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This Master Customer Agreement (“Agreement”) is between Nexus Investing Inc. (“Nexus”) and the customer identified in the applicable order form (“Customer”) and is effective as of the date of the last signature in the applicable order form (“Effective Date”). This Agreement allows Customer and its Affiliates to purchase access to certain of Nexus’s services by placing one or more Orders. Certain capitalized terms are defined in Exhibit A and others are defined contextually in this Agreement.
Nexus provides tools and services aimed at supporting financial literacy for college athletes and similar individuals in the NIL era, such as Nexus’s proprietary curriculum (the “Nexus Curriculum”), AI-adaptive exam (the “Nexus Exam”), and certification (the “Nexus Certification” and collectively with the Nexus Curriculum and Nexus Exam, the “Nexus Program”). Customer desires to obtain access to and use of the Services for Customer and its Athletes in accordance with the terms set forth in this Agreement.
2.1.Ordering Process. Services are purchased as stated in an Order in the manner established for each of the Services. Each Order will include the specific Services ordered by Customer, including, as applicable, the purchased Services, Athlete count, and the time period for which such Order applies.
2.2.Permitted Use. During a Subscription Term, subject to Customer’s compliance with the terms of this Agreement, Customer may access and use the Services only for its internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in an Order.
2.3.Scope. This Agreement governs Customer’s use of the Service features made available by Nexus to its organizational customers and their administrative users. Use of the Service features made available by Nexus to individual athlete participants, including Athletes who receive access to the Services through Customer, are governed by the Nexus terms of service available at https://www.nexusnil.ai/terms and privacy policy available at https://www.nexusnil.ai/privacy.
2.4.Users. Only Users, using the mechanisms designated by Nexus (“Log-in Credentials”), may access and use the Services. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement, the Nexus terms of service, and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Nexus’s breach of this Agreement). Customer will promptly notify Nexus if it becomes aware of any compromise of any Log-in Credentials. Nexus may Process Log-in Credentials in connection with Nexus’s provision of the Services or for Nexus’s internal business purposes.
2.5.Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense a Service to a third party (other than Users); (b) use a Service on behalf of, or to provide any product or service to, third parties; (c) use a Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to a Service, except to the extent expressly permitted by Law (and then only with prior notice to Nexus); (e) modify or create derivative works of a Service or copy any element of a Service; (f) remove or obscure any proprietary notices in a Service; (g) publish benchmarks or performance information about a Service; (h) interfere with the operation of a Service, circumvent any access restrictions, or conduct any security or vulnerability test of a Service; (i) transmit any viruses or other harmful materials to a Service; (j) take any action that risks harm to others or to the security, availability, or integrity of a Service; or (k) access or use a Service in a manner that violates any Law. Additionally, Customer must not use a Service for High Risk Activities. Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Nexus is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Nexus has no liability for use of a Service for High Risk Activities.
Unless stated otherwise in an Order, Nexus will make Updates to Services as Nexus makes them available to its customers of the applicable Services generally. Customer’s purchase of access to Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Nexus regarding future functionality or features of the Services. From time to time, Nexus, in its sole discretion, may make available Upgrades under additional or different terms. Nothing in this Agreement obligates Nexus to make Upgrades available to Customer as part of the Services or otherwise unless specifically included in an Order.
4.1.Use of Customer Data. Customer grants Nexus the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide any Services, and Professional Services; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; (d) train and improve our Services, curriculum, model, and algorithms for Customer and its Athletes, such as to dynamically update curriculum and exams based on Athlete progress and otherwise customize each Athlete’s experience; and (e) as otherwise required by Laws or as agreed to in writing between the parties.
4.2.Usage Data; Aggregated Data. Nexus may Process Usage Data and Aggregated Data for its business purposes, such as to: (a) track use of Services for billing purposes; (b) provide support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) to improve Services, its other products and services, and to develop new products and services; (f) report engagement metrics and information regarding Service activity levels to its Referral Partners; and (g) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.
5.1.Customer Data Requirements. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws and the AUP when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary (a) for Nexus to Process Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data and (b) for Nexus to provide Services to Athletes in accordance with the terms of this Agreement and the Nexus terms of service set forth at https://www.nexusnil.ai/terms.
5.2.Athlete Data on Transfer. Customer acknowledges and agrees that an Athlete’s profile, activity, and any associated data within the Service specifically about such Athlete (collectively, “Athlete Data”), whether provided by or on behalf of Customer, its Users, or the applicable Athlete, is tied to that specific Athlete’s account such that the Athlete Data may remain accessible by or on behalf of such Athlete after this Agreement is terminated or expires. Accordingly, if an Athlete ceases to be affiliated with Customer, Customer acknowledges and agrees that Nexus may transfer Athlete Data to the Athlete’s new Service account, which may be with a different organization.
5.3. AI Usage Limits. Certain features of the Service use artificial intelligence functionality (“AI Features”). Customer’s use of the AI Features is subject to usage limits as specified in the applicable Order, or if none are specified, then to the level consistent with normal, good-faith use of the Service for Customer’s licensed Users, as determined by Nexus in its sole discretion (“Usage Limits”). Customer will not use the AI Features in an excessive manner that exceeds ordinary use or in a manner that circumvents the expected use. If Customer or any of its Users exceeds any Usage Limits, without limiting Nexus’s rights and remedies hereunder, Nexus may, with or without notice to Customer: (a) toggle or reduce availability of all or any portion of the Service; (b) suspend use of the Services in accordance with Section 6 (Suspension of Service); (c) terminate Customer’s account and/or (d) passthrough Nexus’s fees and expenses for such excessive use to Customer.
Nexus may immediately suspend Customer’s access to any or all of the Services if: (a) Customer breaches Section 2.5 (Restrictions) or Section 5 (Customer Obligations); (b) Customer’s account is 30 days or more overdue; (c) changes to Laws or new Laws require that Nexus suspend a Service or otherwise may impose additional liability on the part of Nexus; or (d) Customer’s actions risk harm to any of Nexus’s other customers or the security, availability, or integrity of a Service. Where practicable, Nexus will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Nexus will restore Customer’s access to the Service(s).
Customer will provide and maintain any Customer Systems.
8.1.Use of Third-Party Platforms. Certain aspects of the Services may allow integration with Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Nexus does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer authorizes Nexus to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf. By integrating the Services with any Third-Party Platform, Customer represents and warrants that Customer has all necessary rights, authorizations, and consents necessary to permit Nexus and the Services to interact with such Third-Party Platform as contemplated by the Services, including to obtain data and content from, and transmit data and content to, such Third-Party Platform, and that such integration is permitted by Customer’s agreement(s) with such Third-Party Platform.
8.2.Use of Third-Party Resources. Nexus provides software and informational tools only; it does not provide financial, investment, tax, accounting, or legal advice, and it is not a broker, dealer, investment adviser, or fiduciary of Customer or any User or Athlete. To the extent the Services contain links or other access points to third-party financial service providers or other professional service providers or informational resources (each a “Third-Party Resource”), Customer acknowledges and agrees that any product, service, or resource obtained through a Third-Party Resource is governed by that Third-Party Resource’s own terms and conditions. Nexus does not control and has no liability for Customer or User’s use of any Third-Party Resources, including their security, functionality, operation, availability, or appropriateness.
Customer will give Nexus timely access to Customer Materials reasonably needed for the Professional Services, and if Customer fails to do so, Nexus’s obligation to provide Professional Services will be excused until access is provided. Nexus will use Customer Materials only for purposes of providing Professional Services. Customer may use Professional Services deliverables only as part of its authorized use of the Services, subject to the same terms as for the Services in Section 2 (Services) and Section 5 (Customer Obligations).
10.1.Subscription Term. The Subscription Term is set forth in the applicable Order. Unless otherwise set forth in an Order, each Subscription Term will automatically renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 90 days before the current Subscription Term ends.
10.2.Fees and Taxes. Fees for the Services are described in each Order (“Fees”). Customer will reimburse Nexus for reasonable travel and lodging expenses it incurs in providing Professional Services (“Expenses”). All Fees and Expenses will be paid in US dollars unless otherwise provided in an Order. Fees are invoiced as described on the schedule in the Order and Expenses are invoiced in arrears. Unless the Order provides otherwise, (a) all Fees and Expenses are due within 30 days of the invoice date; and (b) Fees for renewal Subscription Terms are at Nexus’s then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees and Expenses are non-refundable except as may be set out in Section 11.2 (Warranty Remedy) and Section 15.4 (Mitigation). Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Nexus’s income tax (“Taxes”). Fees and Expenses are exclusive of all Taxes.
10.3.Affiliate Orders. An Affiliate of Customer may use Services by entering into its own Order(s) as agreed with Nexus. Each such Order creates a separate agreement between the Affiliate and Nexus which incorporates this Agreement, with the Affiliate treated as “Customer”. Neither Customer nor any Customer Affiliate has any rights or obligations under each other’s agreement with Nexus, and breach or termination of any such agreement is not breach or termination under any other.
11.1.Limited Warranties. Nexus warrants to Customer that:
(a)each of the Services will perform materially as described in its Documentation and Nexus will not materially decrease the overall functionality of the Service (“Performance Warranty”) during a Subscription Term; and
(b)Nexus will perform any Professional Services in a professional and workmanlike manner (“Professional Services Warranty”).
The Performance Warranty and Professional Services Warranty are each referred to as a “Limited Warranty” and collectively as the “Limited Warranties”.
11.2.Warranty Remedy. If Nexus breaches a Limited Warranty during the applicable Subscription Term and Customer makes a reasonably detailed warranty claim in the manner required by Nexus within 30 days of discovering a breach of the Performance Warranty for the applicable Service(s) or of receipt of Professional Services, then Nexus will use reasonable efforts to correct the non-conformity. If Nexus cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the non-conforming Service or Professional Services. Nexus will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). This Section sets forth Customer’s exclusive remedy and Nexus’s entire liability for breach of the Limited Warranties. These warranties do not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Service other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.
11.3.Disclaimers. Except as expressly provided in Section 11.1 (Limited Warranties), the Services, Professional Services, and all other Nexus services are provided “AS IS”. Nexus, on its own behalf and on behalf of its suppliers and licensors, makes no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. Nexus does not warrant that Customer’s use of the Services will be uninterrupted or error-free, that Nexus will review Customer Data for accuracy, or that it will maintain Customer Data without loss. Nexus is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Nexus’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period. The Service, the Nexus Program (including the Nexus Curriculum, Nexus Exam, and Nexus Certification), and all materials, content, and information made available through the Service are provided for general informational and educational purposes only. They do not constitute, and are not a substitute for, financial, investment, legal, tax, accounting, or other professional advice, and no fiduciary, advisory, or professional-client relationship is created between Customer and Nexus. Customer is responsible for ensuring that the Services, and all content accessed by Customer via the Services, are appropriate for use by Customer and its Athletes. The Services also include artificial intelligence powered features such as personalized curriculum delivery, adaptive exam generation, contract analysis tools, and daily financial insights (collectively, “AI Tools”). AI Tools are provided in part by third-party service providers, and Nexus makes no representations, warranties, or guarantees about any output provided by any AI Tools. Nexus does not guarantee the accuracy, completeness, timeliness, or applicability of any information from Nexus, AI tools or any AI-generated content.
12.1.Term. The term of this Agreement (the “Term”) starts on the Effective Date and continues until expiration or termination of all Subscription Terms.
12.2.Termination. Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
12.3.Effect of Termination. Upon expiration or termination of an Order, Customer’s access to and Nexus’s obligations to provide the Services, and Professional Services described in the Order and any Software will cease. During a Subscription Term and for the 30 day period immediately following the date of expiration or earlier termination of the applicable Subscription Term, Customer may export data or information that Customer (including its Users) submits to the Services, including from Third-Party Platforms from the applicable Service using the export features described in the applicable Documentation. After that 30 day period, Nexus will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 16, may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.
12.4.Survival. These Sections survive expiration or termination of this Agreement: 2.5 (Restrictions), 4.2 (Usage Data; Aggregated Data), 5 (Customer Obligations), 10.2 (Fees and Taxes), 11.3 (Disclaimers), 12.3 (Effect of Termination), 12.4 (Survival), 13 (Ownership), 14 (Limitations of Liability), 15 (Indemnification), 16 (Confidentiality), 17 (Required Disclosures), 20 (General Terms), and Exhibit A (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data and Customer Materials provided to Nexus. Except for Customer’s use rights in this Agreement, Nexus and its licensors retain all intellectual property rights and other rights in the Services, any Professional Services deliverables, Software, Documentation, Usage Data, and Nexus technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Nexus. If Customer provides Nexus with feedback or suggestions regarding the Services or other Nexus offerings, Nexus may use the feedback or suggestions without restriction or obligation.
14.1.Consequential Damages Waiver. Except for Excluded Claims (as defined below) neither party (nor its suppliers or licensors) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.
14.2.Liability Cap. Except for Excluded Claims, each party’s (and its suppliers’ and licensors’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Nexus pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement.
14.3.Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Sections 2.5 (Restrictions) or 5 (Customer Obligations); (b) either party’s breach of Section 16 (Confidentiality) (but excluding claims relating to Customer Data); or (c) amounts payable to third parties under the indemnifying party’s obligations in Section 15 (Indemnification).
14.4.Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 14.4 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
15.1.Indemnification by Nexus. Nexus will defend Customer from and against any third-party claim to the extent alleging that a Service as operated by Nexus, when used by Customer as permitted under the applicable Order infringes or misappropriates a third-party’s U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Nexus resulting from the claim.
15.2.Indemnification by Customer. Customer will defend Nexus from and against any third-party claim to the extent resulting from Customer Data, Customer Materials, or Customer’s breach or alleged breach of Section 5 (Customer Obligations) or any representations or warranties set forth in this Agreement, and will indemnify and hold harmless Nexus against any damages and costs awarded against Nexus (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.
15.3.Procedures. The indemnifying party’s obligations in this Section 15 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services, when Nexus is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
15.4.Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Nexus determines necessary to avoid material liability, Nexus may at its option: (a) procure rights for Customer’s continued use of the applicable Service; (b) replace or modify the allegedly infringing portion of the applicable Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.
15.5.Exceptions. Nexus’s obligations in this Section 15 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Services or use of Services in combination with items not provided by Nexus (including Third-Party Platforms); (b) to infringement resulting from Software other than the most recent update; (c) to unauthorized use of Services; (d) if Customer settles or makes any admissions about a claim without Nexus’s prior consent; or (e) to Trials and Betas (as defined in Section 18) or other free or evaluation use.
15.6.Exclusive Remedy. This Section 15 sets out Customer’s exclusive remedy and Nexus’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.
16.1.Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Nexus’s Confidential Information includes any technical or performance information about the Services. Customer’s Confidential Information includes Customer Data.
16.2.Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Nexus is the Recipient, Nexus may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Nexus, the subcontractors referenced in Section 20.9), provided it remains responsible for their compliance with this Section 16 and they are bound to confidentiality obligations no less protective than this Section 16.
16.3.Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
16.4.Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 16.
Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
If Customer receives access to Services or features thereof on a free or trial basis or as an alpha, beta, evaluation, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Nexus (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Nexus may never release, and their features and performance information are Nexus’s Confidential Information. Notwithstanding anything else in this Agreement, Nexus provides no warranty, indemnity, or support for Trials and Betas, and its liability for Trials and Betas will not exceed US$50.
Customer grants Nexus a non-exclusive, royalty-free, worldwide license during the Subscription Term to use, reproduce, and publicly display Customer’s name, logos, and trademarks (including those of Customer’s athletic teams if Customer is an educational institution) (collectively, “Marks”) in Nexus’s customer lists and promotional materials but will cease further use at Customer’s written request. Nexus will use Customer’s Marks in accordance with any written usage guidelines Customer provides. All goodwill from Nexus’s use of the Customer’s Marks inures to Customer.
20.1.Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
20.2.Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California and both parties submit to the personal jurisdiction of those courts.
20.3.Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
20.4.Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the first page and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either party may update its address with notice to the other party. Nexus may also send operational notices to Customer by email or through the Services.
20.5.Entire Agreement. This Agreement (which includes all Orders, Schedules, and the Policies) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. No other terms issued by Customer will be of effect, in accordance with applicable law. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement will be executed on the date of the last signature of the applicable Order.
20.6.Amendments. Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Nexus. Nonetheless, with notice to Customer, Nexus may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease Nexus’s overall obligations during a Subscription Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Nexus; any of these Customer documents are for administrative purposes only and have no legal effect.
20.7.Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.
20.8.Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster (“Force Majeure Events”).
20.9.Subcontractors. Nexus may use subcontractors and permit them to exercise Nexus’s rights, but Nexus remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
20.10.Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.
20.11.Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) 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; (b) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.
20.12.Open Source. The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation or otherwise disclosed by Nexus in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
20.13.Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
20.14.Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of the body of this Agreement and the terms of any Schedules, exhibits, attachments, addenda, Policies, and other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms in the applicable Order; (b) the terms contained in the body of this Agreement; (c) the terms of the Schedules, exhibits, attachments, addenda, and Policies to this Agreement; and (d) the Documentation.
1.1.“Affiliate” means (a) an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of 50% or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity, or (b) if Customer is an educational institution, any sister, affiliated, or associated educational institution that Customer designates in writing to Nexus and is accepted by Nexus in writing.
1.2.“Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
1.3.“Athlete” means an athlete to whom Customer provides access to the Services pursuant to an applicable order form who is directly affiliated with Customer, such as (i) a student athlete who is enrolled within Customer’s educational institution if Customer is an educational institution; or (ii) or an athlete represented or managed by Customer if Customer is an agency.
1.4.“AUP” means the then-current version of Nexus’s Acceptable Use Policy, which is available at https://www.nexusnil.ai/acceptable-use or such other URL or location as may be specified by Nexus from time to time.
1.5.“Customer Data” means any data or information that: (a) Customer (including its administrative Users) submits to the Services, including from Third-Party Platforms; and (b) is Processed by Nexus to provide the Services to Customer. Customer Data does not include Athlete Data.
1.6.“Customer Materials” means materials, systems, and other resources that Customer provides to Nexus in connection with Professional Services.
1.7.“Customer Systems” means Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Services.
1.8.“Documentation” means the then-current version of Nexus’s usage guidelines and standard technical documentation for the Services that Nexus makes generally available to its customers that it provides the applicable Services to, the current version of which are at Not yet decided.
1.9.“High Risk Activities” means activities where use or failure of a Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
1.10.“Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data.
1.11.“Order” means an order that describes the Services being purchased by Customer that is executed by the parties and references this Agreement.
1.12.“Policies” means the AUP, and Privacy Policy.
1.13.“Privacy Policy” means Nexus’s then-current Privacy Policy, which are available at https://www.nexusnil.ai/privacy or such other URL or location as may be specified by Nexus from time to time.
1.14.“Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
1.15.“Professional Services” means any implementation, training, or configuration services provided by Nexus related to the Services, as identified in an Order. Professional Services exclude support.
1.16.“Referral Partners” means third parties, including but not limited to financial institutions, banks, investment platforms, insurance providers, or other service providers with whom Nexus has entered into a commercial arrangement.
1.17.“Schedule” means a document that adds and/or adjusts certain terms of the Agreement as they apply to the purchase of one or more Services. Each Schedule is governed by and a part of the terms of this Agreement.
1.18.“Service” or “Services” means the then-current version of Nexus’s proprietary cloud service and other services that are identified in the relevant Order (but excluding Professional Services). Each of the Services includes the Software and Documentation for the Service.
1.19.“Software” means any software, scripts, or other code required by Nexus to operate a Service.
1.20.“Subscription Term” means the period during which Customer’s subscription to access and use the Services is in effect, as identified in the applicable Order.
1.21.“Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Nexus that Customer elects to integrate or enable for use with any Service.
1.22.“Updates” means any updates, modifications, or bug fixes to the Services or Documentation that Nexus provides free of additional charge to its customers using a Service.
1.23.“Upgrades” means additions, enhancements, upgrades, new services, or modules that include new features and substantial increases in functionality to the Services that Nexus makes available to its customers for an additional fee.
1.24.“Usage Data” means information generated from the use of the Services, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Services, but excluding any identifiable Customer Data.
1.25.“User” means any of Customer’s employees or contractors who are authorized to use the Services on Customer’s behalf (e.g., if Customer is an educational institution, typically an institutional budget owner, such as an athletic director, program GM, or NIL collective representative). As used in this Agreement, “User” does not include any Athlete users of the Service.