Neon One Terms of Service
SLA and Security Policy
Additional Product Terms
Last Updated: July 2019
These NeonPay Terms of Service (these “Terms of Service”) set forth the terms and conditions upon which Neon One, LLC, directly or through any of its affiliated companies including, without limitation, Neon CRM, RallyBound, Arts People, and Civicore (“Neon One”, “we” or “us”) offers you, our end-users (“Customer”, “you” or “your”), access to Neon One’s NeonPay proprietary web based integrated payments platform(s) (collectively, the “NeonPay Service”). Access to the NeonPay Service is provided solely in accordance with, and subject to, these Terms of Service, the Processing Fee Agreement entered into between you and Neon One relating to the NeonPay Service (the “Processing Fee Agreement”), and any additional services agreement, general or product-specific terms of service or other applicable terms and conditions entered into by you and Neon One or any of its affiliated companies in writing or otherwise as made available by Neon One through the website located at uniform resource locator https://neonone.com/neonpay/terms-of-service (the “Site”) from time to time (collectively, the “Additional Terms”). By clicking “I Agree” or by accessing or otherwise using the NeonPay Service, you agree to be bound by these Terms of Service, the Processing Fee Agreement, and any applicable Additional Terms, all of which are hereby incorporated into these Terms of Service. If you do not agree to these Terms of Service, do not access or use the NeonPay Service.
This is a legally enforceable contract. From time to time, Neon One may modify these Terms of Service, effective upon posting such modified Terms of Service on the Site. While we may note the date of the last update to these Terms of Service on the Site and provide additional notice of such modifications, you acknowledge and agree that you must periodically check the Site for any updates and that your continued access to or use of the NeonPay Service constitutes your acceptance of any such revisions. Except to the extent expressly contemplated by these Terms of Service, no other amendment, modification or supplement of any provision of these Terms of Service will be valid or effective unless made in writing and signed by duly authorized representatives of both parties.
1.1 Limited License to Use the NeonPay Service. Subject to your compliance with these Terms of Service, Neon One hereby grants to you a limited, personal, non-exclusive, non-transferable license, during the term of these Terms of Service, to access and use the NeonPay Service solely for the purpose expressly described in and to the extent authorized under these Terms of Service and any applicable user guides, technical manuals and other similar documentation made available by Neon One to you in connection with the NeonPay Service during the term (“Documentation”). Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by Neon One to you hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved unto Neon One.
1.2 Other License Restrictions. You shall not (a) copy or modify the NeonPay Service for any purpose; (b) reverse engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the NeonPay Service; (c) distribute, disclose, market, rent, lease or otherwise transfer the NeonPay Service to any other person or entity; or (d) post or provide any unlawful, infringing, unauthorized or otherwise inappropriate information or other content to or through the NeonPay Service.
2. SUMMARY OF NEONPAY SERVICE
2.1 Overview. The NeonPay Service allows you to accept payments via credit card, debit card, and ACH transactions including processing cards bearing the trademarks of Visa®, MasterCard®, Discover®, and American Express® (collectively, the “Networks”). The NeonPay Service will collect, transmit, and store data for payment processing with third-party payment gateway services providers (“Payment Gateways”) and payment processors (“Payment Processors”). We will use your constituents’ and/or customers’ (“Constituents”) cardholder and online financial transactions data (“Transaction Data”) only in the provisioning of the NeonPay Service; provided, however, we may use the Transaction Data in an aggregate form combined with the data of other Neon One clients for statistical analysis and reporting. Neon One is not a depository institution and does not offer banking services or Money Service Business services as these terms are defined by the United States Department of Treasury. You are not a third party beneficiary under, nor do you have any rights under, our contracts with third parties including Payment Gateways, Payment Processors, Networks, or banks.
2.2 Processing Agreement. Neon One processes payments you receive from your Constituents via the NeonPay Service. In order to serve in this role, we must enter into agreements with Networks, Payment Processors, Payment Gateways, and banks. These third parties require customers of the NeonPay Service to enter into a Sub-Merchant Agreement with the Payment Processor(s) of record (each, a “Sub-Merchant Agreement”) and use of the NeonPay Service requires your acceptance of these relevant Sub-Merchant Agreements. As of the date of these Terms of Service, Neon One uses Payrix Solutions, LLC and Stripe, Inc., or their respective affiliates, as Payment Processors, with each such party’s Sub-Merchant Agreement located at (https://portal.splashpayments.com/terms) and (https://stripe.com/ssa), respectively. By accepting these Terms of Service and using the NeonPay Service, you acknowledge and agree that you have read and accepted, and agree to be bound by and comply with, these applicable Sub-Merchant Agreements, as may be amended from time to time without prior notice to you. We may change, replace, or terminate the services of any Payment Gateway and/or Payment Processor upon notice to you. In the event of replacement of a Payment Gateway and/or Payment Processor, you understand and agree that you may be required to execute additional terms and conditions associated with such a replacement. You acknowledge and agree that your continued use of the NeonPay Service constitutes your agreement to such additional terms and conditions and you will be subject to such revised terms. You further understand and agree that any breach by you of any Sub-Merchant Agreement or any agreement with any Payment Gateway, Payment Processor, or the like shall be deemed to be a breach by you of these Service Terms.
3. NEONPAY SERVICE GENERAL TERMS
3.1 Background Checks. Use of the NeonPay Service requires you to provide information about you necessary to enable Neon One to verify your identity, including (a) personal information (full legal name, resident address, date of birth, and Social Security Number (or other government ID, if not a U.S. citizen) for your beneficial ownership (25% or more equity ownership) and/or your principal officer (having control over your organization, such as CEO or CFO) and (b) verification of your ownership of your bank account(s) that may be used for payment purposes including deposit of processed funds as required from time to time by anti-money laundering laws, other applicable laws and Neon One’s internal underwriting, risk, anti-money laundering and Know Your Customer (KYC) policies and procedures as well as creditworthiness background checks.
3.2 Payouts. Funds processed through the NeonPay Service will be disbursed to you interest free, less any refunds, chargebacks, and any applicable fees including NeonPay Processing Fees. Funds processed through the NeonPay Service shall be disbursed on a weekly basis at the close of each week (unless you have selected daily or monthly payout pursuant to your Processing Fee Agreement or otherwise through the NeonPay Service). Notwithstanding anything to the contrary herein, you acknowledge and agree that Neon One may suspend or delay disbursement of funds to you in order to protect Neon One against the risk of, among other things, existing, potential or anticipated chargebacks, fraud or your failure to fulfill your responsibilities set forth in these Terms of Service.
3.3 Direct Deposit ACH Form. You shall provide Neon One with a completed Authorization Agreement for Direct Deposits (ACH Credits) with your Taxpayer Identification Number (TIN) to permit Neon One to make deposits to your bank account in accordance with your disbursement instructions. Neon One reserves the right to hold on your behalf any funds collected using the NeonPay Service until you provide a completed Authorization Agreement to Neon One and Neon One has successfully verified your depository bank account used in connection with the NeonPay Service.
3.4 Reconciliation and Charge Backs; Debit of Your Account. Neon One shall perform daily internal reconciliations and provide chargeback management services via the NeonPay merchant portal in connection with delivering statements and payment disbursements to you. You are solely responsible for your individual transaction reconciliations for each disbursement. You are solely responsible for payment of all chargebacks and associated fees of any kind whatsoever against any merchant account established by Neon One for the purpose of consummating financial transactions conducted on your behalf. For any negative transactions including any refunds and/or chargebacks, Neon One reserves the right to offset such negative transactions against disbursements to you, or, if any disbursement is less than such offset, debit your bank account the balance of such offset. You agree that Neon One may, without prior notice to you, debit your bank account for the full amount of any negative or debit balance including chargebacks and reversals if at the end of any disbursement there is a negative or debit balance in your NeonPay account. If Neon One is unable to collect on any refunds and/or chargebacks using offset of your disbursement or debit of your bank account, Neon One shall have the right to invoice you any unpaid balance which shall be subject to the lesser of ten percent (10%) annual interest or the highest interest allowable under applicable law.
3.5 Transaction Limits. Unless otherwise pre-approved in writing by Neon One, the per transaction limit for transactions processed in connection with the NeonPay Service will be $25,000.
3.6 Reserve. You acknowledge and agree that in addition to other rights afforded to Neon One under these Terms of Service, Neon One may establish a reserve account to satisfy any of your actual or potential delinquent obligations under these Terms of Service, including any Additional Terms, or any other agreement between you and Neon One (the “Reserve Account”). Neon One may (but is not required to) apply funds in the Reserve Account toward and may set off any funds that would otherwise be payable to you against the satisfaction of any amounts which are due from you. The Reserve Account will not bear interest, and you will have no right or interest in the funds in the Reserve Account. Upon satisfaction of all your obligations under such agreements, Neon One will pay to you any funds then remaining in the Reserve Account. Any funds in the Reserve Account may be commingled with other funds and need not be maintained in a separate account. The parties’ rights and obligations under this Section shall survive the termination of the Agreement.
3.7 Information Security. Neon One will implement and maintain information security controls, policies and procedures that include administrative, technical and physical safeguards consistent with all applicable laws, rules, and regulations and generally accepted industry standards applicable in its industry, including without limitation, as applicable, the then-current Payment Card Industry Data Security Standard (as made available at https://www.pcisecuritystandards.org/pci_security/ (PCI DSS), that are designed to: (a) maintain the security and integrity of Transaction Data in Neon One’s possession or control; (b) protect against anticipated threats or hazards to the security or integrity of the NeonPay Service; and (c) protect against unauthorized access or use of such Transaction Data. Except to the extent prohibited by applicable laws, rules or regulations or Neon One’s contractual obligations to third parties, Neon One shall promptly notify you upon becoming aware of any unauthorized access to or disclosure of Transaction Data (i) residing on any Neon One system, (ii) under the control of Neon One, or (iii) for which Neon One is responsible for managing in connection with the Services (a “Security Event”) and shall take action as reasonably determined by Neon One to remediate, mitigate and respond to any such Security Event. You acknowledge and agree to comply with all of your responsibilities set forth herein and in any Additional Terms with respect to PCI DSS compliance.
3.8 Third Party Services and Content. Without limitation of the express terms of this Section 3, you acknowledge and agree that Neon One may use certain third party providers (each, a “Third Party Provider”) to provide payments-related services, and Neon One may make available certain third party forms, utilities, software, hardware, systems, networks, connections, data, content, products, services, documents and other materials (collectively, “Third Party Materials”) that are subject to such third party’s terms and conditions. You shall comply with all of your obligations, relating to Third Party Providers and Third Party Materials under the terms of any agreement with such Third Party Providers and/or the providers of such Third Party Materials. You represent and warrant to Neon One that you shall agree to and comply with Third Party Providers’ terms and conditions and shall only use any such Third Party Materials in accordance with the independent rights you have directly secured from the providers of such Third Party Materials.
4. CUSTOMER RESPONSIBILITIES
4.1 Account Information. You must provide Neon One with current, complete and accurate information (including your email address) as requested in the Processing Fee Agreement or otherwise prompted by the applicable registration form in order to register for the NeonPay Service. You are responsible to maintain the privacy and security of your login information, including user names and passwords, and not allow others to use the login information. You will notify us immediately of any breach in secrecy, security, or unauthorized use or theft of your login information (and provide properly documented evidence as reasonably requested by us). You are responsible for any and all actions taken by any person that has access to your account. You agree to immediately notify Neon One of any potential breaches of the login information and of the departure of any employee with access to the login information. You agree not to link, “frame” or “mirror” any content or information contained on or accessible from the Site or NeonPay Service without the prior written approval of Neon One or its licensors, as may be appropriate. In the event you breach the terms or conditions of these Terms of Service, Neon One may immediately suspend or terminate your access to the NeonPay Service.
4.2 Use Restrictions. Further, in connection with your access to and use of the NeonPay Service, you shall:
4.2.1 Administer security within the Customer’s technical systems and environments used in connection with the NeonPay Service (the “Customer Solution”) (e.g., granting of rights to a user with the Customer Solution).
4.2.2 Maintain your authorized users’ desktops and provide authorized users with network access to the NeonPay Service.
4.2.3 Use reasonable precautions to ensure security for integration between your Customer Solution and the NeonPay Service.
4.2.4 Maintain compliance with the PCI DSS.
4.2.5 Maintain and observe all reasonable security measures to protect your Customer Solution from unauthorized control, tampering, or other unauthorized access.
4.2.6 Use the NeonPay Service only for your legitimate business purposes.
4.2.7 Not use the NeonPay Service for load testing.
4.2.8 Not sell or provide, directly or indirectly, any portion of the NeonPay Service to any third party or permit anyone other than your authorized users to gain access to or use the NeonPay Service via your logins and passwords.
4.2.9 Not transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs.
4.2.10 Not interfere with or disrupt the NeonPay Service, networks or servers connected to the NeonPay Service or violate the regulations, policies or procedures of such networks or servers.
4.2.11 Not attempt to gain unauthorized access to the NeonPay Service, logins and passwords of others, or computer systems and networks connected to the NeonPay Service.
4.2.12 Ensure that your Customer Content (as defined below) and your products or services (excluding any Neon One products) used in conjunction with the NeonPay Service do not infringe any intellectual property rights or otherwise violate or misappropriate any proprietary or privacy rights of any third party.
4.2.13 Comply with all applicable laws, rules, and regulations including laws regarding privacy and protection of consumer data and comply with the Visa Cardholder Information Security Program (www.visa.com/cisp), the Mastercard Site Data Protection Program (https://www.mastercard.us/en-us/merchants/safety-security/security-recommendations/site-data-protection-PCI.html) and all other applicable rules of card associations, including American Express®, MasterCard®, Discover® and Visa®, as well as the General Data Protection Regulation (https://gdpr-info.eu/ )as related to Cardholder Information of constituents within the European Union.
4.2.14 Provide all disclosures to and obtain all consents from each end user, in each case as required by the card associations and applicable law, prior to transmitting information relating to such end user to the NeonPay Service or relevant Payment Gateway.
4.3 Appointment of Neon One and/or the applicable Payment Processor as “Payee Agent”. You hereby appoint Neon One and/or the applicable Payment Processor as your agent for the sole and limited purpose of receiving, holding and settling payment to you. You agree that a payment received by Neon One and/or the applicable Payment Processor, on your behalf, completes your Constituent’s payment to you, regardless of whether such payment actually settles to you. In the event that Neon One or the applicable Payment Processor does not make any such payment to you as described in these Terms of Service, you will have recourse against only Neon One and not such Constituent, as such payment is deemed made by such Constituent to you upon receipt by Neon One and/or the applicable Payment Processor.
4.4 Constituent Data. You shall be solely responsible for ensuring, and you hereby represent, warrant and covenant to Neon One, that: (a) the provision of all Transaction Data to Neon One hereunder is in compliance with all applicable laws, rules and regulations, agreements with any applicable third parties and any applicable privacy policies; (b) you have all rights necessary to grant Neon One the right to use Transaction Data in accordance with the terms of these Terms of Service; and (c) all Transaction Data provided or otherwise made available to Neon One is accurate and complete.
5.1 NeonPay Processing Fees. Processing fees shall apply to all financial transactions conducted by you through the use of the NeonPay Service (including without limitation credit card, debit card, and ACH transactions). Processing fees applicable to the NeonPay Service (“NeonPay Processing Fees”) are identified in the Processing Fee Agreement. These fees may be amended from time to time by Neon One. Any changes to the NeonPay Processing Fees shall take effect 30 days following notification to you via email of any such changes. You acknowledge and agree that your continued access to or use of the NeonPay Service constitutes your acceptance of any such changes.
5.2 External Gateway Support Fees. If you choose to use a third party Payment Processor, applicable external Gateway support fees will apply. These fees (“Gateway Support Fees”) are identified in the Processing Fee Agreement. These fees may be amended from time to time by Neon One. Any changes to the Gateway Support Fees shall take effect 30 days following notification to you via email of any such changes. You acknowledge and agree that your continued access to or use of the NeonPay Service constitutes your acceptance of any such changes.
5.3 Taxes. All fees do not include any applicable taxes, and you will be responsible for paying any and all applicable sales, software license, use, value added, excise, property, withholding tax or any other taxes due in connection with the performance of these Terms of Service (“Taxes”) whether imposed on Customer or Neon One; provided, however, that you shall not be required to pay any Taxes applicable to Neon One’s net income. If Neon One pays any Tax that is payable by you in accordance with the foregoing, you shall reimburse Neon One for the amount of such Tax upon receiving an invoice therefor.
5.4 No Setoffs; No Refunds. All amounts due under these Terms of Service to be paid by you to Neon One will be paid in full and you will not be entitled to assert any credit, set-off or counterclaim against Neon One in order to justify withholding payment of any such amount in whole or in part. If any fees are not paid by you by the due date, Neon One may, without prejudice to any other right or remedy, charge interest on a day to day basis both before and after any judgment at a rate equal to the lesser of 1.5% per month or the maximum amount permitted by applicable law, from the due date for payment to the date of actual payment. For the avoidance of doubt, fees assessed on a periodic basis (e.g., annually) shall be payable by you throughout the term of the Processing Fee Agreement, in accordance with these Terms of Service, regardless of whether you have used the NeonPay Service. You acknowledge and agree that all payment obligations and fees and charges paid or payable by you under these Terms of Service are non-cancellable and non-refundable for any reason.
5.5 Fees for Other Neon One Products. You acknowledge and agree that additional fees and charges shall apply to your access to and use of other products and services made available by Neon One and its affiliated companies (collectively, “Other Neon One Offerings”), whether identified on the Processing Fee Agreement or a different service order (or similar ordering document) or the Additional Terms governing such Other Neon One Offerings (“Other Neon One Agreements”), and nothing under these Terms of Service shall limit or modify your obligation to pay all such amounts in connection with your access to and use of the Other Neon One Offerings.
6. TERM AND TERMINATION
6.1 Term; Renewal. The initial term of your access to the NeonPay Service shall begin on the date indicated in the applicable Processing Fee Agreement and shall continue until terminated in accordance with these Terms of Service.
6.2 Termination. Neon One may terminate the Processing Fee Agreement and these Terms of Service for any or no reason at any time upon notice to you. You may terminate the Processing Fee Agreement and these Terms of Service by cancelling your NeonPay account.
6.3 Effect of Termination. Upon the expiration or termination of these Terms of Service, all license rights of Customer under these Terms of Service shall automatically and immediately cease and Customer shall promptly cease all use of the NeonPay Service. Upon such expiration or termination, you may make written request to Neon One for available stored Transaction Data. If Neon One provides such Transaction Data, you will be required to (a) accept terms associated with the retrieval and delivery of such Data including any security procedures which Neon One determines are required by PCI DSS and (b) be responsible for paying the cost of such services. In the event of any expiration or termination of these Terms of Service or your account, you shall be responsible for any and all chargebacks, refunds, and any other fees associated with the NeonPay Service or any Other Neon One Offerings prior to and following such expiration or termination. Neon One may permit you to reinstate the NeonPay Service after expiration or termination, but you may incur additional fees to do so. Termination of these Terms of Service shall not affect any Other Neon One Agreements, all of which shall remain in full force and effect in accordance with the terms thereof. All provisions of these Terms of Service that are reasonably intended to survive expiration or termination, including without limitation Sections 1.2, 2.2, 3.4, 3.6, 3.8, 6.3, 7, 8.2, 9, 10, and 11, shall survive the expiration or termination of these Terms of Service.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Retention of Rights. Neon One, Third Party Providers and their respective licensors retain all intellectual property rights in and to the NeonPay Service and any Third Party Materials (including all related copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. Except for any rights specifically granted to you under these Terms of Service, you hereby assign to Neon One all other intellectual property rights you may now or hereafter possess in the NeonPay Service and related documentation, and all derivative works and improvements thereof, and agree to execute all documents, and take all actions, that may be reasonably necessary to confirm such rights. Further, you agree to retain all proprietary marks, legends and patent and copyright notices that appear on the NeonPay Service and any related documentation delivered to you by Neon One and all whole or partial copies thereof.
7.2 License to Customer Content. “Customer Content” means Data, images or other content, information or data uploaded to the NeonPay Service or otherwise used in connection with your use of the NeonPay Service. You hereby grant to Neon One, and any applicable Third Party Provider, a non-exclusive, royalty-free, worldwide, transferable license to use the Customer Content solely in connection with the provision or use of the NeonPay Service. You are solely responsible to secure all rights in and to all Customer Content.
7.3 Notification of Unauthorized Use. Customer shall promptly notify Neon One in writing upon its discovery of any unauthorized use or infringement of the NeonPay Service or Documentation, or Neon One’s intellectual property rights with respect thereto. Neon One shall have the sole and exclusive right to bring any infringement action or proceeding against any third party in relation to the NeonPay Service, and Customer shall cooperate and provide full information and assistance to Neon One and its counsel in connection with any such action or proceeding.
8. LIMITED WARRANTY; WARRANTY DISCLAIMERS.
8.1 Limited Warranties. Neon One represents and warrants that the NeonPay Service will be provided in a professional, workmanlike manner with reasonable care and skill, using suitably qualified personnel and perform substantially in accordance with the applicable Documentation when used in accordance with the terms and conditions of these Terms of Service. For any breach of the foregoing warranties, Customer’s sole and exclusive remedy is that Neon One will, at Neon One’s sole option, (i) make such alterations, modifications or adjustments to the NeonPay Service to cure the breach without materially reducing the features or functionality thereof, (ii) replace the NeonPay Service with a substantially similar substitute that conforms to such warranty; or (iii) if none of the foregoing remedies can be achieved after the exercise of commercially reasonable efforts, terminate these Terms of Service and refund to the Customer a pro-rated portion of all amounts paid by the Customer to Neon One as fees attributable to the license or subscription to the NeonPay Service for the period after such termination. Further, Neon One will use commercially reasonable efforts to make the NeonPay Service available to you no less than 99.9% of the time as measured on a monthly basis and excluding scheduled downtime for routine maintenance and service during regularly scheduled maintenance windows or for which Neon One provides reasonable advance notice (including by posting on the Site).
8.2 Warranty Disclaimer. EXCEPT FOR ANY WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION OR IN ANY ADDITIONAL TERMS, NEON ONE DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE NEONPAY SERVICE, ANY OTHER NEON ONE PRODUCTS OR SERVICES, ANY THIRD PARTY MATERIALS OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEON ONE DOES NOT WARRANT THAT THE NEONPAY SERVICE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. NEON ONE MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED OR PROVIDED BY THE NEONPAY SERVICE. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE APPLICABLE THIRD PARTY PROVIDER.
8.3 Customer Solely Responsible for Equipment, Hardware and Third Party Materials. Customer acknowledges and agrees that Customer retains sole and exclusive responsibility for any equipment, hardware or other devices used by Customer in connection with the NeonPay Service (“Underlying Equipment”). Neon One is not responsible for and hereby disclaims all responsibility and liability for the Underlying Equipment or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto. Customer acknowledges and agrees that the Underlying Equipment is solely within Customer’s control. Further, Neon One shall not be liable or responsible for any Third Party Provider or any Third Party Materials, or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto.
9. INDEMNIFICATION; UNAUTHORIZED USE
9.1 Indemnification by Neon One. Neon One hereby agrees to indemnify and hold harmless Customer from any and all liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by Customer in connection with any claims, proceedings or causes of action (“Claims”) brought against Customer by a third party to the extent arising from or related to (a) Customer’s use of the NeonPay Service as permitted under these Terms of Service infringes misappropriates any valid United States patent, copyright, trademark or trade secret of such third party, or (b) Neon One’s failure to comply with any applicable laws, rules or regulations in connection with its performance under these Terms of Service. Notwithstanding the foregoing, Neon One shall have no liability to Customer for any Claim to the extent that such Claim: (i) arises out of Customer’s use of the NeonPay Service other than as expressly permitted under these Terms of Service and the Documentation or any other unauthorized use, reproduction, or distribution of the NeonPay Service; (ii) arises out of any modification or alteration of the NeonPay Service by anyone other than Neon One; (iii) arises out of any Underlying Equipment or the use of NeonPay Service in combination with any other software or equipment not approved in writing by Neon One; or (iv) would have been avoided by use of the then-current release of any software or if the Customer had followed Neon One’s reasonable written instructions ((i) through (iv), collectively, “Excluded Claims”). This Section states the entire liability of Neon One with respect to any such third party claim. You shall give Neon One prompt written notice of any such claims for indemnification and you agree to relinquish control of defending any such claim to Neon One, including the right to settle.
9.2 Indemnification by Customer. Customer hereby agrees to indemnify and hold harmless Neon One from any and all liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by Neon One in connection with any claims, proceedings or causes of action arising from or related to (a) Customer Content, including any actual or alleged violations of third party intellectual property rights or privacy rights by such Customer Content; (b) Customer’s use of the NeonPay Service in violation of, or other failure to comply with, any applicable law, rule, regulation or third party terms, policies or agreements in connection with these Terms of Service; (c) the actual or requested provision of any data, or access to any data, by or on behalf of Customer in connection with the NeonPay Service; (d) any Excluded Claims; or (e) Customer’s breach of these Terms of Service.
10. LIMITATIONS OF LIABILITY.
10.1 Limitations of Liability. IN NO EVENT SHALL NEON ONE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND ARISING UNDER ANY THEORY OF LIABILITY (INCLUDING TORT), OR FOR ANY DAMAGES OR LOSSES FOR LOSS OF PROFITS, LOSS OF PRODUCTION OR EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS DATA OR INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF NEON ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION OF THE FOREGOING, NEON ONE’S MAXIMUM AGGREGATE LIABILITY UNDER THESE TERMS OF SERVICE (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO NEON ONE UNDER THESE TERMS OF SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THESE TERMS OF SERVICE SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.2 Disclaimer of Liability. NEON ONE EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS ARISING FROM OR RELATED TO ITS PRODUCTS AND SERVICES (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION, LIABILITY OR LOSS ASSOCIATED WITH UNAUTHORIZED ACCESS TO ANY SERVER, MERCHANT INTERFACES, WEBSITES, FACILITIES, OR YOUR TRANSACTION DATA OR ANY OTHER DATA OR INFORMATION (INCLUDING CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE INFORMATION), DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS, INCLUDING HACKING, OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND NEON ONE’S REASONABLE CONTROL. YOU EXPRESSLY AGREE THAT NEON ONE SHALL NOT BE LIABLE FOR ANY LOSS ARISING FROM INFILTRATION OF THE SERVICES OR YOUR CUSTOMER SOLUTION BY MEANS OF SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER SOFTWARE PROGRAMS, OR TECHNOLOGY DESIGNED OR INTENDED TO DISRUPT, DAMAGE, INTERCEPT OR EXPROPRIATE DATA FROM THE SERVICES OR YOUR CUSTOMER SOLUTION.
10.3 Essential Part of the Bargain. The parties acknowledge that the disclaimers and limitations set forth in this Section 10 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.
11.1 Confidentiality. “Confidential Information” shall mean confidential or proprietary data or information that is provided or made available by one party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with these Terms of Service and is specifically identified in writing as “confidential” or “proprietary” or would otherwise reasonably be deemed confidential or proprietary based on the nature of such data or information and/or circumstances of disclosure, provided for purposes of these Terms of Service, Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the Receiving Party, (b) is in Receiving Party’s possession, with no confidentiality restrictions, prior to the exchange, or (c) is independently developed by the Receiving Party without use of or reference to such information. Each Receiving Party agrees to treat Confidential Information received from the other party as confidential; not to disclose, or permit any third party or entity access to, such Confidential Information (or any portion thereof) without prior written permission of the Disclosing Party; to ensure that any employees, or any third parties who receive access to such Confidential Information, are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or otherwise revealing such Confidential Information; and to remain responsible for any use or disclosure of any Confidential Information disclosed to any such employees or third parties. Prior to disclosing any such Confidential Information received from the other party pursuant to any judicial or governmental order, unless otherwise prohibited by applicable laws, rules or regulations, the Receiving Party shall give the Disclosing Party reasonable prior notice to contest such order and reasonably cooperate with such Disclosing Party in connection therewith. The parties’ confidentiality obligations shall survive the termination or expiration of these Terms of Service.
11.2 Export Compliance. The NeonPay Service may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the NeonPay Service without prior written permission from Neon One once granted by the appropriate jurisdiction. The rights and obligations of Customer shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. Customer shall not, directly or indirectly, export, re-export or transship the NeonPay Service in such manner as to violate such laws or regulations in effect from time to time.
11.3 Independent Contractors. The parties to these Terms of Service are independent contractors. Neither party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party. These Terms of Service are not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.
11.4 Force Majeure. Neither of the parties shall be considered in default of performance under these Terms of Service (other than performance of obligations to pay fees) to the extent that such performance is delayed or prevented by circumstances or events beyond its reasonable control, including, without limitation, fire, flood, earthquake or similar natural disasters, riot, war, terrorism, civil strife, labor disputes or disturbances, material shortages or rationing, governmental regulations, communication or utility failures, or casualties.
11.5 Equitable Relief. Each party acknowledges and agrees that its breach of any confidentiality or proprietary rights provision of these Terms of Service may cause the other party irreparable damage, for which the award of damages may not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
11.6 Notices. All notices to either party shall be (a) in writing and delivered by hand or by certified mail or overnight delivery service to the address set forth by such party or to such other address as either party shall give by notice to the other party; or (b) if Neon One is providing notice, by email to the email address associated with Customer’s account or by posting such information to the NeonPay Service. Notices shall be effective when delivered in accordance with the foregoing.
11.7 Waiver. Failure by either party to enforce any provision of these Terms of Service will not be deemed a waiver of future enforcement of that or any other provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by the parties.
11.8 Assignment. You shall have no right to transfer or assign these Terms of Service or your rights or obligations under these Terms of Service in whole or in part without Neon One’s express prior written consent, and any attempted transfer or assignment in violation of the foregoing shall be null and void. Neon One may transfer, assign or subcontract these Terms of Service or Neon One’s rights or obligations under these Terms of Service, in whole or in part, without your consent. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
11.9 Severability. If for any reason any provision of these Terms of Service are adjudicated to be unenforceable, that provision of these Terms of Service will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms of Service will continue in full force and effect.
11.10 Controlling Law and Venue. These Terms of Service and any dispute or action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Illinois, without regard to the conflicts of laws provisions thereof. The parties agree that these Terms of Service are not governed by the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of both of which is expressly excluded and disclaimed. Any claim, action, suit or proceeding under these Terms of Service shall be brought only in the state and federal courts located in Chicago, Illinois.
11.11 Headings. Headings used in these Terms of Service are for ease of reference only and shall not be used to interpret any aspect of these Terms of Service.
11.12 Entire Agreement. These Terms of Service, including all Processing Fee Agreements, Additional Terms, and exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. In the event of any conflict between these Terms of Service and any of your Other Neon One Agreements, these Terms of Service will control to the extent of such conflict solely with respect to the NeonPay Service.