Legal

Privacy Policy

This Privacy Policy is effective immediately once anyone begins using the Service (as defined below)

At Midnight Ride Technologies, we respect your privacy and are committed to maintaining your trust. This Privacy Policy describes our policies on the collection, use, and disclosure of information in connection with your use of our products and services, our online booking, marketing and business management software (collectively, the “Service”), and any other Midnight Ride Technologies products and services offered through any other websites, that direct you to this Privacy Policy. When you access or use the Service, you agree to the terms and conditions of this Privacy Policy.

  1. Defined Terms.

    The following terms will have the meanings indicated below. Please refer to our Terms of Service for any capitalized terms that are not defined in this policy.

    "Customer User" means any individual who interacts with the Service, including users of our, and individuals who book appointments, purchase services and otherwise interact with our Subscribers through the Service.

    "Other Information" is any information that does not reveal your specific identity or does not directly relate to an individual, such as browser and device information, app usage data, information collected through cookies, pixel tags and other technologies, demographic information and other information provided by you, and aggregated information.

    "Personal Information" is information that identifies you as an individual or relates to an identifiable person, such as name, postal address, telephone number, email address, and social media account ID.

    "Subscriber" is any business or entity that subscribes to our software.

  2. Information We Collect.

    We may collect information about you whenever you use the Service, for example:

    • When you create an account we may ask for Personal Information such as your name, email, mailing address and other information you may provide with your account. You can edit certain information in your account through the settings tab.
    • If you’re a customer of one of our Subscribers, we collect information about you when you interact with their business through the Service. For example, if you initiate an event with the Subscriber through the Service, such as an appointment or we may collect information about you, such as your name, email, as well as any other information you provide in order to process the transaction.
    • If you’re a Subscriber, we collect information about your business that is submitted to the Service under your account. When you sign up for our Software Service, we ask for your company name, address, phone number, email, and other information about your business, as well as names and email addresses of authorized individuals on your account. We also collect Personal Information about your customers that they provide to the Service when they initiate a transaction with you, such as an appointment or purchase.
    • We may store other information that your computer or mobile device provides to us in connection with your use of the Service, such as type of computer or mobile device, unique device identifier, IP Address, MAC address, device’s operating system and physical location (including geolocation).
    • We may collect other Personal Information through the Service under the direction of our Subscribers.
  3. How Personal Information May Be Used.

    We may use your Personal Information:

    • To respond to your inquiries and fulfill your requests.
    • To send administrative information to you, for example, information regarding our services and changes to our terms, conditions, and policies.
    • To complete and fulfill your purchase or class registration, for example, to process your payments, communicate with you regarding your purchase and provide you with related customer service.
    • To send you marketing communications that we believe may be of interest to you, such as to send you newsletters and offerings.
    • To personalize your experience on the Service by presenting products and offers tailored to you, including complementary products and services of our partners.
    • To facilitate social sharing functionality.
    • For our business purposes, such as data analysis, audits, fraud monitoring and prevention, developing new products and services, enhancing, improving or modifying our products and services, identifying usage trends, determining the effectiveness of our promotional campaigns and operating and expanding our business activities.
    • As we believe to be necessary or appropriate: (a) under applicable law, including laws outside your country of residence; (b) to comply with legal process; (c) to respond to requests from public and government authorities including public and government authorities outside your country of residence; (d) to enforce our terms and conditions; (e) to protect our operations or those of any of our affiliates; (f) to protect our rights, privacy, safety or property, and/or that of our affiliates, you or others; and (g) to allow us to pursue available remedies or limit the damages that we may sustain.
  4. How Personal Information May Be Disclosed.

    We may disclose your Personal Information:

    • To our Subscribers for the purposes described in this Privacy Policy.
    • To our strategic partners and third-party service providers who provide services such as website hosting, data analysis, payment processing services, order fulfillment, information technology and related infrastructure provision, customer service, email delivery, credit card processing, auditing and other similar services.
    • To our Subscribers if you are a Customer User and are using our Service to interact with that Subscriber. Please contact the Subscriber you interact with directly for more information on that Subscriber’s privacy practices.
    • For legal purposes described in the section below titled “Legal Disclosure.”

    Please note that we may use and disclose Other Information for any purpose, except where we are required to do otherwise under applicable law. If we are required to treat Other Information as Personal Information under applicable law, then we may use it for all the purposes for which we use and disclose Personal Information. In some instances, we may combine Other Information with Personal Information (such as combining your name with your geographical location). If we combine any Other Information with Personal Information, we will treat the combined information as Personal Information.

  5. Your Choices.

    If you would like to review, correct, update, suppress, or delete Personal Information that has been previously provided by you, you may contact us by logging into your account and making the appropriate.

    Please note that we may need to retain certain information for recordkeeping purposes and/or to complete any transactions that you began prior to requesting such change or deletion (e.g., when you make a purchase, you may not be able to change or delete the Personal Information provided until after the completion of such purchase). There may also be residual information that will remain within our databases and other records, which will not be removed.

    • Your choices regarding our use and disclosure of Personal Information: For marketing purposes, including but not limited to, one-off promotional e-mailing, direct mail, and sales contacts. We give you many choices regarding our use and disclosure of your Personal Information for marketing purposes. You may opt-out from:

    • Receiving electronic communications from us: If you no longer want to receive marketing-related emails from us on a going-forward basis, you may opt-out of receiving these marketing-related emails by clicking the unsubscribe link in the emails.

    We will try to comply with your request(s) as soon as reasonably practicable. Please also note that if you do opt-out of receiving marketing-related emails from us, we may still send you messages for administrative or other purposes directly relating to your use of the Service, and you cannot opt-out from receiving those messages.

  6. Legal Disclosure.

    We reserve the right to disclose Personal Information that we believe to be necessary or appropriate in the following circumstances:

    • As required by law, including laws outside your country of residence, such as to comply with a subpoena, or similar legal process.
    • When we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, investigate fraud, or respond to a government request including a request from authorities outside your country of residence.
    • To enforce our terms and conditions.
    • To allow us to pursue available remedies or limit the damage we may sustain.
    • If next open is involved in a merger, acquisition, or sale of all or a portion of its assets, you will be notified via email and/or a prominent notice within the software and/or on our Website of any change in ownership or uses of your Personal Information, as well as any choices you may have regarding your Personal Information.
  7. Links To Other Websites.

    This Privacy Policy does not address, and we are not responsible for, the privacy, information or other practices of any third parties, including our Subscribers and any third party operating any Third Party Offering, site or other products and services used in connection with our Service. The inclusion of a link does not imply endorsement of the linked site or service by us or by our affiliates.

    Please note that we are not responsible for the collection, usage and disclosure policies and practices (including the data security practices) of other organizations, such as Facebook, Apple, Google, Microsoft, RIM or any other app developer, app provider, social media platform provider, operating system provider, wireless service provider or device manufacturer, including any Personal Information you disclose to other organizations through or in connection with the Service.

  8. Data Retention.

    We will retain your Personal Information for as long as needed to provide the applicable Service you use, unless a longer retention period is required or permitted by law.

  9. Security of Your Information.

    The security of Personal Information is a high priority at Midnight Ride Technologies. We maintain our Service and all associated data with technical, administrative and physical safeguards to protect against loss, unauthorized access, destruction, misuse, modification and improper disclosure. Unfortunately, no data transmission or storage system can be guaranteed to be 100% secure. If you have any questions about the security of your interaction with us (if, for example, you feel that the security of any account you might have with us has been compromised), you can contact us at support@nxtopen.com

  10. Use of Service By Minors.

    The Service is not directed to individuals under the age of thirteen (13), and we request that these individuals do not provide Personal Information through the Service.

  11. Cross-Border Transfer.

    The Service is controlled and operated by us from the United States, and is not intended to subject us to the laws or jurisdiction of any state, country or territory other than that of the United States. Your Personal Information may be stored and processed in any country where we have facilities or in which we engage service providers, and by using the Service you consent to the transfer of information to countries outside of your country of residence, including the United States, which may have different data protection rules than those of your country.

  12. Sensitive Information.

    We ask that you not send us, and you not disclose, any sensitive Personal Information (e.g., Social Security numbers, information related to racial or ethnic origin, political opinions, religion or other beliefs, health, biometrics or genetic characteristics, trade union membership or criminal background) on or through the Service or otherwise to us, except where explicitly requested.

  13. Changes to This Privacy Policy.

    Midnight Ride Technologies reserves the right to change this Privacy Policy. Please take a look at the “Last Updated” legend at the top of this page to see when this Privacy Policy was last revised. Any changes to this Privacy Policy will become effective when we post the revised Privacy Policy on the Service. Your use of the Service following these changes means that you accept the revised Privacy Policy.

Terms of Service

Thank you for choosing NextOpen. When you use our products and services you’re agreeing to our terms, so please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations.

NextOpen provides online business management software services ("Software Service"). You can access our Software Service via the login page on our Website or from our widget on your website.

These Terms of Service ("Agreement") apply to any use of and access to our Software Service or Website (collectively, "Services") by you. By accessing or using the Services, you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.

1. General Terms.

1.1. Agreement. This Agreement is a binding legal agreement between you and NextOpen ("NextOpen", "we", "us" or " our"). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity to this Agreement, and all references to "you" and "your" in this Agreement are referring to that entity. You and NextOpen are also sometimes referred to in this Agreement individually as a "Party" and collectively as the " Parties". You also agree to our Privacy Policy.

Our Privacy Policy explains how we collect and use information that’s submitted to the Services. By using the Services, you are indicating that you’ve read the Privacy Policy and agree to its terms.

This Agreement applies to any use of the Services, whether in connection with a paid subscription or a free trial.

1.2. Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to our Website, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing support@nxtopen.com It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement that’s posted on our Website.

2. Services.

2.1. Access and Service Levels. NextOpen will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement.

2.2. Changes to Services. Notwithstanding Section 2.1, in addition to our rights set forth in Section 8.4, we reserve the right to suspend any Services (a) during planned downtime as provided in the SLA, (b) in connection with a Force Majeure event (as described in Section 14.8), or (c) if we believe any malicious software is being used in connection with your account. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.

2.3. Trial and Beta Services. NextOpen may in its sole discretion offer trial services or beta services from time to time at no charge. Any trial or beta services are provided "AS IS" with no warranties of any kind. NextOpen may discontinue any trial or beta services at any time, with or without notice and without any further obligations to you. NextOpen will have no liability for any harm or damages suffered by you or any third party in connection with any trial or beta services.

3. Your Responsibilities.

3.1. Liability. You are responsible for all activity occurring under your account. You will ensure that you comply with all of the provisions of this Agreement and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your "access" or "use" of Services (or similar phrase) is deemed to include access or use by you, and any act or omission that does not comply with this Agreement will be deemed a breach of this Agreement by you.

3.2. Data; Unauthorized Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify NextOpen promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.

3.3. Restrictions on Use. You will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (ix) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, NextOpen grants to the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. NextOpen reserves the right to revoke these permissions at any time and without notice.

3.4. Cardholder Data. You are solely responsible for any liability resulting from your handling of Cardholder Data. You agree that you will comply with PCI DSS anytime the Services are used to process credit cards.

3.5. User Names and Passwords. NextOpen may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of NextOpen. You, and not NextOpen, are responsible for any use or misuse of user names or passwords associated with your account.

4. Fees and Payment.

4.1. Software Services Fees. Fees for the subscribed Software Services ("Subscription Fees") are set forth on our website, which may be updated by NextOpen from time to time, or as otherwise stated on the registration page.

4.2. Payment Terms. You agree to pay NextOpen the Subscription Fees and any other applicable fees stated on our website or otherwise specified in this Agreement. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on the registration page, fees must be paid in advance of each billing period. You will provide NextOpen with valid and updated credit card information or another form of payment acceptable to NextOpen. If you provide credit card information, you represent that you are authorized to use the card and you authorize NextOpen to charge the card for all payments hereunder. By submitting payment information, you authorize NextOpen to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by NextOpen for purposes of acknowledging or completing any payment.

4.3. Changes in Fees. Upon notice to you, NextOpen may increase any fees specified on the registration page, provided the increase will not become effective until the expiration of the current Subscription Term. NextOpen may increase any fees that are not specified on the registration page at any time, with or without notice to you.

4.4. Payment Errors. If you believe a payment has been processed in error, you must provide written notice to NextOpen within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by NextOpen within such thirty (30) day period, the payment will be deemed final.

4.5. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If NextOpen is legally required to pay or collect any Taxes on your behalf, NextOpen will invoice you and you will pay the invoiced amount. For clarity, NextOpen will be solely responsible for taxes assessed on NextOpen based on its income.

5. Intellectual Property Rights.

5.1. NextOpen Intellectual Property. NextOpen owns all right, title and interest in and to the Services, the NextOpen Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, NextOpen reserves all rights, title and interest in and to the Services, the NextOpen Data and Aggregated Data, including, without limitation, all related intellectual property rights. NextOpen’s service marks, logos and product and service names, including, without limitation, NextOpen and any related marks (the "NextOpen Marks") are owned by NextOpen. You agree not to display or use any NextOpen Marks in any manner without NextOpen’s express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.

5.2. License Grant to You. Subject to the terms and conditions of this Agreement, NextOpen hereby grants to you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license and right to use the Services set forth on the registration page, during the Subscription Term and solely for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by NextOpen in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.

5.3. License Grant to NextOpen. You hereby grant to NextOpen and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license (a) to modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you relating to the Services or NextOpen’s business; and (b) to use your business name(s), trademarks, service marks or logos (collectively, "Your Marks") in connection with providing the Services and for marketing and promotional purposes in connection with NextOpen’s business. NextOpen agrees that any use by NextOpen of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to NextOpen herein, all right, title and interest in and to Your Marks are expressly reserved by you.

6. Data Ownership and Use.

6.1. Your Data. As between you and NextOpen, you own all right, title and interest in Your Data. You hereby grant to NextOpen a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing NextOpen’s products and services and/or complementary products and services of our partners. You represent and warrant to NextOpen that you have all rights necessary to grant the licenses in this Section 6.1, and that your provision of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.

6.2. NextOpen Data. Notwithstanding Section 6.1, all right, title and interest in any data or information collected by NextOpen independently and without access to, reference to or use of any of Your Data, will be solely owned by NextOpen (collectively, "NextOpen Data").

6.3. Aggregated Data. NextOpen will own all Aggregated Data. You agree that nothing in this Agreement will prohibit NextOpen from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you.

6.4. Personal Information. Our Privacy Policy governs how we collect and use personal information that is submitted through the Services. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy.

6.5. Protection and Security. During the Subscription Term, NextOpen will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data.

6.6. 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. 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.

6.7. Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership 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 NextOpen has no obligation whatsoever to resolve or intervene in such disputes.

7. Confidential Information.

7.1. A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 7 will restrict NextOpen with respect to NextOpen Data or Aggregated Data.

8. Term, Termination and Suspension.

8.1. Term. Unless otherwise specified on the registration page, the term of this Agreement will be month to month ("Subscription Term"). The Subscription Term commences on the Effective Date and will automatically renew on a monthly basis until either Party terminates in accordance with this Agreement. Either Party may terminate the Agreement at any time, for any reason or no reason, by providing notice to the other Party. Unless otherwise specified on the registration page, Subscription Fees during any automatic renewal term will revert to the current pricing in effect at the time such renewal term commences.

8.2. Termination for Cause. NextOpen may terminate this Agreement, effective immediately upon notice to you, if you are in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe NextOpen, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to NextOpen for the period prior to the effective date of termination.

8.3. Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) all registrations will automatically terminate and be of no force or effect; (b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, NextOpen will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law. Upon request by you within thirty (30) days following termination of this Agreement, and provided that you have paid NextOpen all amounts owed under this Agreement, NextOpen will make Your Data available to you through NextOpen’s standard web services for a period of up to thirty (30) days after receipt of such notice. After such thirty (30) day period, NextOpen will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require NextOpen’s assistance in retrieving Your Data, additional fees may apply. The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.3, 2.6, 3, 4 (other than Section 4.1), 5, 6, 7, 8.2, 8.3, 9.1, 9.3, 10, 11, 12, 13, and 14.

8.4. Right to Terminate or Suspend Services. We may suspend or terminate the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to NextOpen or any third party, or (b) that we are required to do so by law.

9. Warranties & Disclaimer.

9.1. Accuracy of Your Account Information. You agree to provide NextOpen with complete and accurate account information, including your legal company name, street address, e-mail address, and such other contact information as may be requested by NextOpen. You are responsible for keeping your account information up to date, and you agree to promptly notify NextOpen in writing if any information changes.

9.2. Warranty of Functionality. NextOpen warrants to you that during a Subscription Term: (a) the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and (b) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that NextOpen will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If NextOpen is unable to restore such functionality, you may terminate the Agreement by providing written notice to NextOpen, and you will be entitled to receive a pro-rata refund of any pre-paid fees. NextOpen will have no obligation with respect to a warranty claim under this Section 9.2 unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any trial or beta services.

9.3. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEXTOPEN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. NEXTOPEN DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 9.2, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH NEXTOPEN AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE "NEXTOPEN PARTIES").

10. Indemnification.

10.1. You agree to indemnify, defend, and hold harmless the NextOpen Parties 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) 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.

11. Limitations and Exclusions of Liability.

11.1. NEXTOPEN EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY NEXTOPEN. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE NEXTOPEN PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH NEXTOPEN AND THE NEXTOPEN PARTIES. IN NO EVENT WILL ANY NEXTOPEN PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF NEXTOPEN, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. Intellectual Property Policy.

12.1. NextOpen respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted in accordance with our Intellectual Property Policy accessible on our website, which may be updated by NextOpen from time to time. Any data or information submitted to the Services is subject to our Intellectual Property Policy.

13. Miscellaneous.

13.1. Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Massachusetts without regard to conflicts of laws principles. The U.N. Convention on the International Sale of Goods will not apply.

13.2. Mandatory Informal Dispute Resolution. If you have any dispute with NextOpen arising out of or relating to this Agreement, you agree to notify NextOpen in writing with a brief, written description of the dispute and your contact information, and NextOpen will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.

13.3. Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND NEXTOPEN, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 14.2 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND NEXTOPEN AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures (currently accessible at www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004130 ) as amended by this Agreement. Any arbitration hearing will be held in Middlesex County, Massachusetts. The applicable governing law will be as set forth in Section 14.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

13.4. Entire Agreement. This Agreement, together with any registrations 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 NextOpen with respect to the subject matter hereof. In the event of a conflict between the registration page and this Agreement, the registration page will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between NextOpen, on the one hand, and you, on the other hand.

13.5. Waiver and Severability. No waiver of any provision of this Agreement by NextOpen will be effective unless in writing and signed by NextOpen. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

13.6. Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without NextOpen’s prior written consent. NextOpen may assign, transfer or sublicense any or all of NextOpen’s rights or obligations under this Agreement without restriction.

13.7. Notices. Any notices provided by NextOpen under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from NextOpen 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 NextOpen under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to Midnight Ride Technologies, Attn: NextOpen Customer Support, PO Box 263, Lexington, MA 02420.

13.8. Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving NextOpen’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

13.9. Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

13.10. Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and NextOpen.