Nexwin Technologies Customer Terms of Service

1. Definitions

"Third-Party Legal Proceeding" means any legal proceeding instituted before a court, arbitration, mediation, or any government body by a person or entity other than Nexwin Technologies or the Customer.

2. Your Use of The Services

Subject to these Terms, you are granted a license to use our Services. If you use the Nexwin Technologies Cloud Service or any of our Consulting Services, you acknowledge and agree that your access to and use of the Services will be subject to these terms and conditions.

3. Acceptable Use and Nexwin AI Chatbot Fair Use Policy

Customer agrees not to, and not to allow third parties to use the Services:

• to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing Customer End Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act);
• to engage in, promote or encourage illegal activity;
• for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
• to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
• to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
• to disable, interfere with or circumvent any aspect of the Services;
• to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertising or other solicitations ("spam"); or
• to use the Services, or any interfaces provided with the Services, to access any other Nexwin Technologies product or service in a manner that violates the terms of service of such other Nexwin Technologies product or service.

3.1 What fair use means for Nexwin AI Chatbot

This fair-use policy applies only to an Nexwin AI Chatbot plan that is expressly described as subject to fair use in the applicable pricing, order or plan description. Nexwin AI Chatbot is designed for genuine, visitor-initiated website enquiries connected with the Customer's own business. Fair use means using Nexwin AI Chatbot for that business purpose, including answering customer questions, collecting enquiry details and running configured booking flows. Nexwin will not apply an undisclosed monthly message cap to restrict normal business use solely because of message volume.

3.2 Activity that is not fair use

Fair use does not include use that is automated, abusive, inappropriate or outside the Nexwin AI Chatbot website-chat product. Without limiting Section 3, Customer must not use, or allow any person to use, Nexwin AI Chatbot for:

• automated, synthetic, scripted or bot-generated traffic that is not a genuine visitor enquiry;
• load, stress, performance or benchmark testing without Nexwin's prior written approval;
• resale, service-bureau use, account sharing between unrelated businesses, or making Nexwin AI Chatbot available as a service to third parties;
• bulk, API or other programmatic use outside the Nexwin AI Chatbot website-chat product;
• content or activity that is unlawful, harmful, fraudulent, offensive, infringing, invasive of privacy or otherwise inappropriate; or
• deliberate or abnormal activity that threatens the security, integrity, availability or cost-effective operation of Nexwin AI Chatbot or related services.

3.3 Investigation and service protection

If Nexwin reasonably believes that Nexwin AI Chatbot is being used contrary to this policy, or that its continued operation may threaten security, service availability or other customers, Nexwin may investigate and take proportionate protective action. To the maximum extent permitted by law, Nexwin may immediately suspend, restrict or disconnect the affected Nexwin AI Chatbot service without prior notice where it reasonably considers that action necessary to protect the service, its users or third parties. Where the use appears legitimate but unusual, Nexwin will ordinarily contact the Customer and investigate before restricting the service or discussing a custom arrangement; however, Nexwin is not required to give prior notice where doing so would be impracticable or would increase the relevant risk.

4. Intellectual Property Rights

Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and the Application or Project (if applicable), and Nexwin Technologies owns all Intellectual Property Rights in the Services and Software.

5. Confidential Information

"Confidential Information" means information that one party (or an Affiliate) discloses to the other party (recipient) under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer's Confidential Information.

5.1 Obligations

The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.

5.2 Required Disclosure

Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual.

6. Term and Termination

6.1 Agreement Term

The "Term" of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 5 of this Agreement.

6.2 Termination for Breach

Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, Nexwin Technologies may terminate any, all, or any portion of the Services or Projects, if Customer meets any of the conditions in Section 5.2(i), (ii), and/or (iii).

6.3 Termination for Convenience

Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. Nexwin Technologies may terminate this Agreement for its convenience at any time without liability to Customer.

6.4 Effect of Termination

If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) Nexwin Technologies will delete all Customer data for all storage devices; (iii) Customer will cease any use of all Services provided by Nexwin Technologies and (iv) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.

7. Limitation of Liability

7.1 Limitation on Indirect Liability

To the maximum extent permitted by applicable law, neither party, will be liable under this agreement for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, even if the party knew or should have known that such damages were possible and even if direct damages do not satisfy a remedy.

7.2 Exceptions to Limitations

These limitations of liability do not apply to violations of a party's Intellectual Property Rights by the other party, indemnification obligations, or Customer's payment obligations.

8. Indemnification

8.1 By Customer

Unless prohibited by applicable law, Customer will defend and indemnify Nexwin Technologies and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Instance, Customer Data or Customer Brand Features; or (ii) Customer's, or Customer End Users', use of the Services in violation of the acceptable use policy.

8.2 By Nexwin Technologies

Nexwin Technologies will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) Nexwin Technologies's technology used to provide the Services or (b) any Nexwin Technologies Brand Feature infringes or misappropriates third party's patent, copyright, trade secret, or trademark.

8.3 Exclusions

This Section 7 will not apply to the extent the underlying Allegation arises from:

• the indemnified party's breach of this Agreement;
• modifications to the indemnifying party's technology or Brand Features by anyone other than the indemnifying party;
• combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party; or
• use of non-current or unsupported versions of the Services or Brand Features;

8.4 Conditions

Sections 7.1 and 7.2 will apply only to the extent:

• The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 7.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 7.1 or 7.2 (as applicable) will be reduced in proportion to the prejudice.
• The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.

9. Representations and Warranties

Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.

10. Disclaimer

Without limiting the foregoing, our Service and all other features offered, are provided to you "AS IS" and "AS AVAILABLE" without warranty of any kind, either express or implied, including but not limited to, fitness for a particular purpose, title, or non-infringement. Should applicable law not permit the foregoing exclusion of express or implied warranties, then Nexwin Technologies hereby grants the minimum express or implied warranty required by such applicable law.

11. Notices

All notices must be in writing and addressed to the other party's legal department and primary point of contact. The email address for notices being sent to legal@nexwin.com.au. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).

12. Assignment

Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.

13. Change of Control

If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.

14. Force Majeure

Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

15. No Agency

This Agreement does not create any agency, partnership or joint venture between the parties.

16. No Waiver

Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

17. Severability

If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

18. Fees, Billing and Refunds

18.1 Fees and Billing Cycle

Subscription fees are charged monthly in advance for the plan selected by Customer, and are quoted exclusive of GST unless stated otherwise. Each billing period begins on the day the paid plan starts and renews on the same day each month. Customer authorises Nexwin Technologies to charge the payment method held on file for each renewal until the subscription is cancelled.

18.2 Free Trial

Where a free trial is offered, a valid payment method is required at sign-up and no charge is made during the trial period. The selected paid plan begins automatically at the end of the trial unless Customer cancels before the trial ends.

18.3 Plan Allowances

Included call minutes and other plan allowances are made available in full at the start of each billing period and do not carry over to the next period. Usage beyond the included allowance is charged at the applicable overage rate.

18.4 Cancellation

Customer may cancel a subscription at any time from the Nexwin dashboard. Cancellation takes effect at the end of the billing period in which it is requested. Customer retains access to the Services, and to the remaining allowances for that period, until the end of that period, and is not charged for any subsequent period.

18.5 No Partial or Pro-Rata Refunds

Because plan allowances are made available in full at the start of each billing period, fees already paid for the current billing period are not refunded in whole or in part, whether the subscription is cancelled, the account is deleted, or the Services cease to be used. Deleting an account ends the subscription immediately and no refund is issued for the remainder of the then-current billing period. Nexwin Technologies may, at its discretion, issue a refund to correct a billing error.

18.6 Changes to Plans

Customer may change plans at any time. An upgrade takes effect immediately and Customer is charged the prorated difference for the remainder of the current billing period. A downgrade takes effect at the next renewal, and Customer retains the current plan and its allowances for the remainder of the billing period already paid for.

18.7 Changes to Fees

Nexwin Technologies may change its fees on at least thirty days' prior notice to Customer. A fee change takes effect from the next billing period beginning after that notice period ends. If Customer does not accept the change, Customer may cancel in accordance with Section 18.4.

18.8 Australian Consumer Law

Nothing in this Section 18 excludes, restricts or modifies any guarantee, right or remedy that Customer may have under the Australian Consumer Law or any other law that cannot lawfully be excluded, restricted or modified. Where the Australian Consumer Law applies and confers a right to a remedy that cannot be excluded, that right prevails over this Section 18 to the extent of any inconsistency.

19. Miscellaneous

Nexwin Technologies's failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

These Terms, together with our Privacy Policy, form the entire agreement between you and Nexwin. For questions about these Terms, contact us.