Interpretation and Definitions:
The words of which the initial letter is capitalized and are in bold font have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.
(c) “Authorized User” shall mean any individual Authorized Subscriber or Registered Client User who has registered on the Service and who has been added to the account as an authorized user.
(d) “Confidential Information” shall mean the Content (as defined in Section 1(e)) and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, priority assessment models, decision trees, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party’s premises.
(e) “Content” shall mean any information you upload to the Service and any information provided by you to NextLevel™ Mediation in connection with the Service, including, without limitation, information about your Registered Client Users, Questionnaires, Questionnaire responses, Notes, Assessment Models, Risk Assessment Models, Decision Trees.
(f) “Authorized Subscriber or Service Provider” shall mean the Subscriber who initiated the Services offered by NextLevel™ Mediation and is registered on the Service as a “Mediator, Attorney, or Consultant”, and is assumed by NextLevel™ Mediation to have the sole authority to register Client Users.
(g) “Registered Client User” means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client of an Authorized Subscriber.
(h) “Service” shall mean any software or services provided by NextLevel™ Mediation, including but not limited to D2S Portal and FreshDesk customer relationship management (CRM) software.
(i) “Security Emergency” shall mean a violation by a Subscriber or Client User of this Agreement that (a) could disrupt (i) NextLevel™ Mediation’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third party access to the Service.
2.Limited License & Use of the Service
2.1 Authorized User is granted a non-exclusive, non-transferable, limited license to access and use the Service.
2.2 NextLevel™ Mediation does not review or pre-screen the Content unless specifically granted by the Subscriber.
2.3 Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”), Angular Modules or any visual design elements without the express written permission from NextLevel™ Mediation.
2.4 Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website or web application so as to falsely imply that it is associated with the Service, NextLevel™ Mediation, or any other software or service provided by NextLevel™ Mediation.
2.5 Authorized Users agree that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
2.6 Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
2.7 Except for the non-exclusive license granted pursuant to this Agreement, Authorized User acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with NextLevel™ Mediation.
2.8 Authorized Subscribers who configure the Service to share or make available certain Content to their Registered Client Users, are deemed to acknowledge and agree that it is the responsibility of the Authorized Subscriber to determine if the Service being shared is appropriate for each Registered Client User.
2.9 NextLevel™ Mediation reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that NextLevel™ Mediation shall provide Subscriber with 30-days’ notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Authorized User’s acceptance of the modification.
2.10 NextLevel™ Mediation reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two business days’ notice prior to any such suspension. Such notice shall be provided to you in advance through by way of notification within the Service, email or other notification method deemed appropriate by NextLevel™ Mediation. Further, NextLevel™ Mediation shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, NextLevel™ Mediation will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
2.11 NextLevel™ Mediation stores all Content on Microsoft™ Azure redundant storage cloud servers.
2.12 Authorized User grants to NextLevel™ Mediation a non-exclusive, royalty-free right during Authorized User’s use of the Service, to use the Confidential Information for the sole purpose of performing NextLevel™ Mediation obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for NextLevel™ Mediation to generate and publish aggregate, anonymized reports on system usage and trends and type, provided they do not conflict with Section 4.1.
2.13 NextLevel™ Mediation uses one codebase for all jurisdictions. Authorized Subscriber is required, using settings available within the Service, to configure the Service for its own jurisdiction and to verify that the settings meet the Authorized Subscriber’s requirements.
3.Access to the Service
3.1 Authorized User is only permitted to access and use the Service if he/she is a Authorized Subscriber or a Registered Client User. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.
3.2 Each Authorized User will be provided with a unique identifier to access and use the Service (“Email Address”). The Email Address shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
3.3 NextLevel™ Mediation shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if NextLevel Mediation has been advised of the possibility of such damages), resulting from any use of the Service.
4.1 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
4.3 Each Authorized User, whether Registered Client User or Authorized Subscriber understands and agrees to the strict confidentiality of any mediation or consultation and all data and communications associated therewith. Mediation and consultation discussions, emotional and priority assessments by the system, correspondence, any draft resolutions, and any unsigned agreements shall not be admissible in any court proceeding or other contested proceeding. Only an Agreement signed by all parties may be so admissible. For more specific information on the confidentiality of information, please confer with your counsel and the mediator. The Authorized User further agrees not to call, subpoena or otherwise summon any person or representative of NextLevel™ Mediation, LLC to testify concerning any mediation or consultation or to provide any materials from the mediation or consultation in any court proceeding between the parties.
5.Security and Access
5.1 NextLevel™ Mediation is responsible for providing a secure method of authentication and accessing its Service (see NextLevel™ Mediation Security Policy). NextLevel™ Mediation will provide mechanisms that:
- allow for user password management
- transmit passwords in a secure format
- protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.
5.2 Each Authorized User will be responsible for protecting the security of usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.
5.3 Each Authorized User will implement policies and procedures to prevent unauthorized use of usernames and passwords and will promptly notify NextLevel™ Mediation upon suspicion that a username and password has been lost, stolen, compromised, or misused.
5.4 At all times, NextLevel™ Mediation, and any third-party vendors and hosting partners it utilizes to provide the Service, will:
- use information security best practices for transmitting and storing your Content, adhering to industry standards.
- employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management.
- ensure its host facilities maintain industry standards for security and privacy
5.5 In the event of a Security Breach, NextLevel™ Mediation shall (a) cooperate with Authorized User to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Authorized User in investigating and preventing the recurrence of the Security Breach.
6.EU Data Protection
7.1 NextLevel™ Mediation maintains that its primary duty is to protect the Content to the extent the law allows. NextLevel™ Mediation reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
If NextLevel™ Mediation is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then NextLevel™ Mediation will provide Authorized User with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Authorized User may seek a protective order or other appropriate relief. Subject to the foregoing sentence, NextLevel™ Mediation may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
8.Managed Backup and Archiving
8.1 NextLevel™ Mediation’s managed backup services are provided by Microsoft Azure and are designed to facilitate restoration of Content to the host servers in the event the primary data is lost or corrupted. NextLevel™ Mediation shall ensure recovery of lost or corrupted Content at no cost to you. Following any cancellation or termination of Service for any reason, Subscriber shall have ninety days to retrieve any and all Content.
9.Payment, Refunds, and Subscription Changes
9.1 Authorized Subscribers with paid subscriptions will provide NextLevel™ Mediation with a valid credit card for payment of the applicable subscription fees. All subscription fees are exclusive of all federal, state, provincial, municipal, or other taxes which Authorized Subscribers agree to pay based on where the Authorized Subscriber is located.
9.2 Authorized Subscribers with monthly paying subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions cancelled prior to the expiration of any trial period, will not be charged. Monthly Authorized Subscribers will thereafter be charged in advance each 30 days. Annual Authorized Subscribers will thereafter be charged annually on the anniversary date of the initial subscription charge. All charges are final and non-refundable, including payments made by Authorized Subscribers, setup fees, and other professional services charges.
9.3 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of an Authorized Subscriber.
9.4 There are no charges for cancelling a subscription and paying subscriptions cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.
9.5 The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades, and including the addition or removal of discounts included for the purchase of services. Adding Authorized Subscriber subscriptions or subscription upgrades will trigger prorated charges in the current billing cycle. Authorized Subscriber authorizes NextLevel™ Mediation to apply updated charge amounts. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
9.6 All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Authorized Subscriber, or in the form of an announcement on the Service.
9.7 Authorized Subscriber is responsible for paying all taxes associated with the subscription to the Service. If NextLevel™ Mediation has the legal obligation to pay or collect taxes for which Authorized Subscriber is responsible under this section, the appropriate amount shall be charged to and paid by Authorized Subscriber, unless Authorized Subscriber provides NextLevel™ Mediation with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.8 Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Authorized Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, NextLeve™l Mediation receives an amount equal to the sum it would have received had no such deduction or withholding been made.
10.Cancellation and Termination
10.1 NextLevel™ Mediation in its sole discretion has the right to suspend or discontinue providing the Service to any Authorized Subscriber without notice for actions that are (a) in material violation of this Agreement and (b) create a Security Emergency.
10.2 If (i) Authorized Users use the Service to materially violate this Agreement in a way that does not create a Security Emergency; (ii) NextLevel™ Mediation provides Authorized Subscriber with commercially reasonable notice of this violation; (iii) NextLevel™ Mediation uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to NextLevel™ Mediation’s reasonable satisfaction within thirty (30) days of such notice, then NextLevel™ Mediation reserves the right to suspend access to the Service.
10.3 As required by Section 8 above (“Managed Backup and Archiving”), upon cancellation or termination of a subscription, Content is made available to the Administrator or a designated Authorized User. Following a period of no less than ninety (90) days from the cancellation or termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Service.
11.Limitation of Liability
11.1 Except in the case of a violation by NextLevel™ Mediation of its obligations under Section 4 above (“Confidentiality”), Section 5 above (“Security and Access”), and Section 8 above (“Managed Backup and Archiving”), and except as provided in Section 13.2 below (“Indemnification”), NextLevel™ Mediation shall not be liable for and Authorized Subscribers waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to Authorized User by NextLevel™ Mediation.
11.2 AUTHORIZED SUBSCRIBER AGREES THAT THE LIABILITY OF NEXTLEVEL™ MEDIATION ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID FOR THE SERVICE PURSUANT TO THE AGREEMENT WITHIN THE SIX MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. SUBSCRIBER FURTHER AGREES THAT NEXTLEVEL™ MEDIATION IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER NEXTLEVEL™ MEDIATION HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ARE NOT APPLICABLE TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 13.2. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY NEXTLEVEL™ MEDIATION TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
11.3 As Authorized User will solely be responsible for any damage and/or loss of Content contained in Authorized User's technology which occurs as a result of Authorized User's electronic equipment and/or computer system.
12.Disclaimer of Warranties
12.1 NEXTLEVEL™ MEDIATION HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY NEXTLEVEL ™MEDIATION NOTHING IN THIS SECTION 12.1 SHALL MODIFY NEXTLEVEL™ MEDIATION’S OBLIGATION TO INDEMNIFY AUTHORIZED SUBSCRIBER AS REQUIRED BY SECTION 13.2(A) OF THIS AGREEMENT (“INDEMNIFICATION”).
12.2 NextLevel™ Mediation makes no warranty that its services when provided to Authorized Subscriber in digital or electronic format will be compatible with Authorized Subscriber computer and/or other equipment, or that these Services will be secure or error free. Nor does NextLevel™ Mediation make any warranty as to any results that may be obtained from the use of the Service. Nothing in this Section 12.2 shall modify NextLevel™ Mediation’s obligations under Section 4 above (“Confidentiality”) or Section 5 above (“Security and Access”) or NextLevel™ Mediation’s obligation to indemnify you as required by Section 13.2(b) of this Agreement (“Indemnification”).
12.3 NextLevel™ Mediation hereby disclaims all warranties of any kind related to Authorized Subscriber’s hardware or software beyond the warranties provided by the manufacturer of Authorized Subscriber’s hardware or software.
13.1 Authorized Subscriber hereby agrees to indemnify and hold harmless NextLevel™ Mediation from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following:
- Authorized Users’ breach of any obligation stated in this Agreement, and
- Authorized Users’ negligent acts or omissions.
NextLevel™ Mediation will provide prompt notice to Authorized Subscriber of any indemnifiable event or loss. Authorized Subscriber will undertake, at Authorized Subscriber's own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to NextLevel™ Mediation. NextLevel™ Mediation reserves the right to participate in the defense of the claim, suit, or proceeding, at NextLevel™ Mediation expense, with counsel of NextLevel™ Mediation’ choosing.
14.1 Technical support and training are available to Authorized Subscribers, and is available by telephone, email or electronic support ticket.
14.2 Authorized Subscriber acknowledges and agrees that NextLevel™ Mediation may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
14.3 Authorized User acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Authorized User agrees to accept that risk and will not hold NextLevel™ Mediation liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only NextLevel™ Mediation, with strict business reasons, may access and transfer the Content and only to provide Authorized User with the Service. NextLevel™ Mediation will make reasonable efforts to provide notice to Authorized Userr prior to such access and transfer. NextLevel™ Mediation actions will comply with its obligations under Sections 4 and 5 of this Agreement.
14.4 The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
14.5 This Agreement constitutes the entire agreement between Authorized Users and NextLevel™ Mediation and governs Authorized User’s use of the Service, superseding any prior agreements between Authorized Users and NextLevel™ Mediation (including, but not limited to, any prior versions of this agreement).
14.6 NextLevel™ Mediation reserves the right to amend this Agreement. In the event of material changes to the Agreement, NextLevel™ Mediation will notify Authorized Subscribers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Authorized Subscribers after reasonable notice will be considered acceptance of any new terms.
14.7 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
14.8 Governing Law and Venue. This Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of the State of Florida and subject to the exclusive jurisdiction of the federal and state courts located in Broward County, Florida.