Revision: 01-01-2024

Update Note: [Last updated: January 1, 2024]

Next Method updated the Next Method Terms and Conditions on January 1, 2024. These changes will be effective February 1, 2024, to Clients who signed up for Next Method service before January 1, 2024.

 

1.   TERMS AND CONDITIONS OUTLINE

THESE ONLINE TERMS AND CONDITIONS, together with any project proposal, service agreement, purchase of equipment or software or related service, operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time (collectively, the “Agreement”), constitutes the entire agreement between Next Method, LLC., a Wisconsin company (hereinafter referred to as “we,” “us” or “Next Method”) and the party set forth in the related order form or agreement (herein after referred to as “you,” or “Client”) regarding Next Method’ s Services (as defined herein), and supersedes all prior agreements, discussions and writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “Next Method” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services to you in connection with this agreement. Next Method and Client may be individually referred to as a “Party” or collectively as the “Parties.”

 

ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES THE CLIENT’S ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: [1] ACCEPTING THE TERMS AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS, [2] SIGNING A SUPPORT AGREEMENT OR SERVICE AGREEMENT, [3] SIGNING ELECTRONICALLY OR WET INK SIGNATURE ON ANY NEXT METHOD ORDER FORM .[4] SELECTING “I Accept” or “I Agree” DURING ANY NEXT METHOD FORM COMPLETION. THROUGH THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.

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Each person agreeing to these terms represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.

 

Next Method provides services and equipment intended solely for business use, pursuant to the terms and conditions set forth in this Agreement and on the condition that Client accepts and complies with this Agreement. By electronically or wet ink signing this Agreement, Client (a) accepts this agreement and agrees that Client is legally bound by its terms; and (b) represents and warrants that: (i) its representative is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Client does not agree to the terms of this agreement, neither Client nor its End Users may download, install, or use the services or equipment.

 

2.  SERVICES

2.1 The Provider offers VoIP phone services that enable voice communication over the internet. The Service may include features such as voice calls, voicemail, call forwarding, and other related functionalities, as specified in your subscription plan.

2.2 The Service requires a stable, high-speed internet connection, which is not provided by the Provider unless explicitly stated in your plan.

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3.  TERM AND TERMINATION

3.1 Term. This Agreement shall commence on the Effective Date and continue for an initial term of 1-Month ("Initial Term"), unless terminated earlier as provided herein. Upon expiration of the Initial Term, Services will automatically renew for successive periods of the same length as the Initial Term (each a “Renewal Term”) unless either Party gives notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or the Renewal Term.

3.2 Termination for Convenience. Either Party may terminate this Agreement with 30 days’ written notice after the Initial Term. 

3.3 Termination for Cause. Either party may terminate the Agreement upon thirty (30) days notice if the other party materially breaches the terms and conditions of the Agreement and the other party fails to cure the default within the 30-day period, including, but not limited to, Customer’s failure to pay Next Method’s invoices for the Services when due. If Customer terminates the Agreement after Next Method’s material breach, then Customer will be responsible for (i) charges for the period before the date of termination and (ii) all remaining installment payments for the equipment that Customer purchased from Next Method via an installment payment purchase as provided in the related Equipment Addendum.

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3.4 Client Voluntary Cancellation. You may cancel the Services upon thirty (30) days prior notice by emailing a cancellation request to AccountManager@NextMethodMSP.com. Next Method will provide you with email confirmation of both your request to cancel Services and the actual cancellation of Services. FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS PROCESS WILL RESULT IN ONGOING SERVICE FEES. You will not receive any refund or partial refund or any credits for any charges already billed to your account. If you have a remaining balance in your prepaid customer account, it will be refunded to your method of payment currently on file.

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3.5 Termination by Customer Before Installation. If Customer elects to terminate the Agreement or any orders for Services before Services are installed and available for Customer’s use, it must do so in writing, and will pay to Next Method as a pre-installation charge an amount equal to all that apply:

(1) The full price of any materials or solutions ordered that are not eligible for full refund

(2) Any penalties assessed by third parties resultant of the termination

(3) Damages incurred by Next Method that are resultant of the termination

3.6 Effect of Termination. Upon termination, Client shall pay Provider for all Services rendered up to the termination date. Provider shall assist in transitioning services to Client or a new provider, subject to additional fees as agreed upon. 

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4.  FEES AND PAYMENT

4.1 All prices are identified in US dollars on the website or Administrative Portal. Additional charges may result if Customer activates additional features, exceeds usage thresholds, or purchases additional Services or equipment. Customer will be liable for all charges resulting from use of the Services on its Account.

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4.2 Recurring charges for the Services begin on the Start Date, and will continue for the Term. Recurring charges (such as charges for Digital Lines, product licenses, minute bundles, and equipment rental fees) will, once incurred, remain in effect for the Initial Term (as described in an Order Form) or the then-current Renewal Term. Next Method will provide notice of any proposed increase in such charges no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term, and any such increase will be effective on the first day of the next Renewal Term. Administrative Fees that Next Method is entitled to pass on to its customers as a surcharge pursuant to applicable Law may be increased on thirty (30) days’ written notice.

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4.3 Outbound calling rates will be applied based on the rate in effect at the time of use. Customer may locate the currently effective rates on the Next Method Website found at https://nextmethodmsp.com/VoipRateCard.

4.4 Invoicing and Payment Terms. Provider will invoice Client 1 Month in advance. Payment is due within 30 days of the invoice date. Late payments may incur a fee of 1.5% per month on the outstanding balance or the maximum rate permitted by law, whichever is lower. 
4.5 Taxes. Client is responsible for all applicable taxes, excluding taxes based on Provider’s income. 

4.6 Price Changes: The Provider reserves the right to modify pricing with [30 days] prior notice. Continued use of the Service after such notice constitutes acceptance of the new pricing.

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5.  GENERAL COVERAGE EXCLUSIONS

In addition to other limitations and conditions set forth in this Agreement, this agreement does not cover any work, services, products, licenses, costs, or fees unless explicitly detailed herein.  Any and all out of scope requests, services, or costs must be defined in a separate agreement or contract and are subject to the terms, conditions, and fees detailed that agreement”.

 

This Agreement does not cover any costs, expenses, or fees not detailed herein.  Some uncovered costs include but are not limited to:
 

1. The cost of any IT Assets, replacement parts, equipment, or shipping charges of any kind not covered in this agreement. 

2. The cost of any software upgrades, renewals, or licenses not included in this agreement.

3. The cost of any 3rd Party Vendor or manufacturer’s support, service fees, incident fees, assurance fees.

4. The cost of any and all IT Assets classified as consumables.  (toner, ink, service kits, etc.)

5. Service, repair, and support made necessary by the alteration or modification of equipment other than that authorized by the Service Provider, including but not limited to configuration adjustments, software installations, upgrades, or any modifications of IT Assets made by anyone other than the Service Provider.

6. Any and all service, maintenance, and support for IT Assets not covered by an existing agreement including but not limited to software, hardware, or infrastructure.

7. Travel to and from uncontracted client destinations

8. Restoration of lost data caused by inadequate backups, uncovered or unsupported backups, systems/hardware failure is outside the scope of this agreement.

9. Data is not covered and is always considered outside the scope of this agreement. 

 

IT Services and support can experience issues with software, applications, hardware, and other IT Assets that are unexpected and costly or excessively timely to address.  In the event that a timely and/or economical repair is not possible the Service Provider will recommend a work-around, a replacement, an additional service, or project to alleviate the issue.  The recommendation the Service Provider offers will only be covered by this Agreement if defined explicitly herein and may incur fees or other out of scope charges to be mutually agreed on by the Service Provider and the Client before work is completed. 

 

6.   CLIENT DATA AND ASSET RESPONSIBILITY

Provider shall perform the Services with reasonable care, skill, and diligence in accordance with industry standards. Provider will maintain appropriate technical and organizational measures to protect Client data.

 

Unless contracted otherwise in a Managed Services Agreement you are solely responsible for maintaining suitable equipment, including your computers, backup systems, servers, printers, firewalls, security, phones and software, including any necessary system or software upgrades, patches or other fixes which are or may become necessary. Next Method may make recommendations for upgrading systems, software and applications but it is solely up to the client to act on those recommendations in a timely manner. Contracting Next Method on a time and materials basis for projects, monthly engineering visits does not imply we are taking responsibility for your network or infrastructure.

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7.   USE OF SERVICE​

7.1 Acceptable Use: You agree to use the Service in compliance with all applicable laws and regulations. Prohibited activities include, but are not limited to, fraud, harassment, spamming, or transmitting malicious code.

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Notwithstanding anything to the contrary in this Agreement, Next Method may act immediately and without notice to suspend or limit the Services if Next Method reasonably suspects fraudulent or illegal activity in the Customer’s Account, material breach of the Acceptable Use Policy, or use of the Services that could interfere with the functioning of the Next Method Network, provided such suspension or limitation may only be to the extent reasonably necessary to protect against the applicable condition, activity, or use. Next Method will promptly remove the suspension or limitation as soon as the condition, activity or use is resolved and mitigated in full. If Customer anticipates legitimate but unusual activity on its Account, Customer should contact Next Method Support in advance to avoid any Service disruption.

7.2 Service Limitations: The Service may not support emergency calls (e.g., 911) in the same manner as traditional phone services. You acknowledge that alternative arrangements may be necessary for emergency access.

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8.   SERVICE AVAILABILITY AND QUALITY​

8.1 No Guarantee: The Provider strives to maintain reliable Service but does not guarantee uninterrupted or error-free operation. Service availability depends on your internet connection and other factors beyond our control.
8.2 Maintenance: We may perform scheduled or emergency maintenance that temporarily disrupts the Service. We will endeavor to provide advance notice when possible.

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9.   EQUIPMENT AQUISITION AND RETURNS

During the normal course of business, as a matter of convenience, or for any other reason, you may elect to acquire, whether by payment for goods sold or as part of a free or heavily discounted plan, equipment for use with your Services from Next Method. Next Method does not lock down or restrict equipment sold to the Next Method Service.

 

To this end, you acknowledge and affirm that, warranty exchanges notwithstanding, all equipment sales are final and not entitled to a refund or exchange.  Next Method may, in its sole discretion, agree to accept the return of equipment (“RMA”). You agree to be responsible for all return shipping charges and assume any and all liability for any damage that may occur while shipping equipment to Next Method. Next Method recommends you elect to purchase insurance for the full replacement value of the equipment being returned. All equipment returned as part of a non-warranty RMA transaction must be fully functional, RETURNED IN ORIGINAL PACKAGING, include all documentation, guides, ancillary equipment/parts and accessories, cables, peripherals, power supplies/adapters, and be in generally resalable condition. You agree and authorize, in the sole and absolute discretion of Next Method, either (a) the insured return of any equipment not in the aforementioned condition to you at your expense; (b) a charge equal to each item(s) missing, damaged or otherwise deemed, at the sole and absolute discretion of Next Method, to not be generally resalable, up to the full MSRP of the equipment being returned.

 

You agree and affirm that you release any rights, possession or entitlement of any information contained on RMA equipment and said information becomes the property of Next Method upon its acceptance of the package from the carrier. Next Method recommends you properly manage and/or dispose of any residual information before releasing RMA equipment to a carrier for delivery to Next Method.

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10.   REVISIONS TO THE TERM AND CONDITIONS

From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference). Notice of revisions to the Agreement or pricing shall be posted on the Next Method Website (“the Website”) and deemed given and effective on the date posted to the Website. If you do not agree to the revision(s), you must Terminate your Service immediately, subject to the termination provisions provided in this Agreement. By continuing to use the Service after revision(s) are in effect, you hereby accept and agree to all such revisions​

 

11.  EARLY TERMINATION FEE

If Customer terminates the Agreement or any Services provided under the Agreement before the end of the Initial Term or any Renewal Term (“Terminated Term”) for any reason other than Next Method’s material breach, Customer will pay to Next Method an early termination fee equal to one hundred percent (100%) of the Monthly Recurring Charge for the terminated Service(s) multiplied by the number of months remaining in the Terminated Term (the “ETF”). In addition, Customer will pay Next Method as part of the ETF: (1) the non-recurring charges for the terminated Services, even if those charges had been initially waived; (2) any promotional credits provided to Customer; and (3) if some or all of the terminated Services were provided by a third party, an amount equal to any charge from the third party that Next Method becomes obligated to pay as a result of the termination, including any charges Next Method may incur from third party providers of any underlying services as a result of the early termination of the Agreement or any Service.

 

For end user-oriented services (e.g., work stations/endpoints, end user subscriptions/licenses), Customer may downsize the quantity of such services by no more than ten percent (10%) below the greater of (i) the quantity of end-user-oriented services for which Customer contracted at the commencement of this Agreement, or (ii) the quantity of end-user-oriented services provided to Customer in any one of the then-preceding three (3) months without incurring an ETF.

 

The ETF is due and payable immediately on the effective date of termination, and is in addition to any monthly recurring charges, usage charges and other charges due as of effective date of termination and any liability of Customer for breach of the Agreement.

 

12.   PAYMENTS

Invoices are due and payable upon presentation, and become past due after the Pay By Date printed on the invoice. If Client has a bona fide dispute with any of the amounts on the invoice (“Disputed Amount”), it will pay all amounts not in dispute by the Pay By Date and provide Next Method with a written request for a billing adjustment, together with all supporting documentation, within forty-five (45) days after Client’s receipt of the invoice or Client’s right to any billing adjustment will be waived. If Next Method agrees to adjust all or a portion of the Disputed Amount, Client will not be obligated to pay a late payment charge on the adjusted amount. If Client fails to pay all non-Disputed Amounts on an invoice by the Pay By Date, Next Method may impose a late payment charge of 1.5% per month or the maximum rate allowed by law, whichever is less, on the unpaid balance until the amount is paid. Next Method may also suspend Client’s services until all delinquent amounts, including late payment charges, are paid in full. An additional charge will apply to each returned check. Payment must be made in U.S. Dollars.

 

13.   PRICE CHANGES

Next Method may adjust its pricing for Services at any time.  Clients will be notified 30 days prior to the price change taking effect.  Fixed price Agreements for a term commitment will not be subject to the price changes until the end of the term and will automatically renew, unless cancelled, at the new rate and term subscribed in the contract.

 

14.  COLLECTIONS

If Next Method is required to send your account to collections for non-payment you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney’s fees. You also agree to pay any additional charges or fees applied to your billing account including but not limited to, interest and charges due to insufficient credit.

 

15.   BACK-BILLING

Next Method will endeavor to bill Client for charges on a timely basis. However, unless proscribed by state regulation, Client will nevertheless be liable for all charges irrespective of any delay in billing, whether due to error, lack of necessary data, negligence or any other reason. No such delay will constitute a basis for a claim of waiver, estoppel or other excuse of Client’s obligation to pay Next Method charges, irrespective of the length of the delay. Nothing herein will toll the running of any statute of limitations applicable to such obligations.

 

16.   MANUFACTURER WARRANTY DISCLAIMER

The Service Provider is not responsible for work on any managed IT Asset that is identified under the manufacturer’s/vendor’s warranty. The manufacturer/vendor is responsible for repairing/replacing any and all faulty components listed under the warranty. The Client agrees that the Service Provider will not be held responsible for any loss of revenue or damages if the Service Provider performs work on an IT Asset that would compromise or void the warranty in any way.

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17.   OWNERSHIP

All materials, including all copyrights, trademarks, logos and other identifying marks (collectively “Materials”) of each party are and shall remain the exclusive property of that party, and except as otherwise specifically set forth in this Agreement, no license to use such Materials is granted pursuant to this Agreement. All Materials are proprietary and may not be reproduced, duplicated or disseminated for any purpose. All non-third party software installed or provided by one of the parties for the other party’s use is proprietary software and the exclusive property of installing party.

 

18.   CONFIDENTIAL INFORMATION

Pursuant to providing the Services, either party may gain access to the other party’s Confidential Information. Each party will adopt commercially reasonable measures to protect the other party’s Confidential Information provided pursuant to this Agreement. For purposes of this Agreement, “Confidential Information” means:

All inventions, processes, designs, trade secrets, formulas and formulations, methods, know-how, samples, test, technology, standard operating procedure and other data, and other information relating to the preclinical, clinical and pharmaceutical development, analysis, regulatory files and correspondence, manufacturing and packaging in whatever form (written, oral, visual, electronic);

All sales and marketing plans, future plans, business plans, financial information, results of consultancies, contracts, Client lists and relationships, and other information which may be needed to be disclosed by each party to the other in relation to business negotiations in whatever form (written, oral, visual, electronic); and

Any kind of information identified by one of the parties as Confidential Information

Confidential Information does not include information which: (i) the recipient can demonstrate in writing to be rightfully known to recipient at the time it receives the information; (ii) has become publicly known through no wrongful act of the recipient; (iii) the recipient can demonstrate in writing to have been rightfully received by recipient from a third party authorized to make such communication without restriction; or (iv) has been approved for release by written authorization of the discloser. A recipient may disclose Confidential Information if required by court or government action to be disclosed; provided, however, the recipient must first provide the discloser with reasonable prior, written notice of such disclosure so that the discloser may attempt to prevent such disclosure, and that the Confidential Information shall continue to be treated as Confidential Information for all other purposes.

Each party undertakes to hold any and all Confidential Information in confidence and to use it exclusively for the purposes set forth in this Agreement. Neither party shall, directly or indirectly, make use of the Confidential Information of the other party without the other party’s prior, written consent.

NEXT METHOD LLC and Client agree, except as otherwise set forth in this Agreement and unless otherwise required by law or compelled by a court of competent jurisdiction, not to disclose to a third party, without the prior written consent of the other party, the Confidential Information, including the terms and/or conditions of this Agreement, including, without limitation, not disclosing or sharing a copy of this Agreement with any third party. NEXT METHOD LLC agrees to protect the confidentiality of Client’s Confidential Information provided to NEXT METHOD LLC per terms of NEXT METHOD LLC’s standard Confidentiality Policy.

 

19.   DATA SECURITY AND PRIVACY

19.1 Data Protection. Provider will implement reasonable measures to secure Client’s data against unauthorized access, loss, or disclosure. 

19.2 Compliance. Both Parties agree to comply with applicable data protection laws as relevant to their operations. 

19.3 Data Ownership. Client retains ownership of all data provided to Provider. Provider may use anonymized data for improving its services, provided it does not identify Client. 

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19.4 Notification: Both parties agree to notify the other party of any material security breach or exposure of confidential information within 72 hours of discovery.

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20.   HIRING OF NEXT METHOD LLC’s EMPLOYEES

In the absence of NEXT METHOD LLC’s prior written consent, and for a period of twelve (12) months following the expiration or termination of this Agreement, for any reason whatsoever, Client agrees not to hire or engage, directly or indirectly, any person who, at any time during the twelve (12) months immediately preceding such hiring or engagement, was an employee of NEXT METHOD LLC employed to perform the Services or other services similar to the Services to the client of NEXT METHOD LLC. In the event Client breaches this provision, Client agrees to pay NEXT METHOD LLC, a “Staff Placement fee” equal to SIX (6) months pay for each former employee of NEXT METHOD LLC hired by Client, at the monthly rate paid by NEXT METHOD LLC for the last full month of such employee’s employment with NEXT METHOD LLC. In addition, NEXT METHOD LLC shall be entitled to temporary and permanent injunctions in order to prevent or restrain any such violation of this Section by the Client or its partners, agents, representatives, servants, employers, employees and any and all persons directly or indirectly acting for or with the Client. These remedies shall be in addition to, and not in limitation of, any other rights or remedies afforded to NEXT METHOD LLC under this Agreement or available to NEXT METHOD LLC at law or in equity.

 

21.   FORCE MAJEURE

Except for payment obligations, the parties shall not be responsible for failure to render any obligation due to causes beyond its reasonable control, including, but not limited to, work stoppages, fires, civil disobedience, riots, rebellions, floods, war, acts of terrorism, delays in transportation, accident, failure of Client to provide a suitable operating environment for NEXT METHOD LLC, hardware malfunctions caused by defects in software or otherwise, failure of Client to allow NEXT METHOD LLC access to its computer system, acts of God and other similar occurrences. The obligations and rights of the parties shall be extended on a day-to-day basis for the duration of excusable delay.

 

22.   SEVERABILITY

The invalidity or unenforceability of any one or more phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall not affect the validity or enforceability of the remaining portions of this agreement.

 

23.   REPRESENTATIONS AND WARRANTIES

Each party represents and warrants to the other party that (i) it has the full right, power and authority to enter into and to perform this Agreement; (ii) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; (iii) this Agreement constitutes a valid and binding obligation of such party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally; and (iv) the execution, delivery and performance of this Agreement does not or will not violate or cause a breach or default under (a) the governing corporate or company documents of such party; (b) any agreement, lease, mortgage, license or other contract to which such party is a party; or (c) any law, rule, regulation, order, decree or consent action by which such party is bound or to which it is subject.

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24.  DISCLAIMER OF WARRANTIES

NEXT METHOD LLC DOES NOT WARRANT THE UNINTERRUPTED OR ERROR-FREE OPERATION OR PROVISION OF THE SERVICES, THAT THE SERVICES WILL BE FREE FROM INTERRUPTION, THE SERVICES WILL BE SECURE FROM UNAUTHORIZED ACCESS, THAT THE SERVICES WILL DETECT EVERY SECURITY OR OTHER VULNERABILITY OF CLIENT’S COMPUTER SYSTEMS, OR THAT RESULTS GENERATED BY THE SERVICES WILL BE ERROR-FREE, ACCURATE OR COMPLETE. ALL INFORMATION, MATERIALS AND SERVICES ARE PROVIDED TO CLIENT “AS IS”. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEXT METHOD LLC HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.

The Services may become unavailable due to any number of factors, including, without limitation, scheduled or unscheduled maintenance, technical failure of the software, telecommunications infrastructure, or the unavailability or interruption of access to the Internet. The disclaimers set forth in this Section shall apply regardless of whether (i) NEXT METHOD LLC determines that Client’s computer systems are deemed “secure”, (ii) Client performs such modifications to its computer systems as NEXT METHOD LLC reasonably suggests in order for Client’s computer systems to be deemed “secure”, or (iii) otherwise.

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25. LIMITATION OF LIABILITY

NEXT METHOD LLC WILL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY OF THE FOLLOWING ARISING OUT OF THIS AGREEMENT AND/OR THE SERVICES: ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NEXT METHOD LLC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFITS, LOSS OF DATA, EQUIPMENT DOWNTIME, OR LOSS OF GOODWILL. CLIENT ACKNOWLEDGES AND AGREES THAT NEXT METHOD LLC’S AGGREGATE LIABILITY TO CLIENT FOR ANY DAMAGES, LOSSES, FEES, CHARGES, EXPENSES AND/OR LIABILITIES ARISING OUT OF WITH THIS AGREEMENT AND/OR THE SERVICES SHALL NOT EXCEED THE FEES PAID BY CLIENT PURSUANT TO THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST OCCURRENCE OF THE APPLICABLE DAMAGES, LOSSES, FEES, CHARGES, EXPENSES AND/OR LIABILITIES.  FURTHER, IF ANY COLLECTION ACTION LITIGATED OR OTHERWISE, IS NECESSARY TO ENFORCE THE TERMS OF THIS AGREEMENT, SERVICE PROVIDER SHALL BE ENTITLED TO REASONABLE ATTORNEYS’ FEES AND COSTS IN ADDITION TO ANY OTHER RELIEF TO WHICH IT MAY BE ENTITLED.  NEXT METHOD SHALL NOT BE RESPONSIBLE TO CLIENT FOR LOSS OF USE OF THE IT ENVIRONMENT OR FOR ANY OTHER LIABILITIES ARISING FROM ALTERATIONS, ADDITIONS, ADJUSTMENTS, SERVICE, REPAIRS, OR MAINTENANCE WHICH HAVE BEEN MADE TO THE IT ENVIRONMENT OTHER THAN BY AUTHORIZED REPRESENTATIVES OF THE SERVICE PROVIDER.

Client acknowledges that the limitations on liability were specifically bargained for and are acceptable to Client. Client’s willingness to agree to the limitations of liability set forth in this Section was material to NEXT METHOD LLC’s decision to enter into this Agreement. The limitations on liability set forth in this Section shall be enforceable to the maximum extent permitted by applicable law.

 

Nothing in this Agreement shall limit or exclude either Party’s liability for death or personal injury or any other liability which cannot be excluded by law.

 

No action, regardless of form (including in contract, tort or otherwise), arising in connection with the performance of this Agreement may be brought by either party more than one (1) year after the date of the occurrence on which the action is based. 

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26.HEADINGS AND INTERPRETATION

The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa. The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party or Parties on the grounds that the Party or Parties drafted or was more responsible for drafting the provision(s).

 

27. NOTICES

All notices required pursuant to this Agreement shall be written and shall be delivered by (i) hand-delivery; (ii) nationally recognized overnight delivery service (such as FedEx, UPS, DHL, or USPS Express Mail); or (iii) electronic mail with verification of receipt. All such notices and other communications shall be addressed to the other party at the address set forth in this Agreement or to such other address as a party may designate by notice complying with the terms of this Section. Each such notice shall be deemed delivered (i) on the date delivered if by hand-delivery; (ii) on the date delivered or the date delivery is refused by the recipient, if by nationally recognized overnight delivery service; or (iii) upon verification of receipt if by electronic mail.

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28. DISPUTE RESOLUTION

Except as otherwise specifically set forth in this Agreement, the parties hereby agree to resolve any and all controversies, claims and/or disputes arising out of this Agreement and/or any Services (each, a “Dispute”) solely pursuant to the terms of this Section.

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29. MANAGEMENT RESOLUTION

All Disputes shall first be referred to the parties’ authorized representatives for discussion and resolution of the Dispute (“Management Resolution”), which representatives are the individuals who have executed this Agreement on behalf of their party.

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30. ARBITRATION

If Management Resolution fails to resolve the Dispute, then the Dispute shall be resolved by final, binding arbitration (“Arbitration”) in Madison, WI administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules.

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31. GOVERNING LAW; VENUE; JURISDICTION

This Agreement shall be governed by, and construed in accordance with, the laws of the State of WI (without giving effect to principles of conflicts of laws). For any action to compel Arbitration, enforce an Arbitration award or seek injunctive relief pursuant to this Agreement, the parties hereby expressly consent to the (i) venue of Dane County, WI, USA, and each party hereby expressly waives any objection to such venue based upon forum non-convenience or otherwise; and (ii) jurisdiction of the state and/or federal courts in and/or for Dane County, WI, USA.

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32. PREVAILING PARTY ATTORNEY’S FEEs

 

In the event of any Arbitration, action to compel Arbitration, action to enforce an Arbitration award or action to seek injunctive relief pursuant to this Agreement, the prevailing party in such proceeding shall be entitled to an award of their reasonable attorneys’ fees and costs for each such proceeding, including the Arbitration, trial and for all levels of appeal.

 

33.INJUNCTIVE RELIEF; CUMULATIVE REMEDIES

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Each party agrees that a violation or breach of any of the ownership or non-disclosure provisions of this Agreement could cause irreparable harm to the non-breaching party for which monetary damages may be difficult to ascertain or an inadequate remedy. Therefore, each party will have the right, in addition to its other rights and remedies, to seek and obtain injunctive relief for any violation of the ownership or non-disclosure provisions of this Agreement, and each party hereby expressly waives any objection, in any such equitable action, that the other party may have an adequate remedy at law. The rights and remedies set forth in this Agreement are cumulative and concurrent and may be pursued separately, successively, or together.

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34.Miscellaneous

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34.1. Relationship of the Parties

Next Method and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Next Method and Customer.

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34.2. Assignment

Neither Party may assign the Agreement or any portion thereof without the other Party’s prior written consent (which such consent may not be unreasonably withheld or delayed), however either Party may assign the Agreement and all of that Party’s rights and obligations thereunder without consent (a) to an Affiliate; (b) to the Party’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets used in connection with the provision of Services under this Agreement; or (c) as part of the transfer or disposition of more than fifty percent (50%) of a Party’s voting control or assets. This Agreement will bind and inure to the benefit of the Parties, and their permitted assigns and successors.

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34.3. Notices

Except where otherwise expressly stated in the Agreement, all notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email or five days after deposit with a reputable overnight courier service, and addressed as follows:

to Next Method LLC,

4009 Felland Rd, Ste 109

Madison, WI 53713

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with a copy to accountmanager@nextmethodmsp.com, and to Customer at either the physical address or email address associated with the Customer Account. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices.

The addresses to which notices may be given by either Party may be changed upon written notice given to the other Party pursuant to this Section (Notices) or by Customer in the Administrative Portal.

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34.4. Anti-Bribery

Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and similar applicable Laws.

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34.5 Export Control

Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export Laws and regulations. Customer will not use distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.

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35.SMS and MMS

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SMS Terms of Service

By opting into SMS from a web form, signed contract or other medium, you are agreeing to receive SMS messages from Next Method LLC. This includes SMS messages for appointment scheduling, appointment reminders, post-visit instructions, lab notifications, and billing notifications. Message frequency varies. Message and data rates may apply. See privacy policy at https://www.nextmethodmsp.com/privacypolicy. Message HELP for help. Reply STOP to any message to opt out.

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