable steps to ensure that Customer Informationdoes not contain any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable. Nirvana XP is not responsible for any public display or misuse of Customer Information. Customer is solely responsible for Customer Information uploaded, published, displayed, linked to or otherwise made available on the Service, and Customer agrees that Nirvana XP is only acting as a passive conduit for the online distribution and publication of Customer Information. Nirvana XP will not review, share, distribute, or reference any of Customer Information except as provided herein or as may be required by law.Although Nirvana XP has implemented commercially reasonable measures to secure Customer Information from accidental loss and from unauthorized access, use, alteration or disclosure. However, Nirvana XP cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Customer Information for improper purposes. Customer acknowledges that all Customer Information is provided at Customer’s own risk.
2.9 License to Nirvana XP. Subject to the Agreement, Customer hereby grants Nirvana XP a worldwide, non-exclusive, royalty-free license during to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and index Customer Information to provide the Service to Customer.
3. SUPPORT AND SERVICE LEVELS.
3.1 Support Service.
(a) Nirvana XP will use commercially reasonable efforts to provide online and phone support 24 hours a day, 7 days a week and 365 days a year with the exception of Nirvana XP holidays. Any Support Services provided by Nirvana XP to Customer onsite will be provided by Nirvana XP's Affiliates / distributor, at Nirvana XP’s option, charged at Affiliates's / Distributor's then-current rates and costs. As part of support services, Nirvana XP will investigate all reproducible, material failures of the Service to conform to the specifications described in the applicable documentation.
(b) The support services will be provided only for those issues forwarded to Nirvana XP from Customer’s designated staff members and entered via the Customer support portal. Customer must provide Nirvana XP with accurate and complete information regarding each issue logged by Customer, including without limitation designated points of contact and passwords for maintenance and repair use by Nirvana XP support agents. Nirvana XP will not be responsible for any delays or failures caused by Customer's failure to abide by the requirements of this Section 3.1 (b).
(c) The support services are offered to Customer on a commercially reasonable-efforts basis only. Customer acknowledges that Nirvana XP or its Affiliates / distributor may not be able to resolve every request for support through the support services. Customer’s exclusive remedy and Nirvana XP’s or its Affiliates / distributor's sole obligation for any failure to resolve a request shall be to use commercially reasonable efforts to resolve such request. In the event that the request for support is not covered by the support services, Customer may have to purchase additional services from Nirvana XP. Any additional services are made available upon agreement by Nirvana XP at Nirvana XP’s then-current rates. The support services are provided for on-going use of the Service; they are not intended to be a substitute for the professional services or training necessary for the implementation of the Service. All other services, including without limitation, on-site assistance, custom programming, network administration, new features and custom designed reports and forms, may be furnished by Nirvana XP at Nirvana XP’s then-current rate.
(d) The support services do not include any of the following: (i) supporting database products, including without limitation, set-up and configuration of database products; (ii) resolving network, workstation or environmental errors not directly related to the Service; (iii) supporting any Service being used in a manner for which they were not designed.
3.2 Service Level Agreement. Nirvana XP will use commercially reasonable efforts to cause the uptime for the Service to be no less than 99%, excluding Excused Downtime. Nirvana XP shall provide an advanced notice of at least two (2) business days to Customer for any scheduled maintenance. These service level commitments will not apply if Customer hosts Nirvana XP Platform.
4.1 Technology. Nirvana XP retains all right, title and interest in and to, and all Intellectual Property Rights embodied in or related to the Service, Technology, and any other information or technology used or made available in connection with the Service, including, without limitation, any and all improvements, updates, and modifications thereto, whether or not made in conjunction with this Agreement. Except as set forth in Section 2, this Agreement does not grant Customer a license to Nirvana XP, or to any other software technology forming part of the Technology, by implication, by estoppel, or otherwise. Without limiting the generality of the foregoing, Customer will not reproduce, reverse engineer, decompile, or disassemble Nirvana XP. Nirvana XP name, logo, and the product and service names associated with the Service are trademarks of Nirvana XP or third parties, and no right or license is granted to Customer to use them separate from Customer’s right to access the Service.
4.2 Customer Information. Subject only to the limited license expressly granted hereunder, as between Customer and Nirvana XP, Nirvana XP acquires no right, title or interest from Customer in or to Customer Information, including any intellectual property rights therein.
5. SUBSRIPTION AND PAYMENTS..
5.1 Paid Subscription. By subscribing to the Service, Customer expressly agrees to pay subscription fees set forth on the Subscription Form, plus any applicable tax. Nirvana XP may increase subscription fees by delivering notice to Customer at least thirty (30) days prior to the end of the then-current subscription period. The subscription charges may be collected on behalf of Nirvana XP by the Nirvana XP's Affiliates / distributor.
5.2 Payment.Unless otherwise agreed by Customer and Nirvana XP, payment for all fees, shall be by automatic ACH /electronic check (eCheck) or credit card auto-payment as indicated on the Subscription Form. Customer authorizes Nirvana XP to debit and/or credit Customer’s bank account for any and all charges incurred without advanced notice via the payment method selected on the Subscription Form, until Customer cancels the subscription. Subscription fees are fully earned upon payment. Customer must cancel the subscription before it renews each month in order to avoid billing of the next month’s subscription fees. Payments are nonrefundable and there are no refunds or credits for partial-month subscription periods.
5.3 Billing Disputes. All billing disputes or requests for billing adjustments must be submitted in writing to Nirvana XP’s or Affiliates / Distributor's accounting department within ten (10) days of the fees being charged by Nirvana XP, accompanied by a reasonably detailed explanation for the basis of such dispute. Nirvana XP may request additional information or supporting documentation or reject Customer’s claim, if unverifiable based on Nirvana XP’s records. If Nirvana XP rejects such claim, Nirvana XP will notify Customer, in which case no refund or credit shall be due. If Nirvana XP determines that the disputed portion was erroneously charged, Nirvana XP will notify Customer of such determination and will credit Customer’s account for such amount in the next appropriate billing cycle.
5.4 Late Payments. Nirvana XP may suspend the Service immediately and without notice if Customer’s account with Nirvana XP is or becomes past due. In addition to any rights and remedies available to Nirvana XP hereunder, at law, or in equity, if Customer fails to pay any fees due hereunder within ten (10) days from the date due, Nirvana XP may impose a late charge equal to the maximum allowable under applicable law. Customer shall be liable for any costs and expenses, including any and all attorneys’ fees, incurred by Nirvana XP in collecting any amounts due and payable hereunder.
6. TERM AND TERMINATION.
6.1 Term. This Agreement will become effective on the Effective Date and shall remain in force for a period set forth in the Subscription Form (the “Initial Subscription Period”). Thereafter, the Agreement shall automatically renew for the same period as the Initial Subscription Period unless either party gives thirty (30) days’ prior written notice of non-renewal to the other party.
6.2 Termination. Following the completion of the Initial Term, Customer may terminate this Agreement and Customer’s subscription at any time by giving a thirty (30) days’ prior written notice to Nirvana XP. Customer acknowledges and agrees that Nirvana XP may stop (permanently or temporarily) providing the Service (or any features within the Service) to Customer at Nirvana XP’s sole discretion, without prior notice to Customer, if Customer breaches the terms of this Agreement. In addition, Nirvana XP may terminate this Agreement and Customer’s right to access and use the Service for any reason or no reason by giving thirty (30) days’ prior written notice to Customer. If Nirvana XP terminates the Service or this Agreement for any reason other than Customer’s breach of this Agreement or of any other contractual obligation to Nirvana XP, Nirvana XP will provide a refund of any amounts paid for the unused portion of the Service. Customer acknowledges and agrees that, if Nirvana XP disables access to Customer’s account, Users will be prevented from using the Service. Nirvana XP will provide Customer with access to Customer Information until thirty (30) days following the date of termination, at which point such access shall cease. It is Customer’s sole responsibility to download or delete any of Customer Information following a termination and Nirvana XP has no obligation to make such data available more than thirty (30) days following the date of termination or to maintain copies of Customer Information. Termination of this Agreement by either party shall not prejudice Nirvana XP's right to recover or prove damages for amounts incurred or accrued and unpaid prior to the date of termination. No remedy referred to in this Agreement is intended to be exclusive, but each remedy shall be cumulative and in addition to any other remedy referred to above or otherwise available to Nirvana XP at law or in equity and may be exercised concurrently or consecutively.
7. CONFIDENTIAL INFORMATION.
7.1 Obligations. Customer agrees to disclose to Nirvana XP only that portion of Customer’s Confidential Information that is reasonably necessary to enable Nirvana XP to provide the Service, and Nirvana XP agrees to disclose to Customer only that Confidential Information of Nirvana XP that is reasonably necessary to enable Customer to receive the Service. The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Serviceunder this Agreement, respectively, the use in accordance with all terms and conditions of this Agreement. Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
7.2 Termination of Obligations.The Receiving Party’s obligations under this Section 7 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
7.3 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 7.3.
8. NO WARRANTIES. THE SERVICE IS PROVIDED “AS IS” AND CUSTOMER'S USE OF THE SERVICE IS AT ITS OWN RISK. NIRVANA XP MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE SERVICE. NIRVANA XP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER. FURTHERMORE, NIRVANA XP DOES NOT WARRANT THAT THE SERVICE WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, THAT THE USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE.
9.1 Mutual Indemnification. Each party agrees, at its sole cost and expense, to defend, indemnify and hold the other party harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising in connection with such party’s gross negligence and/or willful misconduct.
9.2 Nirvana XP Indemnification. Nirvana XP shall, at its own expense, defend, indemnify and hold Customer harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising from or based on a claim that the Service, as provided by Nirvana XP, infringe the copyright or misappropriate the trade secrets of any third party.
9.3 Customer Indemnification. Except for claims covered under Nirvana XP’s indemnification obligations under Section 9.2 above, Customer shall, at its own expense, defend, indemnify and hold Nirvana XP harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising in connection with any use of the Services.
9.4 Indemnification Procedures. The indemnification obligations of each party are dependent on the party seeking indemnity (a) giving the indemnifying party prompt written notice of such claim, (b) permitting the indemnifying party to defend or settle the claim, (c) not making any admission of liability in respect of the whole or any part of the claim or entering into any agreement or negotiation to settle or dispose of the claim, (d) providing all reasonable assistance to the indemnifying party in defending or settling the claim, and (e) the claim shall not have arisen due to unauthorized acts or misconduct of the other party or a third party, acting on behalf of such other party.
10. LIMITATION OF LIABILITY.
10.1 Limitation. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, NIRVANA XP’S MAXIMUM LIABILITY TO CUSTOMER UNDER THIS AGREEMENT IS LIMITED TO THE FEES PAID BY CUSTOMER TO NIRVANA XP IN THE SIX (6) CALENDAR MONTH PERIOD IMMEDIATELY PRECEDING THE DATE FOR WHICH ANY CLAIM OF LIABILITY IS MADE.
10.2 Disclaimer. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL NIRVANA XP BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING OUT OF LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ENTERPRISE OR LOSS OF OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CONSEQUENCES OF ERRORS, DOWNTIME, WHETHER SCHEDULED OR UNSCHEDULED, OR FAULTY TRANSMISSION.
10.3 Basis of Bargain. THE PARTIES ACKNOWLEDGE THAT (A) NIRVANA XP 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, and (B) THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
11. ASSIGNMENT. Customer may not assign, resell or otherwise transfer any goods or services received under this Agreement to a third party without the prior written consent of Nirvana XP. Notwithstanding the foregoing, Customer may assign all of its rights and duties under this Agreement to a third party that: (a) directly or indirectly controls Customer; (b) is controlled by or under common control with Customer; or (c) purchases all or substantially all of Customer’s assets; provided, that: (i) Customer gives prior written notice to Nirvana XP of the assignment, (ii) the assignee agrees to be bound by all the terms of this Agreement; and (iii) number of Users authorized by assignee to use Nirvana XP does not exceed the number of Users authorized by Customer prior to such assignment without the payment of additional fees. Assignment of this Agreement will not release Customer from any prior outstanding obligation under this Agreement. Subject to the foregoing, this Agreement will inure to the benefit of each party’s successors and assigns. Any assignment in violation of this Section 11 is null and void.
12. RELATIONSHIP. No agency, partnership, or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party. Neither party has the authority to act for, bind, or incur any debts or liabilities on behalf of, the other party in any respect whatsoever. Each party will act in good faith and refrain from activities that attempt to induce the other party’s employee(s) to leave their employer, or to interfere with the other party’s relationship with its employees. The parties agree that during the term of the Agreement, and for a period of twelve (12) months thereafter, neither party will, in any way, directly or indirectly (a) induce or attempt to persuade any employee of the other to quit employment, (b) otherwise interfere with or disrupt the other party’s relationship with its employees, or (c) knowingly solicit, entice or hire away any employees of the other party. Nothing in this Section 12 prohibits either party from hiring in response to a general solicitation for employment or if approached by the prospective employee without solicitation by the party hiring.
13. FORCE MAJEURE. Nirvana XP will be excused from performance under this Agreement for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by Customer or third parties or an act of God, war, civil disturbance, court order, labor dispute or other cause beyond Nirvana XP’s reasonable control, including without limitation failures or fluctuations in electrical equipment. In addition, the Servicemay be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications.Nirvana XP is not responsible for any delays, failures, or other damage resulting from such problems. Customer acknowledges that the Service may be affected by numerous factors outside of Nirvana XP’s control.
14. GENERAL TERMS. If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscious ability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired. Under no circumstances will the preprinted terms of any purchase order or any other terms apply to this Agreement. Capitalized terms have the meanings given in this Agreement. No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless made in writing and signed by authorized representatives of both parties and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either of the parties in exercising any right will operate as a waiver, nor will any single or partial exercise by either of the parties of any right preclude any other or further exercise thereof or the exercise of any other right. All notices, consents and approvals under this Agreement must be delivered in writing by overnight delivery with a tracking system, personal delivery, or certified mail, postage pre-paid, to the other party at its address set forth in above or at such other address as may be later designated by such party. Notices will be deemed to have been received upon the date of receipt or, in the case of certified mailing, two (2) days after deposit in the mail. This Agreement will be governed by the laws of the State of Delawarewithout regard to conflicts of law principles. All disputes arising under this Agreement must be brought in the state and federal courts located in Las Vegas, Nevada. Each party irrevocably hereby consents to the jurisdiction and venue of any such court in any such action or proceeding. Customer agrees to comply with all laws and regulations applicable to the use of the Technology, including but not limited to export laws, regulations and laws. These Terms and the Subscription Form, which is incorporated herein by this reference constitute the entire, final and exclusive agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous agreements, understandings, discussions, negotiations and communications, whether written or oral, express or implied.