Nash Customer Terms and Conditions - US
These terms and conditions (“Terms and Conditions”) between Nash Technologies Inc., a Delaware corporation with a principal place of business at 2261 Market Street #4286, San Francisco CA 94114 (“Nash”) and you (“Customer”), and govern your access to and use of the Nash Platform and related services as provided for in Order Form executed by you and Nash which incorporate these Terms and Conditions.
“Analytics Data” means the analytics data associated with the Services provided to the Customer within the Nash Platform.
“Authorized User” means any individual authorized by the Customer to use the Services.
“Customer Data” means all data, information, text, drawings or other material, in whatever form that information may exist, about Customer, which is provided to Nash in connection with these Terms and Conditions (including commercially sensitive information such as any costing and pricing data about Customer’s business) and the Analytics Data. Customer Data includes any Personal Data and any information provided by Customer regarding Customer’s facilities, personnel, assets, programs or the Services.
“Delivery Provider” means an individual or entity that will fulfill an Order by delivering Goods to a Recipient.
“Documentation” means then-current documentation for the Services including the documents found at https://docs.usenash.com/, as may be modified by Nash from time to time.
“Force Majeure Event” means any of the following causes, provided that they are outside the reasonable control of the affected Party:
- act of God, including but not limited to earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;
- war, invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power;
act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
- industrial action not solely related to the operations of a Party; confiscation, nationalization, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government authority;
- suspension of the provision or receipt of the Services (or part thereof) required by an applicable law or as a result of any order, proclamation, direction or similar act of any government agency in response to, including but not limited to, related to an epidemic or pandemic.
“Goods” means the items in an Order that will be delivered to the Recipient.
“Marketplace Platform” means a technology platform operated by Customer that is integrated with the Nash Platform and that enables the exchange of information regarding Orders and related Goods between such Marketplace Platform and the Nash Platform.
“Merchant” means the business that places an Order for Goods to be delivered to a Recipient. To the extent Customer places an Order directly via the Nash Platform for delivery of Customer’s Goods to a Recipient, the term “Merchant” as used in these Terms and Conditions includes Customer.
“Nash API” means the Nash application programming interface that enables the exchange of information between Nash and the Customer or a Marketplace Platform, as applicable.
“Nash Platform” means the Nash API, website, software, and any related Nash technology made available by Nash to Customer under these Terms and Conditions designed to facilitate the submission and receipt of information regarding deliveries.
“Order” or “Orders” means any event in which a Customer (or a Merchant) requests for Nash to provide key parameters to evaluate a proposed delivery, whether (i) directly through the Nash Platform (ii) by submitting an API request to the Nash Platform or (iii) through a Marketplace Platform that sends the order object to or processes the order object using the Nash Platform whether or not such Order reaches a dispatched status.
“Order Form” means the products and services information incorporated herein and attached hereto as Attachment A and additional Order Forms which may be entered into by the Parties from time to time.
“Party” means either Nash or Customer, as applicable, and “Parties” means Nash and Customer collectively.
“Personal Data” means personally identifiable information or information as defined or as otherwise provided for by applicable laws which will be used by the Parties in compliance with applicable law and by Nash in compliance with the privacy policy located at: https://www.nash.ai/terms/privacy-policy.
“Recipient” means the business or other entity to which Goods subject to an Order will be delivered.
“Services” means the Nash Platform and any related services or professional services provided by Nash to Customer under these Terms and Conditions.
A. Services. Nash will make the Services available to Customer in accordance with these Terms and Conditions and the Documentation.
B. Support. Nash support inquiries may be submitted via email (support@usenash.com), via chat on portal.usenash.com, via Slack, and via phone (855.607.1995).
C. Data Protection and Security. Nash shall implement the data security measures as specified in the Data Protection and Security Addendum, located at https://www.nash.ai/terms/data-protection, and incorporated herein.
D. Compliance with Laws. Nash shall comply with all applicable laws and regulations in connection with the performance of its obligations or exercise of its rights under these Terms and Conditions, including holding any licenses, permits or insurance that may be legally required to perform its obligations under these Terms and Conditions.
E. Platform Only. The Nash Platform is a web-based technology that connects Customer, merchants and Delivery Providers as described in these Terms and Conditions. As a platform provider, Nash is not a Delivery Provider or a merchant and does not provide delivery services or engage in the purchase or sale of Goods. The actual contract for the provision of any delivery services is the Delivery Provider Terms (as defined in Section 4 below) directly between the Customer and the Delivery Provider. Nash does not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any delivery services provided by Delivery Providers and does not guarantee or endorse the performance standards of any Delivery Provider. Nash is not a Broker, Freight Forwarder, Motor Carrier or Shipper as such terms may be defined in rules or regulations issued by the Federal Motor Carrier Safety Administration or in any other similar rules or regulations or by any other governmental body. Customer acknowledges that the Services provided by Nash are not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b) or any similar statute or regulation.
F. Limited Warranty. Nash warrants that: (i) the Services will materially perform and be performed in accordance with these Terms and Conditions and the Documentation; (ii) any professional services provided under these Terms and Conditions will be performed in a good and workmanlike manner consistent with industry standards (by trained and skilled personnel) and in accordance with the terms of these Terms and Conditions and all applicable laws; (iii) there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which it is involved or that may have a materially adverse effect on its ability to perform its obligations in accordance with these Terms and Conditions; (iv) it is validly existing under the laws of the place of its incorporation, and has the power and authority to enter into and perform its obligations under these Terms and Conditions; and (v) that it has sufficient financial capacity to enter into these Terms and Conditions and perform the obligations contemplated under these Terms and Conditions (and it has no present knowledge of any circumstances which could cause it to become unable to meet such obligations in the future).
A. Order Information. Customer will provide all information required to fulfill each Order processed via the Nash Platform, including the Recipient’s address, contact information, and any special instructions required for fulfillment of an Order. If Customer operates a Marketplace Platform that receives Order information from Merchants, Customer shall promptly provide all Order information received from a Merchant without alteration to Nash via the Nash API or other element of the Nash Platform as agreed between Customer and Nash. As between the Parties, the Customer is responsible for any liability arising from inaccurate or incomplete Order information as provided to Nash.
B. Requested Delivery Requirements. Nash will match Customer’s Orders to available Delivery Providers that are willing to comply with any Requested Delivery Requirements.
C. Consents. Customer is responsible for obtaining, or causing to be obtained, all consents, permissions and approvals from Recipients and, if Customer operates a Marketplace Platform, from Marketplace Platform merchants, in each case as necessary for Nash to use the Customer Data (including Order information, contact information (including telephone numbers)) and other information received from Recipients or, if applicable, Merchants, in each case to enable tracking, delivery and fulfillment of Orders by Nash and the applicable Delivery Providers and to otherwise use the Customer Data to provide the Services and to exercise the rights specified herein, including any consents, permissions or approvals necessary or required by applicable law (including the Telephone Consumer Protection Act of 1991 and state law equivalents) from Recipients necessary to contact the Recipients and provide delivery status updates and other information regarding Orders by email, text messages, and telephone communications.
D. Compliance with Laws. Customer shall comply with all applicable laws and regulations in connection with the performance of its obligations or exercise of its rights under these Terms and Conditions, including holding any licenses, permits or insurance that may be legally required to sell products included in Orders.
E. Conflicting Agreements. Customer represents and warrants that these Terms and Conditions with Nash shall not cause Customer to be in breach of any of its contractual agreements, including any other point to point delivery agreement the Customer has entered into with a Delivery Partner.
F. Authorized Users. Customer is liable for all acts or omissions of its Authorized Users under these Terms and Conditions.
G. Use of Marks. Customer grants to Nash a license to use Customer’s name, logo, and marks (“Marks”) on Nash’s Platform to perform the Services, only as provided by and requested by Customer, such as use on dashboard or tracking features where Customer wishes to identify itself.
Orders may be subject to the terms and conditions imposed on such Order by the applicable Delivery Provider, such as the Delivery Provider’s cancellation and refund policies, as well as terms of carriage (“Delivery Provider Terms”). In particular, should Customer use Uber as a Delivery Provider, Customer agrees to be bound by the Uber terms and conditions located here: https://www.uber.com/legal/en/document/?name=uber-direct-api-terms-and-conditions&country=united-states&lang=en. Nash is not a party to the Delivery Provider Terms. Customer agrees that it is solely responsible for its compliance with Delivery Provider Terms and if Customer has any disputes with respect to the Delivery Provider Terms, the Customer must address this directly with the applicable Delivery Provider.
Fees shall be paid by Customer to Nash as specified on, and in accordance with, the applicable Order Form unless otherwise agreed by the Parties in writing or specified on the Nash Platform (for Delivery Provider charges). The fees in the Order Form do not include any federal, state, local or other taxes, tariffs, duties or governmental charges applicable to the Nash Platform (collectively, “Taxes”) and Customer is responsible for the amount of any applicable Taxes. Nash will include on its invoices, and Customer will pay any Taxes Nash is required to charge Customer. Nash may increase the fees specified in an Order Form for a forthcoming Renewal Term upon written notice to Customer at least ninety (90) days prior to the commencement of the Renewal Term. Such revised Fees shall apply beginning with the applicable Renewal Term.
A. Term and Termination. The Term of these Terms and Conditions, including the terms applicable to any renewal thereof, shall be as set forth in the applicable Order Form. Either Party may immediately terminate these Terms and Conditions or any applicable Order Form by providing notice to the other Party (i) if the other Party materially breaches these Terms and Conditions and does not cure such material breach within thirty (30) days after the terminating Party provides notice of such breach to the other Party; (ii) if the other Party becomes insolvent, makes an assignment for the benefit of creditors, or files a petition in bankruptcy and such petition is not dismissed within sixty (60) days; or (iii) as specified in the applicable Order Form.
B. Effect of Termination. Upon expiration or termination of the Agreement for any reason: (i) the Receiving Party will promptly return to the Disclosing Party, or upon request destroy, all documents, records and materials (including copies) which contain, incorporate or have been based on the Confidential Information (as each such term is defined in Section 8A below) except that the Receiving Party is entitled to keep any documents, records and materials which Nash is required to keep by law, or for audit purposes or to the extent that the Confidential Information concerned has been incorporated into board records or electronic backup records which are not technically or legally capable of deletion or retained under a records retention policy, provided that any retained Confidential Information shall remain subject to the obligations under these Terms and Conditions for so long as the Confidential Information is retained; (ii) Customer shall pay Nash any outstanding fees; and (iii) Sections 5, 8, 10, 11, 13 and 14 of these Terms and Conditions will survive any such expiration or termination and continue in full force and effect (for the period contemplated thereby, to the extent applicable); and (iv) all rights that a Party has accrued before termination or expiry continue.
A. Access Rights. Nash grants to Customer during the Term a non-exclusive, non-transferable right to access and use the Services solely to exercise its rights and perform its obligations under these Terms and Conditions.
B. Certain Restrictions. Customer shall not, and shall not allow any third party, to: (i) make the Services available to any third party or use the Services for the benefit of anyone other than Customer unless expressly permitted otherwise in these Terms and Conditions; (ii) sell, resell, license, sublicense, distribute, make available, rent or lease the Services unless expressly permitted otherwise in these Terms and Conditions; (iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (iv) use the Services to knowingly store or transmit malicious code; (v) attempt to circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to, the Services or related systems or networks; (vi) permit direct or indirect access to or use the Services in a way that circumvents these Terms and Conditions; (vii) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof; or (viii) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics, or (3) copy any ideas, features, functions or graphics. Customer agrees not to do any of the following: (I) use, display, mirror or frame the Services or any individual element within the Services, Nash’s name, any Nash trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Nash’s express written consent; (II) use the Services in any manner that violates federal, state, local, or international law or regulation, including, without limitation, any laws regarding or related to the export of data or software to and from the United States or other countries; (III) access, tamper with, or use non-public areas of the Services, Nash’s computer systems, or the technical delivery systems of Nash’s providers; (IV) impersonate or attempt to impersonate Nash, a Nash employee, contractor or agent, another User, or any other person or entity; (V) attempt to probe, scan or test the vulnerability of any Nash system or network or breach any security or authentication measures (without Nash’s prior written consent); (VI) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Nash or any of Nash’s providers or any other third party (including another user) to protect the Services; (VII) use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any material on the Services; (VIII) attempt to gain unauthorized access to, damage, disrupt, or interfere with any parts of the Services, or any server, computer or database connected to the Services; or (IX) attempt to decipher, decompile, disassemble or reverse engineer the Services or any of the software used to operate the Services; and/or (X) encourage or enable any other individual to do any of the foregoing.
C. Modifications. Nash reserves the right to modify and update the Services, provided the modifications or updates do not materially reduce the performance or functionality of the Services.
D. Suspension. Nash reserves the right to suspend Customer’s access to the Services for any failure to comply with Section 7B. Nash may also suspend Customer’s access to all or any part of the Services if Nash believes, in its good faith and reasonable discretion, that Customer’s use of the Platform poses a risk to the security or integrity of Nash’s systems, interferes with Nash’s ability to reliably provide the Services to other customers, or may subject Nash to liability. Nash shall use reasonable efforts to notify Customer prior to suspension and shall restore access to Customer as soon as such risks no longer apply.
E. Ownership. Nash owns all right, title, and interest in and to the Services, including any improvements, enhancements and derivatives thereto and all intellectual property rights therein. Other than as expressly set forth in these Terms and Conditions, no license or other rights in the Services are granted to the Customer.
F. Customer Data. Customer retains all right, title, and interest in and to the Customer Data. Customer hereby grants to Nash a non-exclusive, worldwide, royalty-free and fully paid-up license to access and use Customer Data: (a) during the Term to provide the Services to Customer as set forth in these Terms and Conditions, and (b) during the Term and thereafter, to create aggregated or de-identified data from the Customer Data for Nash’s lawful business purposes, including to improve the Services (including any underlying technology), provided that such aggregated or deidentified data does not identify Customer or contain any Personal Data.
G. Usage Data. Nash may collect and generate general performance and usage data about Customer’s use of the Services (such as technical logs) and the performance of the Services (“Usage Data”) to operate, improve, analyze, and support the Services and for other lawful business purposes. The Usage Data shall not identify Customer or use any Personal Data.
H. Third Party Users. Customer may permit third parties (including contractors, service providers, or vendors) to access and use the Services solely on Customer’s behalf and for Customer’s internal business purposes provided that: (i) Customer remains fully responsible for all acts and omissions of such third parties in connection with their use of the Services and agrees to indemnify and hold harmless Nash from any claims, damages, or liabilities arising out of third-party use of the Service on Customer’s behalf; (ii) Customer shall ensure that all such third parties comply with the terms of these Terms and Conditions; (iii) Customer shall not allow third parties to use the Service for their own benefit, resale, or to provide services to unrelated third parties. Customer must notify Nash in writing (via email being sufficient) of such grant of access. Nash may suspend or terminate third party access if such use violates these Terms and Conditions or poses a security, compliance, or operational risk to Nash.
I. Feedback. Customer may during the Agreement give feedback to Nash on the use, operation, and functionality of the Services, including information about operating results, known or suspected bugs, errors, or compatibility problems, suggested modifications, and user-desired features, functionality, or workflows (collectively, “Feedback”). Nash may use and incorporate such Feedback to improve the Services without restriction or payment to Customer. Nash will not identify Customer as the source of any such Feedback, and Nash acknowledges that all Feedback is provided on an “as is” basis and that Customer is not responsible for Nash’s use of any Feedback, including any results from such Feedback.
A. Definition. The term “Confidential Information” shall mean any business, technical or financial information or materials of a Party (“Disclosing Party”) provided to the other Party (“Receiving Party”) in connection with these Terms and Conditions that the Receiving Party knew or should reasonably know under the circumstances and/or by the nature of the information, is the confidential information of the Disclosing Party. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed to the Receiving Party in connection with these Terms and Conditions; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
B. Use and Disclosure. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with these Terms and Conditions; (ii) except subject to its compliance with this Section 8, not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms and Conditions, and prior to any such disclosure are bound by written confidentiality and restricted use obligations; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. The Receiving Party shall be responsible and liable for any breach of these Terms and Conditions by any party to which the Receiving Party gives access to Confidential Information, including its Representatives.
C. Compelled Disclosures. If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 8 and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.
EXCEPT AS STATED IN THESE TERMS AND CONDITIONS, THE NASH PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NASH EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND THAT ARE NOT INCLUDED IN THESE TERMS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT NASH IS NOT A DELIVERY PROVIDER AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OF ANY DELIVERY SERVICES, NOR RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, LOSS OF GOODS, ACTS OR OMISSIONS OF DELIVERY PROVIDERS OR RECIPIENTS, INCORRECT MERCHANT OR RECIPIENT INFORMATION, INCORRECT CUSTOMER INFORMATION, OR ANY CLAIMS, DAMAGES, PENALTIES OR OTHER LIABILITIES CAUSED BY OR RESULTING FROM ANY OF THE FOREGOING.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES MAY BE UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. CUSTOMER AGREES THAT NASH IS NOT RESPONSIBLE FOR ANY ISSUES OUTSIDE OF ITS REASONABLE CONTROL SUCH AS THIRD-PARTY TECHNICAL MALFUNCTION OR OTHER PROBLEMS OF ANY COMMUNICATIONS NETWORK OR SERVICE OR ANY OUTAGES OR OTHER FAILURES OR ERRORS OF ANY THIRD-PARTY SERVICES (SUCH AS HOSTING PROVIDERS) OR OTHER PROVIDERS OF INFORMATION TECHNOLOGY SERVICES WHO ARE NOT SUBCONTRACTORS OF NASH.
ADDITIONALLY, CUSTOMER ACKNOWLEDGES THAT THE AVAILABILITY OF SUCH DELIVERY PROVIDERS MAY VARY FROM TIME TO TIME, AND THAT NASH MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY DELIVERY PARTNER IDENTIFIED BY THE NASH PLATFORM WILL MEET THE REQUESTED DELIVERY REQUIREMENTS.
A. EXCLUSION OF LIABILITY. SUBJECT TO SECTION 10(C), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THESE TERMS AND CONDITIONS FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, OR FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. LIMITATION OF LIABILITY. SUBJECT TO SECTION 10(C), EACH PARTY’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE UNDER THESE TERMS AND CONDITIONS IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL INCIDENT GIVING RISE TO THE LIABILITY. WITHOUT LIMITING THE FOREGOING, NASH SHALL HAVE NO LIABILITY WITH RESPECT TO LATE OR DAMAGED DELIVERIES OR OTHER ACTS OF, OMISSIONS OF, OR FAILURES CAUSED BY DELIVERY PROVIDERS, INCLUDING ANY DAMAGE TO OR LOSS OF ANY GOODS CAUSED BY DELIVERY PROVIDERS.
C. NO LIMITATION. NOTHING IN THESE TERMS AND CONDITIONS EXCLUDES OR LIMITS THE LIABILITY OF A PARTY IN RESPECT OF: (I) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS AND CONDITIONS; (II) FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY OR ANY OF ITS PERSONNEL; (III) ANY LIABILITY FOR CUSTOMER TO PAY ANY UNDISPUTED AMOUNT ON ACCOUNT OF FEES WHICH ARE DUE AND PAYABLE UNDER THESE TERMS AND CONDITIONS; OR (IV) ANY LIABILITY OF A PARTY FOR ANY BREACH OF ITS CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS IN THESE TERMS AND CONDITIONS.
Each Party (the “Indemnifying Party”) agrees to indemnify the other Party and its affiliates, and its and their respective members, managers, partners, officers, directors and employees (each individually, the “Indemnified Party”, and collectively, the “Indemnified Parties”), from and against any and all third party claims and any costs, liabilities, damages, judgments and reasonable attorneys’ fees awarded to such third party (or agreed to in a settlement with such third party) (collectively, “Losses”) asserted against or incurred by the Indemnified Parties in connection with any third-party claim or demand to the extent arising out of to (a) fraud, gross negligence, bad faith or willful misconduct of the Indemnifying Party, (b) a violation of applicable laws by the Indemnifying Party, or (c) any claim or allegation that content, materials, trademark, or technology provided by the Indemnifying Party when used as permitted under these Terms and Conditions infringes or misappropriates intellectual property rights of a third party. Notwithstanding the foregoing, Nash will have no obligation under this section or otherwise with respect to any infringement claim based upon (x) any use of the Nash Platform not in accordance with these Terms and Conditions or as specified in the Documentation; (y) any use of the Nash Platform in combination with other products, equipment, software or data not supplied by Nash; or (z) any modification of the Nash Platform by any person other than Nash or its authorized agents. This section states Nash’s entire liability and Customer’s sole and exclusive remedy for the claims and actions described herein.
The Indemnifying Party will have the sole right to control the intake, defense, and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnified Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s), however, such counsel shall be retained at the Indemnified Party’s sole cost. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnified Party’s prior consent where the Indemnified Party will be required to make any admission or pay any form of settlement, and such consent will not be unreasonably delayed or withheld. The party seeking indemnification must provide the Indemnifying Party prompt notice of any claim, sole control over the defence of the claim and reasonably cooperate with the Indemnifying Party in the defence of the claim.
If any portion of the Services becomes, or in Nash’s opinion is likely to become, the subject of a claim of infringement, Nash may, at Nash’s option: (a) procure for Client the right to continue using the impacted Services; (b) replace the impacted Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that it becomes non-infringing; or (d) terminate these Terms and Conditions and refund any fees actually paid by Customer to Nash for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Services and Documentation.
Customer and Nash agree they are independent businesses whose relationship is governed by these Terms and Conditions. Nothing in these Terms and Conditions or the Parties’ relationship or related transactions shall create or be construed as creating an agency, fiduciary or joint venture relationship between Nash and Customer. These Terms and Conditions does not make either Party an agent, legal representative, joint venture, or partner of the other Party for any purpose.
Any dispute, claim or controversy arising out of or relating to these Terms and Conditions, including any breach, termination, enforcement, interpretation or validity thereof (a “Dispute”), shall be first addressed by the Parties privately and in good faith during a thirty (30) day private resolution period (the “Resolution Period”) before any formal or public proceedings may be initiated. If at the end of the Resolution Period the Parties have not reached a resolution, any Dispute shall be heard and determined by arbitration in San Francisco, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on an award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies from a court of appropriate jurisdiction in aid of arbitration or for any misuse or misappropriation of such Party’s intellectual property rights or Confidential Information. These Terms and Conditions and the rights of the Parties hereunder shall be governed by and construed in accordance with the laws of the State of California exclusive of conflict or choice of law rules. The Parties acknowledge and agree that they waive, to the fullest extent permitted under applicable law and unless provided for in these Terms and Conditions, any right that they may have to a trial by jury for a Dispute under this section. If the waiver of jury trial set forth in this section is not enforceable, then any claim or cause of action based upon or arising out of these Terms and Conditions shall be settled by judicial reference pursuant to California Code of Civil Procedure Section 638 et seq. before a referee sitting without a jury, such referee to be mutually acceptable to the Parties. The Parties acknowledge that these Terms and Conditions evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of these Terms and Conditions shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
A. Entire Agreement. These Terms and Conditions (together with any attachments) constitutes the entire agreement between the Parties relating to the subject matter hereof supersedes all prior agreements and communications of the Parties, oral or written, with respect to such subject matter.
B. Assignment. Neither Party may assign these Terms and Conditions in whole or in part without the other Party’s prior written consent and any attempted assignment without such consent shall be null and void, provided that the assignment in connection with a merger, acquisition, or other corporate change of control or sale of all or substantially all of such Party’s assets will not require the consent of the other Party. These Terms and Conditions is binding upon, and inures to the benefit of, the permitted successors and assigns of each Party, but shall not confer any rights or remedies upon any third party. Customer agrees that Nash may subcontract certain aspects of the Services to qualified third parties, provided that any such subcontracting arrangement will not relieve Nash of any of its obligations hereunder. For clarity, the Parties agree that Delivery Providers are not subcontractors for the purposes of this provision.
C. Publicity. Neither Party may use the Marks of the other Party in publicity, press releases, announcements, or marketing materials without the prior written consent of the other Party.
D. Waiver of Rights. Failure to enforce any right or provision of these Terms by either Party will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of the relevant Party. Except as expressly set forth in these Terms, the exercise by either Party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.E. Updates. Nash may make updates to these Terms and Conditions from time to time by posting notice of such changes at https://www.nash.ai/terms/us-online-terms. Unless otherwise posted or as required to comply with applicable law, the changes will become effective thirty (30) days after they are posted and unless Customer objects to such changes in writing to Nash.
F. Force Majeure. A Party does not breach these Terms and Conditions and is not liable to the other Party for a delay or failure to perform an obligation to the extent it results from a Force Majeure Event. The Party affected by the Force Majeure Event must notify the other Party of the Force Majeure Event as soon as reasonably practicable and must take all reasonable steps to limit the effects of the Force Majeure Event.
G. Notices. Any notice under these Terms and Conditions must be given in writing to the other Party. Notices shall be sent to the email or physical address set forth on the Order Form. Each Party may provide updated addresses to the other Party in writing. Notices will be deemed to have been given upon: (a) receipt (or when delivery is refused) if delivered in person or sent by recognized courier service, or (b) delivery is sent by email without a bounce back and such email is acknowledged by the other Party.
H. Export Laws. Customer shall not use, export, re-export, or transfer, directly or indirectly, the Services in violation of the U.S. export laws or regulations. Further, each Party shall comply with all relevant export laws and regulations of the U.S. (“Export Laws”) to assure that neither any deliverable, if any, nor any direct product thereof is (1) exported, directly or indirectly, in violation of Export Laws or (2) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation. Each Party represents that (i) it is not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, and (ii) it is not listed on any U.S. government list of prohibited or restricted parties.