Neon One Terms of Service
SLA and Security Policy
Additional Product Terms
NEONRAISE TERMS OF SERVICE
Last Updated: April 1, 2020
These NeonRaise Terms of Service (these “NeonRaise 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 proprietary cloud-based software-as-a-service offering NeonRaise (“NeonRaise”), and, to the extent offered to Customers through NeonRaise, Neon One’s proprietary cloud-based software-as-a-service offering NeonPay (“NeonPay”) (each, a “Neon One Product” and, collectively, the “Neon One Products”), made available through the website located at uniform resource locator www.neonraise.com (the “Site”). Access to such Neon One Products is provided to you solely in accordance with, and subject to, these NeonRaise Terms of Service. You acknowledge agree that these NeonRaise Terms of Service apply only to your use of NeonRaise and NeonPay during the term of this Agreement (as defined below), and that your use of any other products or services provided by or on behalf of Neon One shall be subject to the Neon One General Terms of Service made available at https://neonone.com/termsofservice/.
This is a legally enforceable contract. By creating a NeonRaise account or clicking “I Agree” to these NeonRaise Terms of Service or by accessing or otherwise using the Neon One Products, you agree to be bound by these NeonRaise Terms of Service. If you do not agree to these NeonRaise Terms of Service, do not access or use the Neon One Products.
From time to time, Neon One may modify these NeonRaise Terms of Service, effective immediately upon posting such modified NeonRaise Terms of Service on the Site. While we may note the date of the last update to these NeonRaise 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. Your continued use of the Neon One Products constitutes your immediate acceptance of the modified NeonRaise Terms of Service. If you do not agree to the modified NeonRaise Terms of Service, do not continue to use or access the Neon One Products. Except to the extent expressly contemplated by these NeonRaise Terms of Service, no other amendment, modification or supplement of any provision of these NeonRaise Terms of Service will be valid or effective unless made in writing and signed by duly authorized representatives of both parties.
1.1 “Account Application” means the account application or similar electronic form submitted by you to Neon One through the Site to request access to the Neon One Products along with all other information submitted by you to Neon One in connection with the onboarding process for the Neon One Products.
1.2 “Affiliate” means, with respect to any entity, any other present or future entity Controlling, Controlled by, or under common Control with such entity, where the term “Control,” and its derivatives, of an entity means the legal, beneficial, or equitable ownership, directly or indirectly, of at least fifty percent (50%) of the capital stock or other ownership interest of such entity ordinarily having voting rights, or the power in fact to direct or cause the direction of the management of such entity or to elect the majority of such entity’s board members or other directors or managers.
1.3 “Agreement” means these NeonRaise Terms of Service along with all Account Applications, all of which are hereby incorporated herein by reference.
1.4 “Customer Data” means all data and information submitted by Customer or its Authorized Users to Neon One through the Neon One Products.
1.5 “Documentation” means any user guides, technical manuals, operating rules, acceptable use policies and other materials provided or made available by Neon One for use by Customer.
1.6 “Intellectual Property Rights” means any and all tangible and intangible: (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (b) trademark and trade name rights and similar rights; (c) trade secret rights, (d) patents, patent applications, designs, algorithms and other industrial property rights; and (e) other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise.
1.7 “Neon One Property” means the Neon One Products, Documentation, and Output (excluding Customer Data), all as defined herein.
1.8 “Output” means the information and data, excluding Customer Data, developed or collected by Neon One or otherwise generated by, residing in or resulting from the Neon One Products.
1.9 “PCI DSS” means the Payment Card Industry Data Security Standards, available at https://www.pcisecuritystandards.org/pci_security/, designed to ensure that entities that accept, process, store, or transmit payment card information and receive payments maintain a secure environment.
1.10 “Personal Information” means any piece of information that, individually or in combination, does or can identify a specific individual, or from which a specific individual may be identified, contacted or located.
2. LICENSE AND RESTRICTIONS.
2.1 Limited License. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, Neon One grants to the Customer a limited, non-exclusive, revocable, non-sublicensable and non-transferable license, during the term of this Agreement, to access and use, for internal purposes only, the Neon One Products; and use the Documentation to facilitate the use of the Neon One Products, in each case in accordance with the applicable Documentation and the terms and conditions of this Agreement (the “License”). For purposes of these NeonRaise Terms of Service, any references to the “Neon One Products” will include any associated software, code, application programming interfaces, user interfaces, and other applications that are made available to you by Neon One specifically in connection with NeonRaise under this Agreement, along with any Updates (as defined below) thereto made available to you by Neon One in connection with NeonRaise under this Agreement.
2.2 License Restrictions. Customer will not (and will not permit any third party to): (a) make the Neon One Property available to, or use any Neon One Property for the benefit of, anyone other than Customer or its Authorized Users (as defined below), (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Neon One Property, or include any Neon One Property in a service bureau or outsourcing offering, (c) use any Neon One Property to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights, (d) use any Neon One Property to store or transmit any virus, Trojan horse, worm, time bomb, or other routine, mechanism or code designed to disable, erase, alter, or otherwise harm any computer system, program, database, data, hardware or communications system, (e) interfere with or disrupt the integrity or performance of any Neon One Property (or third party data contained therein), (f) attempt to gain unauthorized access to any Neon One Property or its related systems, networks or data, (g) permit direct or indirect access to or use of any Neon One Property in a way that circumvents a contractual usage limit or security mechanism, procedure, or protocol, or to any of Neon One’s (or Neon One’s licensors’) Intellectual Property Rights, (h) copy any Neon One Property or Service or any part, feature, function or user interface thereof, (i) use the Neon One Property other than for its intended purpose, in strict accordance with the Documentation and as allowed by this Agreement, (j) frame or mirror any part of any Neon One Property, other than as expressly permitted in the Documentation, (k) reverse engineer any Neon One Property (except to the extent such restriction is permitted by applicable law); or (l) use the Neon One Products to generate or facilitate unsolicited bulk commercial email.
2.3 Updates. Neon One reserves the right to make updates, modifications and enhancements of the Neon One Products and Documentation (“Updates”) in its discretion during the Term provided that the terms and conditions of this Agreement shall continue to apply to any such Updates made available to Customer by Neon One. Such Updates may be completed without prior notice; provided that, Neon One will use commercially reasonable efforts to notify Customer in advance of any such Updates that are reasonably likely to materially impact the Neon One Products whenever reasonably possible. Customer acknowledges and agrees that such Updates may not be compatible with its website and that its website may cease to function following the Update. In most cases, Neon One will be unable to rollback or otherwise reverse the Updates. Customer agrees that (a) it is solely responsible for adjusting its website for compatibility with the Neon One Products following any Updates; and (b) Neon One shall not be liable for any loss or damage Customer or any Authorized User may experience as a result of such Updates.
3. SECURITY & PRIVACY.
3.1 SLA and Support Services. Neon One’s service level commitments are set forth in the Neon One SLA and Security Policy available at www.neonone.com/security (or such successor URL determined by Neon One) (the “SLA and Security Policy”). The SLA and Security Policy, as may be updated from time to time in accordance with the terms thereof, is incorporated into this Agreement by reference as Additional Terms.
3.2 Information Security. Neon One’s information security controls, policies and procedures are described in the SLA and Security Policy.
3.3 Privacy. Each Party acknowledges and agrees that, subject to the terms and conditions of this Agreement, the use of the Neon One Products by Authorized Users may result in the Parties having access to Personal Information, particularly Personal Information of your constituents and/or customers.
3.3.1 To the extent that Customer Data includes non-public personal information (“NPI”) as defined by the Gramm-Leach-Bliley Act (“GLBA”), both Customer and Neon One understand and acknowledge that to the extent it qualifies as a nonaffiliated third-party under the GLBA it shall, (a) not use or disclose NPI for any purpose other than to perform its obligations under this Agreement; (b) implement appropriate administrative, technical, and physical safeguards designed to reasonably ensure the security and confidentiality of the NPI, protect against any anticipated threats or hazards to the security or integrity of the NPI, and protect against unauthorized access to or use of the NPI that could result in substantial harm to any consumer; and (c) for as long as such Party has NPI, provide and maintain appropriate safeguards for the NPI in compliance with this Agreement and the GLBA.
3.3.3 To the extent that Customer uses the Neon One Products in connection with any ACH or “e-check” –related services provided by Neon One to Customer as may be further described in the Documentation or Section 5 of these NeonRaise Terms of Service, Customer is required to and shall understand and comply with the National Automated Clearing House Association (“NACHA”) Rules (“NACHA Rules”). Copies of the NACHA Rules may be obtained through NACHA.org.
3.3.5 To the extent such functionality is provided through the Neon One Products, Customer may only use the Neon One Products to send email to recipients that gave Customer permission to send email to them as required by the CAN-SPAM Act. Customer shall honor opt-out requests from email recipients. Neon One may restrict Customer’s ability to send email or terminate your account if an unusual amount of email traffic is marked as SPAM or if Neon One is contacted by an ISP indicating that your account is sending unsolicited email.
4. ACCESS AND USE OF THE NEON ONE PRODUCTS.
4.2 Customer’s Security Measures. Customer will implement and maintain commercially reasonable security procedures for the transmission of Customer Data to the Neon One Products. Customer is solely responsible for the security within the Customer’s technical systems and environments integrated with or otherwise used in connection with the Neon One Products. Customer will notify Neon One promptly upon becoming aware of any suspected security breach regarding transmissions to or from the Neon One Products.
4.3 Additional Use Restrictions. Without limitation of the remainder of this Section 4, in connection with your access to and use of the Neon One Products, you shall:
4.3.1 Administer security within the Customer’s technical systems and environments used in connection with the Neon One Products (the “Customer Solution”) (e.g., granting of rights to a user with the Customer Solution).
4.3.2 Maintain your Authorized Users’ desktops and provide Authorized Users with network access to the Neon One Products.
4.3.3 Use reasonable precautions to ensure security for integration between your Customer Solution and the Neon One Products.
4.3.4 Maintain compliance with the PCI DSS.
4.3.5 Maintain and observe all reasonable security measures to protect your Customer Solution from unauthorized control, tampering, or other unauthorized access.
4.3.6 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.
4.3.7 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 Neon One Products or relevant Payment Gateway.
4.4 Suspension of Access. Neon One may in its discretion suspend Customer’s access to, or reasonably restrict any use of, the Neon One Products temporarily, in whole or in part, if, and so long as, in Neon One’s sole judgment, there is a security risk that may interfere with the proper continued provision of the Neon One Products or Customer is misusing the Neon One Products, has breached this Agreement, or is or may be engaged in illegal activity. Neon One will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat at Customer’s cost.
4.5 Third Party Offerings. Neon One may directly or indirectly use certain third party providers (“Third Party Providers”), provide links to websites or applications and access to or integrations with content, products, services, utilities, software, hardware, systems, networks, connections, data, content, documents or other materials from third parties, including other users, advertisers, affiliates and sponsors (“Third Party Materials”). Customer acknowledges and agrees that (a) access and use of Third Party Materials may be subject to additional terms and conditions as made available by such Third Party Providers and Customer 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, (b) Neon One may, at any time in its discretion, modify, cancel or discontinue any available interoperability or integrations for the Neon One Products with any Third Party Materials, or any other support or assistance provided by Neon One in connection with any Third Party Providers or Third Party Materials, and (c) Neon One is not responsible for the availability or content of any such Third Party Materials, including any related opinions, advice, statements, advertisements or integrations. Further, 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.
5. NEONPAY PAYMENT PROCESSING TERMS.
5.1 Overview. NeonPay 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”). NeonPay 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 NeonPay; 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.
5.2 Processing Agreement. Neon One processes payments you receive through NeonRaise from your Constituents via NeonPay. 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 NeonPay to enter into a Sub-Merchant Agreement with the Payment Processor(s) of record (each, a “Sub-Merchant Agreement”) and use of NeonPay requires your acceptance of these relevant Sub-Merchant Agreements. As of the date of these NeonRaise Terms of Service, Neon One uses Payrix Solutions, as a Payment Processor with its Sub-Merchant Agreement located at (https://portal.splashpayments.com/terms). By accepting these NeonRaise Terms of Service and using NeonPay, you acknowledge and agree that you have read and accepted, and agree to be bound by and comply with, the applicable Sub-Merchant Agreement, 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 NeonPay 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 NeonRaise Terms of Service.
5.3 Background Checks. Use of NeonPay 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.
5.4 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 NeonRaise 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.
5.5 Payouts. Funds processed through NeonPay will be disbursed to you interest free, less any refunds, chargebacks, and any applicable fees including Fees (as defined below) applicable to NeonPay. Funds processed through NeonPay shall be disbursed on a monthly basis and be disbursed by the 5th business day of the following month. Notwithstanding anything to the contrary herein, you acknowledge and agree that Neon One may withhold, suspend or delay disbursement of funds to you if Neon One is required to withhold such amounts by Applicable Law, if you are delinquent in any amount owed to Neon One under these NeonRaise Terms of Service, or otherwise 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 under the Agreement. Such withholding, suspension or delay may be temporary or permanent as determined by Neon One in its discretion.
5.6 Direct Deposit ACH Form. Through the onboarding process for the Neon One Products you are required to provide Neon One authorization to make deposits and/or debits to your bank account in accordance with your account balance and disbursement instructions. Neon One reserves the right to hold on your behalf any funds collected using NeonPay until you provide such authorization and Neon One has successfully verified your depository bank account used in connection with NeonPay.
5.7 Refunds. It is your responsibility to communicate your refund policy to Constituents. You shall ensure that your refund policy is consistent with the Agreement. All refunds will be charged to you along with any applicable Fees. All communications or disputes regarding refunds are between you and your Constituents. Neon One may force a refund of any charges that Neon One reasonably believes are fraudulent or if Neon One receives complaints from a substantial number (as determined by Neon One in its discretion) of Constituents with respect to your events or offerings. You are still responsible for ticketing and associated fees with respect to refunded amounts.
5.8 Reconciliation and Chargebacks; 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 communications or disputes regarding chargebacks. You are solely responsible for payment of all chargebacks and ticketing 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 interest that Neon One is entitled to charge pursuant to these NeonRaise Terms of Service.
5.9 Transaction Limits. Unless otherwise pre-approved in writing by Neon One, the per transaction limit for transactions processed in connection with NeonPay will be $10,000.
5.10 Reserve. You acknowledge and agree that in addition to other rights afforded to Neon One under these NeonRaise Terms of Service, Neon One may establish a reserve account to satisfy any of your actual or potential delinquent obligations under these NeonRaise Terms of Service 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.
5.11 Taxes. You acknowledge and agree that, if payments processed through your NeonPay account in a given calendar year exceed either (a) $20,000 in gross sales or (b) 200 transactions, Neon One is required to report those transactions to the Internal Revenue Service, along with your name, address and Tax Identification Number.
5.12 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 NeonPay; 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 with respect to PCI DSS compliance.
6.1 Fees. In consideration of the access to and use of NeonPay and NeonRaise, you shall pay the processing fees set forth below in accordance with the terms of this Section 6 (the “Fees”).
- Card processing rates – 5.50% + $0.50
- AMEX Surcharge – 1.00%
- ACH processing rates – 1.00% + $1.00
- ACH rejects – $10.00
- Chargebacks and Retrievals – $15.00
Fees shall apply to all financial transactions conducted by you through the use of NeonPay (including without limitation credit card, debit card, and ACH transactions). “Transactions” means all online financial transactions conducted on Customer’s behalf through the use of any Neon One Product. These Fees may be amended from time to time by Neon One in accordance with its rights under these NeonRaise Terms of Service.
6.2 Fee Increases. Fees may be increased or otherwise modified from time to time by Neon One. Any such increases or modifications to the Fees shall take effect immediately upon email notification to you or notification upon your access to NeonRaise, whichever is earlier. If you do not agree to such increased or modified Fees, do not continue to access or use the Neon One Products. You acknowledge and agree that your continued access to or use of the Neon One Products constitutes your immediate acceptance of any such modified Fees.
6.3 Taxes. All Fees do not include any applicable taxes, and Customer 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 this Agreement (“Taxes”) whether imposed on Customer or Neon One; provided, however, that Customer 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 Customer in accordance with the foregoing, Customer shall reimburse Neon One for the amount of such Tax upon receiving an invoice therefor.
6.4 No Setoff; No Refunds. All amounts due under this Agreement to be paid in full by Customer to Neon One and Customer 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. You acknowledge and agree that all payment obligations and fees and charges paid or payable by you under these NeonRaise Terms of Service are non-cancellable and non-refundable for any reason.
7. PROPRIETARY RIGHTS.
7.1 Ownership of Neon One Property. Neon One owns and shall retain all ownership right, title, and interest in and to the Neon One Property and all Intellectual Property Rights embodied therein or associated therewith. Customer shall have no right, title, or interest in or to the Neon One Property other than the limited license rights expressly set forth in this Agreement.
7.2 Ownership of Customer Data. Customer owns and shall retain all ownership right, title, and interest in and to the Customer Data and any and all Intellectual Property Rights embodied therein. Neon One shall have no right, title, or interest in or to the Customer Data other than the limited license rights expressly set forth in this Agreement.
7.3 License to Customer. Subject to the terms and conditions of this Agreement, Neon One hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use any Output and other deliverables provided or otherwise made available to Customer by Neon One in connection with this Agreement for Customer’s internal business purposes in accordance with the applicable Documentation.
7.4 License to Neon One.
7.4.1 General. Customer hereby grants to Neon One and its Affiliates a fully-paid up, nonexclusive, irrevocable, transferrable, worldwide license to process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use Customer Data in connection with the provision of the Neon One Property and Services to Customer and its Authorized Users and for purposes of developing, maintaining and improving the Neon One Property and Services provided to Customer and its Authorized Users.
7.4.2 Aggregated Data License. Without limitation of Section 7.4.1, Customer hereby grants to Neon One and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, sublicensable, transferrable, non-exclusive license to process, reproduce, store, distribute, display, modify, translate, transmit, create derivative works from, make available and otherwise use the Customer Data during the Term and after any expiration or termination of this Agreement for purposes of advertising, marketing, developing, maintaining, improving, offering and delivering Neon One’s current and future products and services as they may be provided to Customer, its Authorized Users or other customers of Neon One; for research, analysis and reporting purposes; and otherwise as determined by Neon One in connection with Neon One’s and its Affiliates’ business operations; provided, however, that all such use of the Customer Data will be aggregated, de-identified and anonymized in a manner that does not designate or identify Customer or its Authorized Users as the source of such data.
7.5 Notification of Unauthorized Use. Customer shall promptly notify Neon One in writing upon its discovery of any unauthorized use or infringement of the Neon One Property 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 Neon One Property, 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. REPRESENTATIONS AND WARRANTIES.
8.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it has the full power and authority to enter into this Agreement; (b) the individual entering into this Agreement on its behalf is authorized to do so; and (c) this Agreement constitutes a valid and legally binding obligation of such party, enforceable against such party in accordance with its terms.
8.2 Additional Representations and Warranties of Customer. Customer hereby represents, warrants and covenants to Neon One that: (a) Customer has collected, compiled and generated all the Customer Data in compliance with all applicable federal, state and local laws, rules, regulations, ordinances, statutes, treaties or orders (“Applicable Laws”) and any applicable privacy policies; (b) the provision of all Customer Data to Neon One hereunder is in compliance with all Applicable Laws and any applicable privacy policies; (c) Customer has all rights necessary to grant Neon One the right to use and disclose all Customer Data in accordance with the terms of this Agreement; (d) all Customer Data provided or otherwise made available to Neon One is accurate and complete; and (e) unless otherwise expressly indicated in the Documentation for the particular Neon One Product, or to the extent reasonably necessary to utilize the Neon One Products for their intended purpose in accordance with the terms and conditions of this Agreement, Customer Data shall not contain any Personal Information.
8.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEON ONE WILL NOT BE RESPONSIBLE FOR ANY THIRD PARTY MATERIALS OR OTHER THIRD PARTY SOFTWARE, SERVICE OR HARDWARE NEON ONE PROVIDES OR USES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NEON ONE DOES NOT WARRANT THAT (A) THE OPERATION OF THE NEON ONE PROPERTY OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) ANY DEFECT OR MALFUNCTION IN THE NEON ONE PROPERTY OR ANY SERVICES IS CORRECTABLE OR WILL BE CORRECTED.
8.4 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 Neon One Products (“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.
9.1 Indemnification by Neon One. Neon One will indemnify, defend, and hold harmless Customer and its Affiliates and each of their respective officers, directors, employees, and agents (collectively, the “Customer Indemnified Parties”) from and against all third-party claims, suits, demands and actions (collectively, “Claims”) brought against the Customer Indemnified Parties, and for all resulting damages, fines, penalties, judgements, assessments, losses, liabilities, costs and expenses (including reasonable attorney and professional fees) (collectively “Losses”) incurred by the Customer Indemnified Parties in connection with such Claims, to the extent resulting from Neon One’s gross negligence, willful misconduct or fraud.
9.2 Indemnification by Customer. Customer will indemnify, defend, and hold harmless Neon One and its Affiliates and each of their respective officers, directors, employees, agents, licensors and licensees (collectively the “Neon One Indemnified Parties”) from any and against all Claims brought against the Neon One Indemnified Parties, or tendered to the Neon One Indemnified Parties, for the defense and/or indemnification, and for all resulting Losses incurred by the Neon One Indemnified Parties in connection with such Claims, to the extent resulting from: (a) a claim that the Customer Data, Customer’s provision of the Customer Data to Neon One in connection with this Agreement or Neon One’s use of the Customer Data pursuant to the rights granted under this Agreement, fails to comply with Applicable Law or otherwise infringes, misappropriates or violates any rights of a third party, including any privacy rights or Intellectual Property Rights of any third parties; (b) Customer’s use of the Neon One Property; (c) Customer’s failure to comply with Applicable Laws in connection with its performance under this Agreement, or (d) Customer’s gross negligence, willful misconduct or fraud.
9.3 Indemnification Processes and Procedures. The party seeking indemnification pursuant to this Article 9 (as applicable, the “Indemnified Party”), will promptly notify the other party from whom indemnification is sought (as applicable, the “Indemnifying Party”), in writing, of any Claim for which the Indemnified Party believes that it is entitled to indemnification (provided that the Indemnified Party’s failure to provide such notice or to provide it promptly will relieve the Indemnifying Party of its indemnification obligations only if and to the extent that such failure actually prejudices the Indemnifying Party’s ability to defend the Claims). The Indemnifying Party shall control the defense and settlement of such Claims, provided, however, that the Indemnifying Party shall not agree to any settlement that admits fault of or otherwise creates liability of the Indemnified Party without the Indemnified Party’s express prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). The Indemnified Party shall, at the Indemnifying Party’s sole cost and expense, upon reasonable request of the Indemnifying Party provide reasonable assistance and cooperation with the Indemnifying Party’s defense of such Claims. The Indemnified Party may employ counsel at its own expense to assist it with respect to any such Claim; provided, however, that if such counsel is necessary because of a conflict of interest of the Indemnifying Party or its counsel or because the Indemnifying Party does not assume control, the Indemnifying Party will bear the expense of such counsel.
9.4 Options Upon Infringement Claim. If any of the Neon One Property becomes, or in Neon One’s opinion is likely to become, the subject of an infringement or misappropriation Claim, Neon One may, at its own expense and option, elect to either:
9.4.1 procure the right for the Customer to continue using the Neon One Property in accordance with the provisions of this Agreement;
9.4.2 make such alterations, modifications or adjustments to the Neon One Property so that the infringing product or technology becomes non-infringing without a material reduction in features or functionality thereof;
9.4.3 replace the Neon One Property with a non-infringing substantially similar substitute; or
9.4.4 terminate this Agreement.
9.5 Sole Remedy. THIS ARTICLE 9 STATES NEON ONE’S ENTIRE LIABILITY, AND THE CUSTOMER’S SOLE REMEDIES, FOR ANY CLAIMS SUBJECT TO NEON ONE’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
10.1 Definition. “Confidential Information” means all confidential or proprietary information disclosed by or on behalf of a party (in this capacity, the “Disclosing Party”) to the other party (in this capacity, the “Receiving Party”) or its Representatives (as defined below), whether orally, in writing or in any other format or medium, in connection with the performance of this Agreement, that is identified as confidential or is reasonably apparent to be confidential given the nature of such information and the circumstances of disclosure. Confidential Information will not, however, include any information that (a) at the time of disclosure hereunder is generally known to the public or thereafter becomes generally known to the public without breach of this Agreement by the Receiving Party or any of its Representatives, (b) was known to the Receiving Party at the time of its disclosure by or on behalf of the Disclosing Party hereunder without breach of any obligation owed to the Disclosing Party, (c) is received by the Receiving Party or any of its Representatives from a third party without breach of any obligation of confidentiality owed to the Disclosing Party with respect to such disclosure or (d) was independently developed by the Receiving Party or any of its Representatives without reference or use of the Disclosing Party’s Confidential Information. For the avoidance of doubt, (i) the terms and conditions of this Agreement and all Account Applications will be deemed the Confidential Information of each party, (ii) the Neon One Property is the Confidential Information of Neon One, and (iii) without limitation of the rights granted under Section 7.4, the Customer Data is the Confidential Information of Customer.
10.2 Permitted Use. The Receiving Party shall: (a) use the Disclosing Party’s Confidential Information solely to accomplish the purpose of this Agreement or as otherwise permitted under the express terms of this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to any third party without first obtaining the written consent of the Disclosing Party, except as otherwise expressly permitted herein; and (c) protect the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care used to protect its own confidential and/or proprietary information from unauthorized use or disclosure, but in no event with less than reasonable care. The Receiving Party will be permitted to disclose the Disclosing Party’s Confidential Information to its Affiliates and those of its and its Affiliates’ respective directors, officers, employees, agents, subcontractors and consultants (with respect to a Party, together with such Party’s affiliates, collectively, such Party’s “Representatives”) who need to know such Confidential Information in order to accomplish the purpose of this Agreement; provided, that such persons or entities are bound to the Receiving Party by obligations of confidentiality and non-use with respect to such Confidential Information that are substantially similar to those contained herein. The Receiving Party shall be liable for any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by any of the Receiving Party’s Representatives. The Receiving Party shall notify the Disclosing Party in writing promptly upon learning of any such unauthorized use or disclosure of the Disclosing Party’s Confidential Information and shall use all reasonable efforts to mitigate such unauthorized use or disclosure and prevent any further unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Notwithstanding anything in this Agreement to the contrary, Neon One shall be permitted to (i) disclose Customer’s Confidential Information, on a limited basis, to Neon One’s lender(s) or prospective acquirer(s), provided that any such lender or prospective acquirer is bound by obligations of nondisclosure and limited use at least as stringent as those contained herein and (ii) use the Customer Data in accordance with Section 7.4.
10.3 Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is required pursuant to Applicable Law, or by order of a court or governmental or regulatory body of competent jurisdiction; provided, that the Receiving Party promptly notifies the Disclosing Party of such disclosure in writing and provides reasonable assistance to the Disclosing Party in seeking such protective action as it deems appropriate. Thereupon, the Receiving Party may only disclose such Confidential Information as is legally required and only to an authorized person, entity or agency, to the extent required by Applicable Law and subject to the maximum available confidentiality restrictions.
10.4 Return of Confidential Information. At any time upon the Disclosing Party’s request, the Receiving Party shall, at the Disclosing Party’s sole discretion: (a) return to the Disclosing Party all tangible or electronic Confidential Information of the Disclosing Party then in the possession of the Receiving Party or its Representatives, or (b) destroy all such Confidential Information, including any copies thereof, in accordance with the Disclosing Party’s instructions (and confirm such destruction in writing to the Disclosing Party). Notwithstanding the foregoing, the Receiving Party may retain copies of the Disclosing Party’s Confidential Information disclosed hereunder that are contained in routine system backups or are necessary to fulfill its ongoing obligations or exercise its ongoing rights under this Agreement (including without limitation the rights to Customer Data granted under Section 7.4), subject to the ongoing obligation to maintain the confidentiality of such information in accordance with the terms of this Section 10.
10.5 Publicity. Customer hereby authorizes Neon One, in Neon One discretion, to issue a press release announcing Customer as a customer of Neon One and to use Customer’s name and logo on Neon One’s website, customer lists and similar marketing and promotional materials. Subject to the foregoing, neither party will be permitted to use the other party’s name, logo or other proprietary marks or indicia in any other press releases, marketing or promotional materials, or publicity of any kind without the express written permission of the other party.
11. TERM & TERMINATION.
11.1 Term and Termination. The term of this Agreement shall begin on the date you submit an Account Application or otherwise register for or begin using the Neon One Products and shall continue until terminated under the provisions of this Article 11 (the “Term”).
11.2 Termination. Neon One may terminate this Agreement and your access to the Neon One Products at any time. Customer may terminate this Agreement at any time by cancelling its account for the Neon One Products and immediately ceasing all use thereof.
11.3 Effects of Termination. In the event of any expiration or termination of this Agreement, Customer and its Affiliates shall have no more access to the Neon One Property, their passwords will become invalid and the Documentation and any Neon One Confidential Information must, within twenty (20) days, be returned to Neon One.
11.4 Survival. All rights and obligations that accrued prior to termination or expiration of this Agreement or by their nature are intended to survive the termination or expiration of this Agreement, shall survive expiration or termination of this Agreement, including without limitation the provisions of Sections 1, 2.2, 4.5, 5.4, 5.5, 5.7, 5.8, 5.10, 5.11, 6, 7.1, 7.4, 7.5, 8, 9, 10, 11.3, 11.4, 12, and 13.
12. LIMITATIONS OF LIABILITY.
12.1 Disclaimer of Damages. 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), INCLUDING WITHOUT LIMITATION 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.
12.2 Limitation of Liability. NEON ONE’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL BE LIMITED TO THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY THE CUSTOMER TO NEON ONE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
12.3 Applicability. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. GENERAL TERMS.
13.1 Export Compliance. The Neon One Products 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 Neon One Products 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 Neon One Products in such manner as to violate such laws or regulations in effect from time to time.
13.2 Independent Contractors. The parties to this Agreement 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. This Agreement is 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.
13.3 Force Majeure. Neither of the parties shall be considered in default of performance under this Agreement (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 actions or regulations, communication or utility failures, pandemic, epidemic, public health emergencies, or casualties.
13.4 Equitable Relief. Each party acknowledges and agrees that its breach of any confidentiality or proprietary rights provision of this Agreement 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.
13.5 Notices. Except as otherwise set forth herein, any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight courier service (e.g., Federal Express), or by first class mail (certified or registered), to the other party addressed as set forth on the Account Application or to such other address of which a party provides notice to the other party. In addition, Neon One may provide any such notices under this Agreement to you by email to the address as set forth on the Account Application (or to such other address of which you provide notice to Neon One). Notices will be effective upon receipt. You hereby acknowledge and agree that all agreements, notices, disclosures, and other communications that we provide to you electronically as permitted under this Agreement satisfy any legal requirement that such communications be in writing.
13.6 Waiver and Modification. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
13.7 Assignment. Customer shall have no right to transfer or assign this Agreement or the Customer’s rights or obligations under this Agreement in whole or in part without Neon One’s express prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), and any attempted transfer or assignment in violation of the foregoing shall be null and void. Neon One may transfer, assign or subcontract this Agreement or Neon One’s rights or obligations under this Agreement, in whole or in part, without the consent of Customer. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
13.8 Severability. If for any reason any provision of this Agreement is adjudicated to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
13.9 Controlling Law and Venue. These NeonRaise 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 NeonRaise 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 NeonRaise Terms of Service shall be brought only in the state and federal courts located in Chicago, Illinois.
13.10 Dispute Resolution and Class Action Waiver. Any dispute arising under this Agreement will be subject to binding arbitration by a single arbitrator with the American Arbitration Association (AAA) to be held in Chicago, Illinois in accordance with its relevant industry rules, if any. The arbitrator will have the authority to grant injunctive relief and specific performance and to enforce the terms of this Agreement. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any proceeding to resolve or litigate any dispute in any forum relating to this Agreement shall be conducted solely on an individual basis. Neither Party shall have any dispute heard as a class action or in any other proceeding in which either Party acts or proposes to act in a representative capacity.
13.11 Headings. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
13.12 English Language. We may translate this Agreement into other languages for your convenience. In the event of any conflict between the English language version and a translated version, the English language version controls.
13.13 Entire Agreement. This Agreement 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.