Nx Cloud terms of service

1. Definitions

(a) "Aggregate data" means any data that is derived or aggregated in deidentified form from (i) Your Data; or (ii) you and your Authorized Users use of the Software, including, without limitation, any usage data, metrics, metadata or trends with respect to the Software (including the workspaces therein) and its component features and functionalities, in each case in anonymized form.

(b) "Authorized user" means any employee or contributor that you authorize to Use the Software for purposes of operating and maintaining the Software.

(c) "Documentation" means the operator and user manuals, training materials, specifications, minimum system configuration requirements, and other similar materials in hard copy or electronic form if and as provided by Nx to Customer (including any revised versions thereof) relating to the Software.

(d) "Licensed volume" means the limits, volume or other measurement or conditions of permitted Use for the Software as set forth in the Order Information, including any limits on the number of Authorized Users permitted to Use the Software based on your subscription tier.

(e) "Nx IP" means the Software, the underlying software provided in conjunction with the Software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Software or any related services, Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.

(f) "Order information" means certain terms associated with your subscription to Use the Software, as communicated to you at the time you signed up for a subscription electronically through our Site via our Pricing Page.

(g) "Person" means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

(h) "Pricing page" means our Pricing Page available at https://nx.dev/pricing, which may be updated from time to time.

(i) "Use" means to use, access and/or operate the Software in accordance with this Agreement and any instructions provided to you by Nx.

(j) "Your data" means all information, data, and other content, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of you, or any Authorized User to Nx in connection with your and your Authorized Users’ use of the Software, but excluding, for clarity, Aggregate Data and any Nx IP.

2. Access and use

(a) Provision of access

Subject to the terms and conditions of this Agreement, Nx hereby grants you a worldwide, non-exclusive, non-transferable (except in compliance with Section 15(f)), non-sublicensable right to Use the Software for your internal business purposes (the "Purpose") during the Term; provided that you (i) sign up for an account to Use the Software in accordance with Nx’s then-current account registration procedures; (ii) strictly comply with the restrictions set forth in Section 2(b) and (iii) Use the Software in accordance with the Documentation and subject to the Licensed Volume. You have the right to permit Authorized Users to Use the Software on your behalf for the Purpose in accordance with this Agreement; provided, however, that you will remain fully and directly liable to Nx for any and all use of the Software by Authorized Users as if such Use was by you yourself under this Agreement.

(b) Use restrictions

You will not use the Software for any purposes beyond the scope of the rights granted in this Agreement. You will not (and will not attempt to) at any time, directly or indirectly, and will not permit any Person (including, without limitation, your Authorized Users) to: (i) modify or create derivative works of the Software or Documentation, in whole or in part; (ii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Software, in whole or in part; (iii) sell, resell, rent or lease the use of the Software or Documentation to any other Person, or otherwise allow any Person to use the Software or Documentation for any purpose other than for your benefit for the Purpose in accordance with this Agreement; (iv) use the Software to store, transmit or post any infringing, libelous or otherwise unlawful or tortious material or any data (including, without limitation any of Your Data) for which you do not have the necessary consents or rights to provide via the Software; (v) interfere with, or disrupt the integrity or performance of, the Software, or any data or content contained therein or transmitted thereby; (vi) access or search the Software (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Software features provided by Nx for use expressly for such purposes or (vii) use the Software, Documentation or any other Confidential Information of Nx for competitive analysis or benchmarking purposes, or to otherwise develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Software or other Nx IP.

(c) Reservation of rights

Nothing in this Agreement or the performance thereof will operate to grant you any right, title or interest, whether by implication, estoppel or otherwise, in or to the Nx IP, other than as expressly set forth in this Agreement. As between Nx and you, Nx will exclusively own all right, title and interest in and to the Nx IP. All intellectual property rights created in any such improvements, modifications and derivative works of the Software will vest solely in Nx upon creation, and to the extent that sole ownership does not originally vest in Nx, such intellectual property rights are hereby automatically and irrevocably assigned by you (and your Authorized Users) to Nx. Each party hereby expressly reserves all intellectual property rights not expressly granted hereunder.

3. Fees and payment

(a) Fees

You will pay Nx all fees set forth in your Order Information ("Fees") on and in accordance with the payment dates specified in your Order Information. All Fees are non-refundable and payable in U.S. dollars or any other currency that may be designated in your Order Information. Nx reserves the right to change the Fees, applicable charges and Licensed Volume and to institute new charges and Fees and revised limits of the Licensed Volume upon thirty (30) days’ prior notice to you (which may be sent by email). Except as otherwise designated in your Order Information, Fees will be paid by the approved credit card that you designate when you sign up to Use the Software on our Site. You hereby authorize us to initiate all payment transactions for Fees from your approved credit card when such Fees are due. Any and all Fees hereunder that are not paid to Nx when due will accrue interest at a rate of 1.5% per month, or the maximum rate permitted by law, whichever is greater. You will reimburse Nx for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting overdue amounts hereunder. In the event of a conflict between this Agreement and the Order Information, the Order Information will control and govern.

(b) Taxes

All Fees and other amounts payable to Nx hereunder do not include any sales, use, value added or other applicable taxes, tariffs or duties (the "Taxes"), payment of which will be your sole responsibility (excluding any Taxes based on Nx’s net income). You will promptly reimburse Nx for any such amounts that Nx pays on your behalf.

4. Confidential information

"Confidential Information" means any information that one party (the "Disclosing Party") provides to the other party (the "Receiving Party") in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure. For clarity, the Software and the Documentation will be deemed Confidential Information of Nx and Your Data will be deemed your Confidential Information. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Nx may use and modify your Confidential Information in deidentified form for purposes of developing and deriving Aggregated Data. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (A) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (B) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

5. Policies

You hereby acknowledge that you have reviewed and agreed to the Nx Privacy Policy at https://cloud.nx.app/privacy. Such policy is hereby incorporated into and is hereby deemed a part of this Agreement, binding upon you and you Authorized Users with respect to your and their Use of the Software in connection with this Agreement.

6. Support

As part of your subscription to the Software, Nx will provide reasonable support in connection with the Software in accordance with the support terms set forth your Order Information.

7. Feedback

From time-to-time you or your Authorized Users may provide Nx with suggestions, comments and feedback with regard to the Software (collectively, "Feedback"). You, on behalf of yourself and your Authorized Users, hereby grant Nx a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Nx’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Software.

8. Data

(a) As between you and Nx and except as set forth in Section 8(b), you will own and retain all right, title and interest in and to all Your Data.

(b) You hereby grant Nx a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify and make derivative works of Your Data in connection with the hosting, operation, improvement and provision of the Software (or any similar platform or software owned by Nx, including, without limitation, the Software) or any other business purpose.

(c) You hereby represent, warrant and covenant to Nx that you have obtained and will obtain all necessary consents with respect to any and all of Your Data hosted, collected, stored or transmitted through the Software to the extent necessary (i) for you and Nx to comply with all applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws; and (ii) for you to grant the licenses contemplated by Section 8(b).

9. Representations and warranties

Each party hereby represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (b) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party.

10. Indemnification

(a) Nx indemnification

Subject to Sections 10(b) and 10(e), Nx will defend and pay all damages finally awarded against you pursuant to a final, valid and binding judgment or order, or a final settlement agreement with respect to any claim, suit or proceeding brought by a third party against you arising from the Software’s infringement of such third-party’s intellectual property rights.

(b) Exclusions

Nx’s obligations under Section 10(a) will not apply if the underlying third-party claim arises from (i) your breach of this Agreement, negligence, willful misconduct or fraud; (ii) modifications to the Software by anyone other than Nx; or (iii) combinations of the Software of with software, data or materials not provided by Nx, including, without limitation, Your Data.

IP remedies

If Nx reasonably believes the Software (or any component thereof) could infringe any third party’s intellectual property rights, Nx may, at its sole option and expense: (i) procure the right for you to continue using the Software (or any infringing component thereof) to make it non-infringing without materially reducing its functionality; or (ii) replace the Software (or any infringing component thereof) with a non-infringing alternative that is functionally equivalent in all material respects. If the foregoing remedies are not available to Nx on commercially reasonable terms, then Nx may suspend or terminate your use of the Software upon notice to you. The rights and remedies set forth in this Section 10 shall constitute your sole and exclusive remedy for any intellectual property infringement by the Software.

Your indemnification

Subject to Section 10(e), you will defend and pay all damages finally awarded against Nx pursuant to a final, valid and binding judgment or order or a final settlement agreement with respect to any claim, suit or proceeding brought by a third party against Nx arising from: (i) any of Your Data stored, collected, hosted or transmitted in violation of applicable laws, rules and regulations or this Agreement; and (ii) any breach of the restrictions set forth in Section 2(b).

Indemnification procedures

The party seeking defense and indemnity (the "Indemnified Party") will promptly notify the other party (the "Indemnifying Party") of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any claim without the Indemnified Party's prior written approval unless the settlement unconditionally releases the Indemnified Party from all liability, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party's business, products or services). The Indemnified Party may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

11. Disclaimers

EXCEPT AS EXPRESSLY SET FORTH HEREIN, YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, AND NX MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU, YOUR AUTHORIZED USERS OR TO ANY OTHER PERSON REGARDING THE SOFTWARE OR ANY OTHER SERVICES PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NX HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NX HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SOFTWARE WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.

12. Limitations of liability

(a) Exclusion of damages

IN NO EVENT WILL NX BE LIABLE TO YOU, YOUR AUTHORIZED USERS OR ANY OTHER PERSON FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(b) Total liability

IN NO EVENT WILL NX’S TOTAL LIABILITY TO YOU, YOUR AUTHORIZED USERS OR ANY OTHER PERSON IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE SOFTWARE EXCEED THE FEES ACTUALLY PAID BY YOU TO NX IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO SUCH LIABILITY OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO NX, AS APPLICABLE.

13. Term and termination

(a) Term

The term of this Agreement will begin on the effective date in the Order Information, and will expire at the end of the initial term specified in the Order Information (the "Initial Term"). Following the Initial Term, this Agreement will automatically renew for successive one-month terms (the Initial Term, together with any renewal term, the "Term"), unless Nx or you provides the other with at least twenty (20) days’ written notice of its intent not to renew prior to the end of the then-current term.

(b) Termination

Without limiting any right or remedy available to either party, either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.

(c) Survival

This Section 13(c) and Sections 1, 2(b), 2(c), 3, 4, 5, 7, 8, 10, 11, 12 and 15 survive any termination or expiration of this Agreement.

14. Trademarks

(a) You hereby grant Nx a limited, non-exclusive, royalty-free license to use and display your name, designated trademarks and associated logos ("Your Marks") during the Term in connection with (i) the hosting, operation and maintenance of the Software; and (ii) Nx’s marketing and promotional efforts for its products and services, including by publicly naming you as a customer of Nx. All goodwill and improved reputation generated by Nx’s use of Your Marks inures to your sole and exclusive benefit.

(b) Nx will use Your Marks only in the form stipulated by you and will conform to and observe such standards as you prescribe from time to time, including standards relative to the quality, design, identity, size, position, appearance, marking and color of Your Marks, and the manner, disposition and use of Your Marks in connection with the license granted hereunder.

15. Miscellaneous

(a) Entire agreement

This Agreement, together with any terms or other documents incorporated herein by reference, are the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter, including any prior terms of service. This Agreement may be amended or modified only by a written document assented by duly authorized representatives of the parties.

(b) Notices

Nx may provide notices to you by posting them on the Site, by providing electronic notification via the Software, or by email to the address associated with your account. You may provide notices to us via email at cloud-support@nrwl.io. All notices are effective upon posting or when delivered.

(c) Waiver

Except as otherwise set forth in this Agreement, either party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.

(d) Severability

If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect.

(e) Governing law; Jurisdiction

This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.

(f) Assignment

Nx may freely assign its rights and obligations under this Agreement. You may not assign or transfer this Agreement, by operation of law or otherwise, without Nx’s prior written consent; provided, however, that you may assign your rights or delegate your obligations, in whole or in part, without such consent, to (i) one or more of your affiliates, or (ii) a third party that succeeds to all or substantially all of your business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise; provided that, in either case of (i) and (ii) such affiliate or other entity (as applicable) agrees in writing to assume all of your obligations hereunder. Any attempt to assign or transfer this Agreement without such consent will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns.

(g) Equitable relief

Each party hereby agrees that any breach of this Agreement may cause such other party to incur irreparable harm and significant injury that would be difficult to ascertain and would not be compensable by damages alone. Accordingly, each party agrees that, in addition to any other rights and remedies that the non-breaching party may have at law or otherwise with respect to such a breach, the non-breaching party will have the right to seek specific performance, injunction or other appropriate equitable relief.

(h) No third-party beneficiaries

Unless otherwise expressly provided, no provisions of this Agreement are intended or will be construed to confer upon or give to any person or entity, other than the parties, any rights, remedies or other benefits under or by reason of this Agreement.