Terms of Service

This Software as a Service Agreement is a contract between you (the “Customer”) and us, Nestify Internet, Inc. (the “Company”), for your use of web hosting and associated services. (the “Service”). Please read this agreement carefully. It contains important terms that affect you and your use of the Service. By using the Service, you agree to be bound by the terms of this agreement, including the disclaimers. If you do not agree to these terms, do not use the Service. This agreement begins immediately on signup, and will continue until all subscriptions are terminated.

If the parties have a fully executed agreement that covers the Service that agreement supersedes this agreement.

1. Grant of License to Access and Use Service. Company hereby grants to Customer, including to all Customer’s Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the Nestify Platform (the “Service”) solely for Customer’s internal business operations (the “Platform”), according to Company’s terms and policies listed at https://nestify.io/terms-of-service/.

2. Support Services

2.1. Initial Support. For the [1] month period beginning on the Effective Date, and at Company’s own expense, Company shall provide Customer with

(a) chat or electronic support during Company’s normal business hours in order to help Customer locate and correct problems with the Service and any related software, and

(b) internet-based support system generally available seven days a week, twenty-four hours a day.

2.2. Renewed Support. After the initial [1] month support period, Customer may elect to renew Company’s support services under this paragraph for additional [1] month periods, at Company’s then-current service rates.

3. Service Levels

3.1. Applicable Levels. Company shall provide the Service to Customer with a System Availability of at least 99.5% during each calendar month.

3.2. System Maintenance. Company may

(a) take the Service offline for scheduled maintenances that it provides Customer the schedule for in writing (though this scheduled maintenance time will not count as System Availability), and

(b) change its schedule of maintenances on [one] month written notice to Customer.

3.3. System Availability Definition

(a) Percentage of Minutes per Month. “System Availability” means the percentage of minutes in a month that the key components of the Service are operational.

(b) Not Included in “System Availability. “System Availability” will not include any minutes of downtime resulting from

(i) scheduled maintenance,

(ii) events of force majeure,

(iii) malicious attacks on the system,

(iv) issues associated with Customer’s computing devices, local area networks or internet service provider connections, or

(v) Company’s inability to deliver services because of Customer’s acts or omissions.

4. Publicity

4.1. Consent. Company may use Customer’s name, logo, or trademarks, or issue any press release or public announcement regarding this agreement, without the other party’s written consent, unless specifically permitted under this agreement or required by Law.

5. User Obligations

5.1. Hardware Obligations. Customer shall be responsible for

(a) obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and

(b) paying all third party access charges incurred while using the Service.

5.2. Anti-Virus Obligations. Customer shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively “Viruses”).

5.3. Customer’s Use of Services. Customer shall

(a) abide by all local and international Laws and regulations applicable to its use of the Service,

(b) use the Service only for legal purposes, and

(c) comply with all regulations, policies and procedures of networks connected to the SaaS.

6. Restricted Uses. Customer will not

6.1. upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service,

6.2. modify, disassemble, decompile or reverse engineer the Service,

6.3. probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service,

6.4. take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service,

6.5. copy or reproduce the Service,

6.6. access or use any other clients’ or their users’ data through the Service,

6.7. maliciously reduce or impair the accessibility of the Service,

6.8. use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or

6.9. transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability.

7. Ownership of Intellectual Property.

Company will retain all interest in and to the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property rights in connection with the Service, including Company’s name, logos. and trademarks reproduced through the Service.

8. Termination

8.1. Termination on Notice. Either party may terminate this agreement for any reason on 1 business days’ notice to the other party.

8.2. Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if

(a) the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and

(b) the failure, inaccuracy, or breach continues for a period of 7 Business Days’ after the injured party delivers notice to the breaching party reasonably detailing the breach.

8.3. Termination for Failure to Pay. Company may terminate this agreement with immediate effect by delivering notice of the termination to Customer if Customer fails to pay the monthly Subscription Fee on time 2 times over any 12-month period.

9. Effect of Termination

9.1. Refund Amounts. Company shall not provide any refund unless the subscription is terminated within 60 calendar days after signup.

9.2. Pay Outstanding Amounts. Customer shall immediately pay to Company all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.

9.3. Discontinuance of Use. Customer shall cease all use of the Service upon the effective date of the termination.

9.4. Recovery of Data. Customer will have 2 days from the date of termination to retrieve any of data that Customer wishes to keep.

10. Indemnification

10.1. Indemnification by Company.

(a) Indemnification for Infringement Claims. Subject to exclusions, Company (as an indemnifying party) shall indemnify Customer (as an indemnified party) against all losses and expenses arising out of any proceeding

(i) brought by a third party, and

(ii) arising out of a claim that the Services infringe the third party’s Intellectual Property rights.

(b) Qualifications for Indemnification. Company will be required indemnify Customer only if

(i) Customer’s use of the Services complies with this agreement and all documentation related to the Services,

(ii) the infringement was not caused by Customer modifying or altering the Services or documentation related to the Services, unless Company consented to the modification or alteration in writing, and

(iii) the infringement was not caused by Customer combining the Services with products not supplied by Company, unless Company consented to the combination in writing.

10.2. Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding

(a) brought by either a third party or an indemnified party, and

(b) arising out of the indemnifying party’s willful misconduct or gross negligence.

10.3. Notice and Failure to Notify

(a) Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall

(i) notify the indemnifying party of the indemnifiable proceeding, and

(ii) deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.

(b) Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.

10.4. Exclusive Remedy. The parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section.

11. Limitation on Liability

11.1. Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.

11.2. Maximum Liability. Company’s liability under this agreement will not exceed the fees paid by Customer under this agreement during the 12 months preceding the date upon which the related claim arose.

11.3. Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,

(a) represent the final expression of the parties’ intent relating to the subject matter of this agreement,

(b) contain all the terms the parties agreed to relating to the subject matter, and

(c) replace all of the parties’ previous discussions, understandings, and agreements relating to the subject matter of this agreement.

11.4. Amendment. Company may amend the terms and conditions of this agreement at any time by reasonable notice, including without limitation by posting revised terms on its website at the URL https://scaledynamix.com/terms-of-service/.

11.5. Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent.

11.6. Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the State of Texas, without regard to its conflict of laws rules.

11.7. Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

11.8. Waiver

(a) Affirmative Waivers. Neither party’s failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party’s rights.

(b) Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.

(c) No General Waivers. A party’s failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.

(d) No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.

11.9. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.