Master Terms & Conditions

3.1 Usage Limitations.

Use of the services is subject to such limitations as are set forth in the order form and as are otherwise set forth herein.

3.2 Use Disclaimer.

Except as set forth in Section 7.1, your use of and access to the services and all contents associated therewith are at your sole risk. To the extent NextKick requires your location to each individually accept this agreement and any such location does not so agree in the manner prescribed by NextKick, then NextKick may immediately suspend use of the services for any location unless and until such acceptance is obtained to NextKick satisfaction. Failure of a location to so agree shall not limit or reduce your financial liability to NextKick for the fees set forth in the applicable order form which shall not be reduced.

3.3 Provision of Services.

NextKick shall make the services available to you in accordance with (i) the Service Levels and Support Terms, set forth in Exhibit "A" and Exhibit "B" respectively, (ii) this agreement, and (iii) the relevant order forms during the service term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by NextKick except as provided herein regarding potential future functionality or features. The service is provided in U.S. English only.

3.4 Location Subscriptions.

Unless otherwise specified in the applicable order form, (i) the services are purchased as per location subscriptions and may be accessed by no more than the specified number of locations in the order form, and (ii) additional location subscriptions may be added during the applicable service term by executing a new order form for such purpose as prescribed by NextKick. Location subscriptions are for designated locations only and cannot be shared or used by more than one location unless otherwise specifically permitted in writing by NextKick.

3.5 Service Availability and Access.

The service level terms set forth in Exhibit "A" are hereby incorporated into this agreement by reference as if fully set forth at length herein. While NextKick intends that the services should be available in accordance with the service level terms set forth in Exhibit "A," it is possible that on occasion the services may be unavailable to permit maintenance or other development activity to take place. In such an event, NextKick will use reasonable efforts to provide advance written notice to you. NextKick has the right in its sole discretion to block access to any of the services with or without notice if and for so long as NextKick deems your access to or use of the services is damaging to NextKick reputation, the functioning of the services, or prohibited under applicable law.

3.6 Help Desk.

In the case of technical problems, you must make all reasonable efforts to investigate and diagnose problems before contacting NextKick. In no event shall you make any modifications, deletions, or add-ons to the services and their associated software. If you still need technical help after making such reasonable effort, you may consult the troubleshooting and support materials provided online by NextKick on the website or chat with NextKick Support team once you log into NextKick and find the chat icon on the lower right side of your NextKick Dashboard.

3.7 No Development.

Each party acknowledges and agrees that there shall be no development of technology, content, media, or other intellectual property by either party for the other party under this agreement and none of the services shall be deemed "work made for hire." Any development activities relating to any technology, content, media, or other intellectual property must be the subject of a separate written agreement between NextKick and you prior to the commencement of any such activities.

3.8 Pilot Services.

If NextKick provides the services to you during a pilot period, NextKick will make one or more services available to you until the earlier of the end of the pilot period or the start date of any commercial (i.e., non-pilot) subscriptions ordered by you for such services. Notwithstanding any provision herein to the contrary, during any pilot period the services are unsupported and are provided "as-is" without any warranties or indemnity whatsoever, and NextKick will have no liability for any harm or damage arising out of or in connection with the services during the pilot period. Any data you enter during a pilot period will be lost if you do not purchase a commercial subscription to the services at the end of the pilot period.

4.1 Reservation of Rights by NextKick.

Subject to the limited rights expressly granted hereunder, NextKick and its licensors and third-party providers each reserve all of NextKick and NextKick licensors, right, title, and interest in and to the services and implementation services (as defined in the order form) and related products, including all of NextKick and NextKick licensors, related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein and any rights not so expressly granted are hereby reserved.

4.2 Your Data.

NextKick respects your rights in and to all content created and/or stored by you and/or your staff. As between you and NextKick, you own your data. You hereby authorize NextKick the right to copy, distribute, display, and perform, publish, prepare derivative works of, and otherwise use your data for the purposes of providing you the services (including improving and developing the services during the service term) and for no other purpose. You represent, warrant, and covenant to NextKick that you have all rights necessary to grant the licenses in this section and that the provision of your data through and in connection with the services does not and will not violate any applicable laws or rights of any third party. All right, title, and interest in any data or information collected by NextKick independently and without access to, reference to, or use of any of your data, including without limitation any data or information NextKick obtains about end users through the website and/or any marketing landing pages (whether the same as your data or otherwise) will be solely owned by NextKick (collectively "NextKick Data"). NextKick will retain your data in accordance with NextKick public-facing privacy disclosures (including privacy policy as amended from time to time) or as otherwise agreed upon in writing.

4.3 User Content.

You and your staff may transmit or publish content created by you and/or your staff using any of the services or otherwise. However, you shall be solely responsible to NextKick for such content and the consequences of its transmission or publication. You agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit such content for any purpose other than in connection with the performance of your obligations hereunder in accordance with this agreement without the express written consent of the person who owns the rights to such content. By making any copyrighted/copyrightable content available on any of the services, you affirm that you have the consent, authorization, or permission, as the case may be, from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that NextKick will have the right to block access to or remove such content made available by you if NextKick receives complaints concerning any illegality or infringement of third-party rights in such content. You shall indemnify NextKick for any and all damage resulting from such integration between non-NextKick application and NextKick products. By using any of the services and transmitting or publishing any content using the services, you expressly consent to determination of questions of illegality or infringement of third-party rights in such content by the agent designated by NextKick for this purpose. Notwithstanding anything to the contrary, NextKick shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the services and related systems and technologies (specifically excluding information concerning your data and data derived therefrom) by you and your staff and NextKick will be free (during and after the service term) to (i) use such information and data to improve and enhance the services and for other development, diagnostic, and corrective purposes in connection with the services and NextKick other offerings and (ii) disclose such data solely in aggregate or other de-identified form in connection with NextKick business.

4.4 Third-party Applications / Third-party Links and Your Data.

You understand and agree that you are responsible to back-up your data as appropriate and NextKick shall not be responsible for any disclosure, modification, deletion, or corruption of your data resulting from any use of the services by a non-NextKick application or by a third-party application provider not engaged by NextKick. The services may contain external links to other websites. These links are provided for information purposes only. NextKick does not endorse any advice, goods, or services offered by third parties. NextKick has no control over the content of third-party sites and is not responsible for any information or content contained on these sites nor is NextKick responsible for the privacy policy of those sites and the information they may gather expressly or automatically. Accordingly, NextKick expressly disclaims any responsibility for the content, the accuracy of the information, the quality of products or services provided by or advertised on, and/or software downloaded from these third-party websites.

4.5 Usage Data Information.

Notwithstanding the foregoing, NextKick maintains exclusive ownership of usage data and hereby grants you access to the usage data during the service term to utilize data capture, syndication, and analysis tools and other similar tools to track, extract, compile, synthesize, aggregate, and analyze any usage data. You may not, however, sell or license access to the usage data to a third party. Furthermore, NextKick shall have the right during the service term and any renewal or extension thereof to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the services and related systems and technologies (excluding information concerning your data and data derived therefrom), and NextKick will be free (during and after the service term) to (i) use such information and data to improve and enhance the services and for other development, diagnostic, and corrective purposes in connection with the services and other NextKick offerings and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

4.6 License to Use Feedback.

You grant to NextKick a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into NextKick services any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or your staff relating to the services.

4.7 License to Customer Marks.

You hereby grant NextKick a license to use any and all of your names and trademarks ("Customer Marks") to (i) perform the services hereunder, (ii) to promote NextKick services to third parties and to the public, and (iii) to develop and host the services for you. NextKick acknowledges and agrees that all use of the customer marks by NextKick shall accrue to the benefit of the customer.

4.8 Cardholder Data.

You are solely responsible for any liability resulting from your transmission, handling, and/or storage of cardholder data. You agree that you will comply with all applicable laws and regulations relating to the handling and protection of cardholder data, including PCI DSS, anytime the services are used to process credit cards. NextKick does not store credit card numbers or CVV numbers in our database or software. Upon entering payment information, NextKick requests a token to be created by the payment gateway for all future charges. This token is only valid for your specific merchant account. NextKick cannot export credit card information as we never store that data.

4.9 Unauthorized Disclosure.

If either party believes that there has been a disclosure of your data in a manner not authorized under this agreement, such party will promptly notify the other party, providing such details concerning the disclosure as the party who did not cause or allow the disclosure may request, and shall cooperate with the non-disclosing party, its regulators, and law enforcement to assist in regaining possession of your data and prevent its further unauthorized use, and take all commercially reasonable remedial actions as may be requested or required by the non-disclosing party to prevent other or further incidents. Additionally, each party will reasonably assist the other party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure. If a disclosure under this section arises from one party breach of its obligations under this agreement, such breaching party shall bear the reasonable cost, if any, of providing such notification to the affected individuals.

4.10 Personally Identifiable Information.

Privacy Policy governs how NextKick collects and uses PII that is submitted through the services. If you access or use the services, you represent that you have read and accept the terms of NextKick privacy policy as amended from time to time.

4.11 Data Disputes.

Disputes between you and your end users are your responsibility. You are solely responsible for resolving disputes regarding ownership of 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 NextKick has no obligation whatsoever to resolve or intervene in such disputes.

4.12 Artificial Intelligence Features.

Certain services may include features powered by artificial intelligence, machine learning, or similar technologies (collectively, "AI Features").

(a) Provision of AI Features. NextKick may process your data, including customer data, as necessary to provide AI Features to you and to generate outputs in response to your inputs.

(b) Model Training and Improvement. NextKick shall not use your data to train, fine-tune, or otherwise improve any artificial intelligence or machine learning models except: (i) in de-identified, anonymized, or aggregated form that does not identify you, your business, or any end user; or (ii) with your prior express consent. For the avoidance of doubt, NextKick shall not use any personally identifiable information of end users who are minors to train, fine-tune, or improve any such models under any circumstances.

(c) Outputs. As between you and NextKick, you own the outputs generated by AI Features in response to your inputs, subject to NextKick's underlying rights in the services and AI Features themselves. Outputs are generated by automated systems, may contain errors or inaccuracies, and are provided for informational purposes only. You are solely responsible for reviewing outputs and for any decision or action taken in reliance on them, including without limitation any decision relating to student instruction, safety, billing, or business operations.

(d) Third-Party AI Providers. NextKick may use third-party AI service providers to deliver AI Features, provided such providers are contractually bound to confidentiality and data protection obligations no less protective than those set forth in this agreement and are prohibited from using your data to train their own models except as permitted under subsection (b) above.

4.13 Student and Children's Data.

(a) Acknowledgment. The parties acknowledge that end users of the services may include students, including students under the age of thirteen (13), and that your data may include personally identifiable information of such students ("Student Data").

(b) FERPA. To the extent you are an educational agency or institution subject to the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g ("FERPA"), or you receive education records (as defined in FERPA) from such an agency or institution, NextKick shall be considered a "school official" with a legitimate educational interest in Student Data, performing services for which you would otherwise use your own employees, and shall (i) use Student Data solely to provide the services under this agreement, (ii) remain under your direct control with respect to the use and maintenance of education records, and (iii) not disclose Student Data to any third party except as permitted under this agreement or as required by law.

(c) COPPA. To the extent the Children's Online Privacy Protection Act, 15 U.S.C. §§ 6501-6506 ("COPPA"), applies to the collection of personal information from children under thirteen (13) through the services: (i) you represent and warrant that you have obtained, or will obtain prior to entering any such child's information into the services, all necessary verifiable parental consents for the collection, use, and disclosure of such child's personal information as contemplated by this agreement; (ii) NextKick shall collect, use, and disclose such information solely to provide the services and for no other purpose, and shall not use such information for marketing, advertising, or profiling directed at children; and (iii) NextKick shall maintain reasonable procedures to protect the confidentiality, security, and integrity of such information.

(d) Deletion. Upon your written request, or upon the request of a parent or legal guardian communicated through you, NextKick will delete or de-identify the Student Data of an identified end user within thirty (30) days, except to the extent retention is required by applicable law.

(e) No Sale. NextKick shall not sell Student Data or use Student Data for targeted advertising.

5.1 Customer Representations and Covenants.

As a condition of this agreement, when accessing and using the services, you must:

1. not transmit or input into the services (including into the website) any files that may damage any other person computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material that violates privacy rights and/or intellectual property rights);
2. not transmit or conduct business in a manner which violates any privacy rights (including without limitation the Telephone Consumer Protection Act of 1991 (the "TCPA") adopted rules including those set forth in 47 C.F.R. § 64.1200 (together with the TCPA, the "TCPA Rules," as the same may be amended from time to time) prohibiting the initiation of telephone calls (other than a call made for emergency purposes or made with the prior express consent of the called party) using automatic telephone dialing systems or an artificial or prerecorded voice to telephone numbers assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call (referred to herein as "TCPA Prohibited Conduct"));
3. not attempt to modify, copy, adapt, reproduce, disassemble, decompile, or reverse engineer any computer programs used to deliver the services or to operate the website except as is strictly necessary to use either of them for normal operation;
4. only use the services for your own lawful internal business purposes in accordance with this agreement and any other NextKick policies as may be adopted from time to time;
5. ensure that all persons who access the services comply with and accept all terms of this agreement that apply to you;
6. ensure that you are authorized to act on behalf of your locations in providing the service to end-users;
7. not attempt to undermine the security or integrity of NextKick computing systems or networks or, where the services are hosted by a third-party, that third-party computing systems and networks;
8. not use or misuse the services in any way which may impair the functionality of the services or other systems used to deliver the services or impair the ability of any other user to use the services; and
9. not attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the computer system on which the services are hosted.

5.2 General Customer Responsibilities.

You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the services, including without limitation modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively "Equipment"). You are, and at all times shall remain, in full compliance with all regulations and applicable laws, including without limitation those concerning privacy, telemarketing, and otherwise relating to your use of the services. You may enable access of the service for use only by authorized parties solely for your internal business purposes in accordance with this agreement and not for the benefit of any third parties. You shall (a) have sole responsibility for the accuracy, quality, and legality of all your data, and (b) prevent unauthorized access to or use of the service and notify NextKick promptly of any such unauthorized access or use.

5.3 Federal Regulations.

You may not remove or export from the United States or allow the export or re-export of the services or anything related thereto, or any direct product thereof, in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in Federal Acquisition Regulation ("FAR") section 2.101, the services and documentation are "commercial items," and according to Defense Federal Acquisition Regulation ("DFAR") section 252.227-7014(a)(1) and (5), are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this agreement and will be prohibited except to the extent expressly permitted by the terms of this agreement.

5.4 NextKick Obligations.

NextKick shall (a) provide applicable basic support for the services to you at no additional charge as set forth in Exhibit "B" and such additional support as you may purchase from NextKick from time to time, (b) use commercially reasonable efforts to make the services available 24 hours a day, 7 days a week, except for (i) planned downtime (of which NextKick will provide reasonable notice to you in advance through the website or via e-mail) or (ii) any unavailability caused by circumstances beyond NextKick reasonable control, including without limitation acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving NextKick employees), internet service provider failures or delays, or denial of service attacks (collectively "Force Majeure"), and shall provide the services only in accordance with applicable laws and government regulations.

5.5 Non-NextKick Providers.

NextKick or third parties may make available third-party products or services, including, for example, non-NextKick applications and implementation and other consulting services. Any acquisition by you of such products or services and any exchange of data between you and any non-NextKick provider, product, or service is solely between you and the applicable non-NextKick provider. NextKick does not warrant or support non-NextKick applications or other non-NextKick products or services, whether or not they are designated by NextKick as "certified" or otherwise, unless expressly provided otherwise in an order form.

5.6 Non-NextKick Applications and Your Data.

If you choose to use a non-NextKick application with the service, you grant NextKick permission to allow the non-NextKick application and its provider to access your data as required for the interoperation of that non-NextKick application with the service. NextKick is not responsible for any disclosure, modification, or deletion of your data resulting from access by such non-NextKick application or its provider. You shall indemnify NextKick for any and all damage resulting from such integration between non-NextKick application and NextKick products.

5.7 Integration with Non-NextKick Applications.

The services may contain features designed to interoperate with non-NextKick applications. To use such features, you may be required to obtain access to such non-NextKick applications from their providers and may be required to grant NextKick access to your account(s) on such non-NextKick applications. NextKick cannot guarantee the continued availability of such service features and may cease providing them without entitling you to any refund, credit, or other compensation if, for example and without limitation, the provider of a non-NextKick application ceases to make the non-NextKick application available for interoperation with the corresponding service features in a manner acceptable to NextKick.

6.1 Generally.

In consideration for the licenses and rights granted under this agreement, you shall pay all fees specified in all order forms for services and implementation services (together "fees") hereunder using a designated payment processor. Except as otherwise specified herein or in an order form or upgrade order form (i) payment obligations are non-cancellable and fees paid are non-refundable, and (ii) quantities purchased cannot be decreased during the relevant service term. By entering into this agreement, you acknowledge that your subscription to the services has recurring payments and you accept responsibility for all recurring charges prior to cancellation or termination of this agreement and authorize NextKick to levy such charges. NextKick reserves the right to modify and increase fees and to institute new charges and fees at any time upon thirty (30) days prior written notice to you (which may be sent by e-mail). All fees are set in U.S. Dollars.

6.2 Overdue Charges.

If any charges are not received from you by the due date and you fail to pay such charges to NextKick before the expiration of ten (10) business days following NextKick issuance of written notice to you, then in NextKick discretion (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) NextKick may condition future subscription renewals and order forms on shorter payment terms.

6.3 Upgrades.

If you choose to upgrade your service or increase the number of locations authorized to access and use a service during your service term (an "account upgrade"), any incremental subscription fees associated with such account upgrade will be prorated over the remaining period of your then-current service term, charged to your account, and due and payable upon implementation of such subscription upgrade. In any future service term, your fees will reflect any such account upgrades.

6.4 Suspension of Services and Acceleration.

If any amount owing by you under this agreement is 30 or more days overdue and you fail to pay such amounts before the expiration of five (5) business days following NextKick issuance of written notice to you, NextKick may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under such agreement (including any interest for late payments as specified above) so that all such obligations become immediately due and payable and suspend your access to the services until such amounts are paid in full. NextKick will give you at least five (5) business days prior written notice that your account is overdue in accordance with Section 12.2 (Notices) before suspending your access to the services pursuant to this Section 6.4.

6.5 Taxes.

Unless otherwise stated, NextKick fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively "Taxes"). You are responsible for paying all taxes associated with your purchases hereunder. If NextKick has the legal obligation to pay or collect taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you on demand unless you provide NextKick with a valid tax exemption certificate authorized by the appropriate taxing authority.

6.6 Payment Disputes.

NextKick will not exercise its rights under Section 6.2 (Overdue Charges) or 6.4 (Suspension of Services and Acceleration) above if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

6.7 Refunds or Credits.

For the avoidance of any doubt, no refunds or credits for fees or payments will be provided to you if you elect to downgrade your service plan. Downgrading your service plan may cause loss of content, features, or capacity of the service as available to you under your account and NextKick does not accept any liability for such loss.

7.1 NextKick Warranties.

NextKick warrants only that (i) NextKick has validly entered into this agreement and has the legal power to do so, and (ii) NextKick will use commercially reasonable efforts consistent with industry standards to maintain the services in a manner which minimizes errors and interruptions and shall perform the implementation services in a professional and workmanlike manner. The services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance either by NextKick or by third-party providers or because of other causes beyond NextKick reasonable control, but NextKick shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. NextKick does not represent or endorse the accuracy or reliability of any opinion, advice, or statement made through the services, nor does NextKick assume any liability for claims concerning unsolicited fax, e-mail, or voice messages sent by you or others under your account or control through the services (including those that violate the privacy rights of any person).

7.2 Warranty Disclaimer.

Except as set forth in Section 7.1 and 7.5 and to the maximum extent permitted by law, NextKick does not warrant that the services will be uninterrupted or error-free, nor does it make any express or implied representations or warranties with respect to the services or their condition, merchantability, fitness for any particular purpose, or use by customer, except as expressly set forth in this section, the services and implementation services are provided "as is." NextKick furnishes the above limited warranties in lieu of all other warranties expressed or implied, including the warranties of merchantability and fitness for a particular purpose. Except as set forth in Section 7.1 and 7.5, NextKick will not be liable for any loss or damage caused by (i) a distributed denial-of-service attack, (ii) viruses or other technologically harmful material that may infect your computer equipment or computer programs, or (iii) your data or other proprietary material resulting from your use of the services.

7.3 Mutual Representations.

Each party represents and warrants (i) that such party is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation, (ii) that such party has the legal right and authority to enter into and perform its obligations under this agreement, (iii) that the execution and performance of this agreement will not conflict with or violate any provision of any law having applicability to such party, and (iv) that this agreement when executed and delivered will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.

7.4 Customer Indemnity Obligations.

You agree to indemnify, defend, and hold harmless NextKick from and against any and all third-party claims alleged or asserted against any of them and all related charges, damages, and expenses (including but not limited to reasonable attorneys, fees and costs of investigations, experts, and defense) arising from or relating to: (a) any actual or alleged breach by you of any provisions of this agreement, (b) any access to or use of the services by you, (c) any actual or alleged violation by you of the intellectual property, privacy, or other rights of a third party, and (d) any dispute between you and another party regarding ownership of or access to your data, (e) your violation of privacy rights and regulations, including without limitation the TSR and TCPA respectively, and (f) the infringement of any intellectual property rights of a third-party by you.

7.5 NextKick Indemnity Obligations.

NextKick will indemnify and hold you harmless from and against any claim against you by reason of your use of a service as permitted hereunder, brought by a third party alleging that such service infringes or misappropriates a third party valid patent, copyright, trademark, or trade secret (an "IP Claim"). NextKick shall, at its own expense, defend such IP claim and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by NextKick for such defense, provided that (a) you promptly notify NextKick of the threat or notice of such IP claim, (b) NextKick will have the sole and exclusive control and authority to select defense attorneys and defend and/or settle any such IP claim, and (c) you fully cooperate with NextKick in connection therewith. If use of a service by you or your end-users has become, or in NextKick sole discretion is likely to become, the subject of any such IP claim, NextKick may, at NextKick option and expense, (i) procure for you the right to continue using the service(s) as set forth hereunder, (ii) replace or modify a service to make it non-infringing, or (iii) if options (i) or (ii) are not commercially reasonable or practicable, as determined by NextKick, terminate your subscription to the service(s) and repay you on a pro-rata basis any fees previously paid to NextKick for the corresponding unused portion of your service term for such service(s). NextKick will have no liability or obligation under this section with respect to any IP claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions, or specifications provided by you, (y) modification of the service(s) by anyone other than NextKick, or (z) the combination, operation, or use of the service(s) with other hardware or software where a service would not by itself be infringing. The provisions of this section state the sole, exclusive, and entire liability of NextKick to you and constitute your sole remedy with respect to an IP claim brought by reason of access to or use of a service by you and your end-users.

7.6 Exclusive Remedy.

This section states the indemnifying party sole liability to, and the indemnified party exclusive remedy against, the other party for any types of claims described in this section.

9.2 Termination.

9.3 Surviving Provisions.

All provisions in this agreement that should be deemed to survive termination in order to effectuate the intent of the parties shall be deemed to so survive. Without limitation, the sections titled "Payment and Fees," "Confidentiality Obligations," "Warranty & Disclaimers," "Customer Indemnity Obligations," "NextKick Indemnity Obligations," "Limitation of Liability," "Payment upon Termination," "Surviving Provisions," and "Miscellaneous" will survive any termination or expiration of this agreement.

10.1 Generally.

Except in connection with claims for indemnification pursuant to Section 7.4 of this agreement, under no other circumstances and under no legal theory (whether in contract, tort, negligence, or otherwise) will either party to this agreement, or their affiliates, officers, directors, employees, agents, service providers, suppliers, or licensors be liable to the other party or any third party for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential, or punitive loss or damages, or any other loss or damages incurred by such party or third party in connection with this agreement, the services, or consulting services, regardless of whether such party has been advised of the possibility of or could have foreseen such damages.

10.2 NextKick Limitation Amounts.

In no event shall the aggregate liability of NextKick together with all of its affiliates arising out of or related to this agreement exceed the fees, including subscription charges, paid by you hereunder for the services giving rise to the liability in the six (6) months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability but will not limit your payment obligations under the "Fees and Payment" section above. You acknowledge and agree that the essential purpose of this section is to allocate the risks under this agreement between the parties and limit potential liability given the subscription charges, which would have been substantially higher if NextKick were to assume any further liability other than as set forth herein. You acknowledge that NextKick has relied on these limitations in determining whether to provide you the rights to access and use the services provided for in this agreement.

10.3 Exceptions.

Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. In these jurisdictions, NextKick liability will be limited to the greatest extent permitted by law.

10.4 Rights only against NextKick.

Any claims or damages that you may have against NextKick shall only be enforceable against NextKick and not against any other entity or against NextKick or such other entity officers, directors, representatives, or agents.

11.1 Overview.

NextKick may provide eStore functionality that allows users to make purchases through affiliated schools. This functionality includes but is not limited to product listings, payment processing, and order management.

11.2 Affiliated Schools.

All purchases made through the eStore services provided by NextKick are processed by the affiliated schools. The affiliated schools are independent entities that are responsible for the sale and delivery of products.

11.3 No Refund or Exchange Responsibility.

NextKick does not have any responsibility for refunds, exchanges, or any issues arising from purchases made through the affiliated schools. Users must contact the affiliated schools directly for any inquiries or disputes regarding their purchases.

11.4 User Acknowledgment.

By using the eStore services, users acknowledge and agree that NextKick is not liable for any transactions, disputes, or issues related to the purchases made through the affiliated schools. Users agree to resolve any issues directly with the affiliated school from which the purchase was made.

11.5 Limitation of Liability.

To the maximum extent permitted by applicable law, NextKick shall not be liable for any direct, indirect, incidental, special, consequential, or punitive damages or any other damages of any kind arising out of or related to eStore transactions conducted through affiliated schools.

12.1 Entire Agreement.

This agreement, together with any order forms, the API terms and conditions (if applicable), and any terms and policies that are incorporated into this agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and NextKick with respect to the subject matter hereof. In the event of a conflict between an order form and this agreement, the order form will control. Except as provided herein, this agreement supersedes and replaces all other prior and contemporaneous agreements, proposals, or representations, written or oral, between NextKick and you.

12.2 Notices.

Any notices provided by NextKick under this agreement may be delivered to you within the services platform or to the email address(es) NextKick has on file for your account. You hereby consent to receive notice from NextKick 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 NextKick under this agreement must be delivered via first class registered U.S. mail or reputable national overnight courier (e.g., FedEx, UPS, etc.) to NextKick, Attn: NextKick Customer Support, 1 Penn Plaza, Suite 1423, New York, NY 10119.

12.3 Force Majeure.

Except for customer obligations to pay money under this agreement, neither party shall be liable to the other for any delay or failure to perform any obligation under this agreement if the delay or failure is due to unforeseen events which occur after the signing of this agreement and which are beyond the control of such party, such as a war, act of terrorism, riot, natural disaster, or failure or diminishment of power or telecommunications or data networks or services, provided that such failure or diminishment is not solely attributable to NextKick, its affiliates, employees, contractors, or representatives, provided that the party whose performance or obligation is affected by any such event gives the other party written notice thereof as soon as possible following the occurrence of such event.

12.4 No Third-party Beneficiaries.

Nothing in this agreement, whether express or implied, will confer upon any person or entity other than the parties and their successors and permitted assigns any legal or equitable right whatsoever to enforce any provision of this agreement.

12.5 Independent Contractors.

The parties are independent contractors. Except as otherwise expressly provided herein, nothing herein creates any joint venture, partnership, agency, employment, fiduciary, or other relationship among the parties, and no party is authorized to make contracts or commitments in the name of or on behalf of any other without such party prior written approval.

12.6 Amendments, Modifications.

NextKick may, in its sole discretion, make changes to this agreement from time to time. Any changes NextKick makes will become effective when a modified version of the agreement is posted to the website or NextKick platform, and NextKick agrees the changes will not be retroactive. If NextKick makes any material changes to the agreement, NextKick will make commercially reasonable efforts to notify you within the NextKick platform or by sending you an email. If you continue using the services after any changes (or if applicable, after NextKick has indicated to you in writing that such changes will become effective), it shall mean that you have accepted them. If you do not agree to any changes, you must stop using the services immediately and you can terminate your account by emailing [email protected], provided that such termination shall not terminate this agreement or otherwise release you from your obligations under this agreement. It is your obligation to ensure that you read, understand, and agree to the latest version of this agreement that has been posted on our website and/or within the NextKick platform. The legend at the top of the agreement indicates when it was last changed and the current version.

12.7 Assignment, Delegation.

No party may assign any of its rights hereunder nor delegate any of its duties hereunder without the prior written consent of the other party, except that: (a) any party shall be entitled to transfer its interests to a third-party with which such party is merged or which acquires all or substantially all of the assets or capital stock of such party, and (b) you may assign your rights and obligations under this agreement to an affiliate that NextKick has approved in advance in writing. For avoidance of doubt, all uses of the word "you" and "your" in this agreement shall include your NextKick-approved affiliate as applicable.

12.8 Severability.

If any provision of this agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this agreement shall otherwise remain in effect.

12.9 Waiver.

No waiver under this agreement shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by any party in exercising any right hereunder shall not be deemed a waiver of that right.

12.10 Governing Law.

This agreement shall be governed by and interpreted in accordance with the laws of the State of New Jersey without regard to its principles regarding conflicts of law and without regard to the United Nations Convention on the International Sale of Goods. Subject to Section 12.15 (Dispute Resolution; Binding Arbitration), each party hereby irrevocably submits to and waives any objection to the exclusive personal jurisdiction of the state and federal courts located in the State of New Jersey, and the jurisdiction and venue for any actions not subject to arbitration under Section 12.15 shall be the state and United States federal courts located in Essex County, New Jersey, and both parties hereby submit to the personal jurisdiction of such courts.

12.11 Counterparts.

This agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and all of which when taken together shall constitute one agreement.

12.12 Headings.

The headings in this agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this agreement.

12.13 Survival.

The provisions of this agreement which by their terms require performance after the termination of this agreement or have application to events that may occur after the termination of this agreement shall survive the termination or expiration of this agreement.

12.14 Changes.

NextKick reserves the right at any time to modify, edit, adapt, and update the service or to discontinue any NextKick products, including any part of the services, with or without notice. You agree that NextKick will not be liable to you or to any end user or third party for any such discontinuance, modification, editing, adaptation, or updating of the service or of the NextKick platform. You are free in your discretion to download your user content at any time to provide backup. Your failure to do so will not create any liability for NextKick hereunder. By continuing to access or use the services after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the services.

12.15 Dispute Resolution; Binding Arbitration; Class Action Waiver.

(a) Informal Resolution. Before initiating any arbitration or court proceeding, the party asserting a dispute shall first provide the other party with written notice describing the nature and basis of the dispute and the relief sought, and the parties shall attempt in good faith to resolve the dispute within thirty (30) days of such notice.

(b) Binding Arbitration. Except as set forth in subsection (d) below, any dispute, claim, or controversy arising out of or relating to this agreement or the services, including the breach, termination, enforcement, interpretation, or validity thereof, shall be resolved by final and binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted by a single arbitrator, shall be seated in the State of New Jersey (or, at your election, may be conducted by videoconference or telephone), and shall be conducted in English. The arbitrator shall apply the governing law set forth in Section 12.10. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

(c) Class Action Waiver. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. The arbitrator may not consolidate more than one party's claims and may not otherwise preside over any form of a representative or class proceeding. If this class action waiver is found to be unenforceable as to a particular claim, then that claim (and only that claim) shall be severed from arbitration and may be brought in court, and all remaining claims shall proceed in arbitration.

(d) Exceptions. Notwithstanding the foregoing, (i) either party may bring an individual action in small claims court for disputes within that court's jurisdiction, (ii) either party may seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's intellectual property rights or confidentiality obligations, and (iii) nothing in this section limits NextKick's right to suspend services or pursue collection of undisputed fees.

(e) Fees. Payment of all filing, administration, and arbitrator fees shall be governed by the applicable AAA rules. Each party shall bear its own attorneys' fees and costs unless the arbitrator determines that a claim or defense was frivolous or brought in bad faith, in which case the arbitrator may award reasonable attorneys' fees to the prevailing party.

(f) Survival. This Section 12.15 shall survive any termination or expiration of this agreement.