NEON ONE GENERAL TERMS OF SERVICE FOR SOFTWARE AND SERVICES OFFERED BY NEON ONE, LLC AND ITS AFFILIATED COMPANIES
Last Updated: March 29, 2024
These Neon One General 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 proprietary Neon One Products and related Services (each as defined below). Access to the Neon One Products and Services is provided solely in accordance with, and subject to, these Terms of Service, the Sales Order (as defined below), 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 www.neonone.com and/or any Neon One mobile application (or any successor website thereto as designated by Neon One from time to time, collectively the “Site”) from time to time (collectively, the “Additional Terms”).
This is a legally enforceable contract. By submitting or otherwise agreeing to a Sales Order, clicking “I Agree” or by accessing or otherwise using the Neon One Products, you agree to be bound by these Terms of Service, the Sales Order, and any applicable Additional Terms, all of which are hereby incorporated into these Terms of Service by reference. If you do not agree to these Terms of Service and such Sales Order and Additional Terms, do not access or use the Neon One Products.
If you are currently, as of the date of Neon One posting these Terms of Service on the Site, under contract with Neon One for any Neon One Products, a “Current Contract”), and such Current Contract limits Neon One’s ability to modify or update the terms of such Current Contract during the term of such Current Contract or any other period of time, then your Current Contract shall remain in effect under the terms thereof only for the duration of such term or period, and thereafter upon renewal of such Current Contract or the conclusion of such period, whichever is earlier, these Terms of Service shall supersede your Current Contract and govern all use of the Neon One Products, and your continued access to or use of the Neon One Products constitutes your immediate acceptance of these Terms of Service. Notwithstanding the foregoing, if your Current Contract permits Neon One to modify or update the terms of such Current Contract during the term of such Current Contract, then, notwithstanding anything to the contrary in your Current Contract, these Terms of Service shall supersede your Current Contract and govern all use of the Neon One Products at the earliest period permitted under your Current Contract, and your continued access to or use of the Neon One Products constitutes your immediate acceptance of these Terms of Service. For clarity, if your Current Contract is currently in a month-to-month term and limits Neon One’s ability to modify or update the terms of such Current Contract during such a term, then your Current Contract shall remain in effect until the end of the current month, and thereafter these Terms of Service shall supersede your Current Contract and govern all use of the Neon One Products, and your continued access to or use of the Neon One Products constitutes your immediate acceptance of these Terms of Service.
From time to time, Neon One may modify these Terms of Service, effective immediately 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. For any Sales Orders that are entered into after the time of us posting any modifications to these Terms of Service, such new Sales Orders shall be subject to the modified Terms of Service. For any Sales Orders that were in effect at the time of us implementing such modifications that do not specify a subscription or service term length or other minimum subscription or service period, your continued access to or use of the Neon One Products constitutes your immediate acceptance of the modified Terms of Service. For any Sales Orders that were in effect at the time of us implementing such modifications that specify an initial subscription or service term length or other minimum subscription or service period, such modifications to these Terms of Service shall become effective for any renewal period under such Sales Orders. 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.
- DEFINITIONS.
- “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.
- “Agreement” means these Terms of Service along with all Sales Orders and all applicable Additional Terms, and exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference,
- “Applicable Law” means all laws, including acts, by-laws, rules, regulations, ordinances, decrees, orders, and codes (including any requirements for permits, certificates, approvals, and inspections) of any national, state, or local authority of any government, or agency or subdivision thereof.
- “Authorized Users” means those individuals for which Customer is authorized to grant access to and permit use of the Neon One Products in accordance with the terms of the applicable Sales Order and the Documentation applicable to the Neon One Products, including without limitation, as applicable, Constituents.
- “Constituent” means any individual, entity or organization to whom the Customer Sites or other authorized Customer products or services are made available.
- “Customer Content” means all content, including but not limited to text, materials, media, photographs, images, text, audio, files, or other materials, Customer or its Authorized Users, including Constituents, create, submit, post, promote, or display on or through the Neon One Property or Customer Sites, excluding Licensed Content.
- “Customer Data” means all data and information submitted by Customer or its Authorized Users to Neon One through the Neon One Products, excluding Licensed Content.
- “Customer Sites” means Customer’s website(s), including any desktop or mobile site or application, authorized for use in connection with the Neon One Property.
- “Deliverable(s)” means deliverables specifically identified in any Sales Order under this Agreement, as applicable.
- “Documentation” means any user guides, technical manuals, operating rules, acceptable use policies, user support articles or similar publications, and other materials provided or made available by Neon One for use by Customer.
- “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.
- “Licensed Content” means any data, content, media, photographs, images (including image and product previews), text, audio, and information owned or licensed by Neon One and made available to Customer by Neon One through the Neon One Products or Services or otherwise in connection with Customer’s use of the Neon One Products, as may be more fully described in the Documentation, in each case excluding Customer Data and Third Party Content.
- “Neon One Products” means Neon One’s proprietary cloud-based software-as-a-service platform and all applications, modules and products made available by Neon One through the Site or platform for subscription by Neon One customers pursuant to a Sales Order and all Licensed Content made available through any of the foregoing, in each case along with any Updates thereto made available to Customer by Neon One, but expressly excluding any Third Party Materials.
- “Neon One Property” means the Neon One Products, Documentation, Licensed Content and Output (excluding Customer Data), all as defined herein.
- “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 or Services.
- “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.
- “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.
- “Sales Order” means a written or electronic sales order, processing fee agreement, client agreement, or other subscription or ordering document agreed by both parties through Neon One’s customer relationship management system or otherwise in writing that sets forth the commercial terms, the applicable Neon One Products licensed by Customer and Services to be provided to Customer, and any other additional terms and conditions of the Neon One Products and Services to be provided by Neon One to Customer under this Agreement.
- “Services” means, collectively, the Support Services and any applicable Professional Services as set forth in a Sales Order hereunder, in each case including any Deliverables provided in connection therewith.
- “Third Party Content” means third-party data, content, media, photographs, images (including image and product previews), text, audio, or information from third parties (including, without limitation, any of the foregoing made available by Neon One for display on Customer Sites or otherwise in connection with the Services).
- “Third Party Offerings” means, collectively, the Third Party Content and Third Party Products.
- “Third Party Products” means third-party web-based, mobile, offline, or other software application functionality that is incorporated into or interoperates with certain Neon One Products, or other products, hardware, software, or services from third parties.
- LICENSE AND RESTRICTIONS.
- 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 applicable Sales Order Term, to access and use, for the purposes specified in the applicable Documentation (or, if no such purposes are specified, for use solely in connection with Customer’s internal business operations), the Neon One Products for which Customer has a current subscription from Neon One pursuant to an applicable Sales Order; and use the Documentation to facilitate the use of the Neon One Products, in each case in accordance with the applicable Documentation, any applicable Additional Terms, and the terms and conditions of this Agreement (the “License”). For purposes of these Terms and Conditions, 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, along with any Updates (as defined below) thereto made available to you by Neon One.
- License Restrictions. Customer will not (and will not permit any Authorized User or third party to): (a) make the Neon One Property or Services available to, or use any Neon One Property or Service for the benefit of, anyone other than Customer or its Authorized Users, unless expressly stated otherwise in a Sales Order or the Documentation or Additional Terms for the applicable Neon One Products or Services, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Neon One Property or Service, or include any Neon One Property or Services in a service bureau, managed service or outsourcing offering, (c) use any Neon One Property to post, send, store or transmit material that is infringing, libellous, or otherwise unlawful or tortious, violent, threatening, pornographic, racist, hateful, or otherwise objectionable in Neon One’s sole discretion, or to store or transmit material in violation of third party rights, (d) use any Neon One Property to facilitate a business or business practice which is fraudulent, unfair, deceptive, or otherwise prohibited by consumer protection or other Applicable Law, (e) use any Neon One Property or Service 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, (f) interfere with or disrupt the integrity or performance of any Neon One Property or Service (or any third party data contained therein), (g) hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of, or otherwise attempt to gain unauthorized access to any Neon One Property or Service or Neon One’s or its customers’ or vendors’ related systems, networks or data, (h) permit direct or indirect access to or use of any Neon One Property or Service or to any of Neon One’s (or Neon One’s licensors’) or any third party’s Intellectual Property Rights in a way that circumvents a contractual usage limit, standard technical measure, or any other security mechanism, procedure, or protocol, (i) copy any Neon One Property or Service or any part, feature, function or user interface thereof, (j) use the Neon One Property or any Service other than (i) for its intended purpose, (ii) in strict accordance with the Documentation and all Applicable Law, and (iii) as authorized pursuant to this Agreement, (k) frame or mirror any part of any Neon One Property, other than as expressly permitted in the Documentation, (l) reverse engineer any Neon One Property or Service (except to the extent such restriction is permitted by Applicable Law); (m) cause undue strain or stress on the Neon One’s network from Customer’s use of the Neon One Property through excessive API calls, traffic, data storage or other non-standard use, or (n) use the Neon One Products to post “spam”, transmit chain letters, generate or facilitate unsolicited bulk commercial email or engage in other similar activities. Further, Customer hereby agrees to abide by any posted limitations relating to use, reproduction, or dissemination of the Neon One Property and with all Authorized User or other access or usage limitations applicable to Customer’s Sales Order and the applicable Neon One Products as specified in this Agreement or on the Site. Any use of the Neon One Property in any way not expressly permitted by this Agreement or otherwise in a writing signed by Neon One is expressly prohibited, and may be actionable under Applicable Law.
- Updates. Neon One reserves the right to make changes, 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. For the avoidance of doubt, this may include adding or removing available Licensed Content, adding or removing features or functionality of the Neon One Property, modifying or deleting available website, product or other templates, or replacing or modifying the Neon One Property in its entirety. Such Updates may be completed without prior notice. Customer acknowledges and agrees that such Updates may not be compatible with the Customer Sites or systems and that the Customer Sites or systems 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 the Customer Sites and systems for compatibility with the Neon One Products following any Updates; and (b) Neon One shall not be liable for any loss or damage experienced as a result of such Updates. Further, Customer agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features of the Neon One Property nor dependent on any oral or written public comments made by Neon One regarding future functionality or features of the Neon One Property.
- SERVICES.
- Availability, SLA and Support Services. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, Neon One will make available the Neon One Products for remote electronic access and use by Customer solely in accordance with the terms of this Agreement during the applicable Sales Order Term; however, the Neon One Products may be unavailable at times and, without limitation of the terms of the SLA and Security Policy (as defined below), Neon One does not make any representations, warranties or guarantees regarding uptime or availability of the Neon One Products. Neon One’s service level commitments are set forth in the Neon One SLA and Security Policy available at www.neonone.com/service (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. In addition, subject to the terms and conditions of this Agreement and the payment of all applicable Fees, Neon One may provide additional technical support and maintenance services for the Neon One Products during the applicable Sales Order Term to the extent indicated in any Additional Terms applicable to the Neon One Product in accordance with the SLA and Security Policy and such terms (the “Support Services”).
- Professional Services. From time to time, Neon One and Customer may enter into Sales Orders that relate to implementation services or other professional services in addition to the Support Services to be provided by Neon One (“Professional Services”). Each Sales Order will set forth the Professional Services to be provided together with the applicable Fees, Deliverables, milestones and other pertinent information related to the scope of such Professional Services. Except to the extent expressly set forth otherwise in the applicable Sales Order, Neon One retains ownership of all Intellectual Property Rights in, to or associated with the Professional Services.
- Information Security. Neon One’s information security controls, policies and procedures are described in the SLA and Security Policy.
- Privacy. Each party acknowledges and agrees that, subject to the terms and conditions of this Agreement, the use of the Neon One Products and Services by Authorized Users may result in the Parties having access to Personal Information, particularly Personal Information of your Constituents and/or other clients or customers.
- 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.
- To the extent that Customer Data includes personal information subject to U.S. state privacy laws (“State Privacy Laws”), Neon One acts as “Processor” or “Service Provider” to Customer. Customer acts as “Controller” or the “Business” under applicable State Privacy Laws. Neon One will not retain, use or disclose any Personal Information for any purpose other than providing Neon One Property and Services to Customer. Customer represents that it will obtain any necessary consents and comply with other obligations under State Privacy Laws and Neon One will provide reasonable assistance to Customer in connection with compliance, including assistance with individual rights requests such as requests for access, deletion, or correction.
- To the extent that Customer Data includes payment card information covered under PCI-DSS or Customer otherwise uses the Neon One Products in connection with the processing of payments as further described in the Additional Terms, Customer understands and agrees that it is the “merchant” per PCI DSS guidelines and is required to comply with the PCI DSS requirements. Neon One will provide Neon One Products and Services to Customer in accordance with this Agreement and the Privacy Policy.
- 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 Additional Terms, Customer is required to and shall understand and comply with the National Automated Clearing House Association Rules (“NACHA Rules”). Copies of the NACHA Rules may be obtained through NACHA.org.
- Notwithstanding anything in this Agreement to the contrary, unless otherwise expressly agreed by the parties in writing, Customer acknowledges and agrees that the Neon One Products and Services do not require Neon One to access, receive, maintain or transmit any Protected Health Information or PHI (as defined in 45 C.F.R. § 160.103) (“PHI”) that is subject to the Health Insurance Portability and Accountability Act (“HIPAA”), and Customer shall be solely responsible for ensuring that Customer Content does not contain or include, and Customer does not otherwise provide or make available to Neon One, any PHI. In the event that Neon One expressly agrees to access, receive, maintain or transmit any PHI in connection with this Agreement, the parties shall enter into a Business Associate Agreement (“BAA”) in accordance with Applicable Laws and the parties’ respective obligations under HIPAA prior to Customer providing or otherwise making available any such PHI. In the event of any conflict between these Terms of Service and the terms of the BAA, the terms of the BAA shall prevail for purposes of matters set forth in the BAA.
- Customer acknowledges and agrees that it has read and hereby agrees to Neon One’s privacy policy, made available by Neon One at www.neonone.com/privacy (or such successor URL determined by Neon One) (as may be updated from time to time in accordance with the terms thereof, the “Privacy Policy”), which addresses the parties rights and responsibilities with respect to Personal Information and other data in connection with the access to and use of the Neon One Products. The Privacy Policy is incorporated into this Agreement by reference as Additional Terms.
- 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 in compliance with the unsubscribe and other requirements of the CAN-SPAM Act, email service provider rules, and any other Applicable Laws. 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.
- Customer, on behalf of itself and all Authorized Users, acknowledges and agrees that Neon One may monitor any and all areas of Neon One Products to oversee compliance with this Agreement and for Neon One’s provision, use, and performance of various aspects of the Neon One Property and Services. Customer shall be responsible for informing all Authorized Users that their access to or use of Neon One Products constitutes consent to such monitoring and obtaining any necessary consent to or approval of such monitoring.
- ACCESS AND USE OF THE NEON ONE PRODUCTS.
- Authorized Access and Use.
- Authorized User Accounts. You must provide Neon One with current, complete and accurate information (including your email address) as requested in the Sales Order or otherwise prompted by the applicable registration form in order to register for use of the Neon One Products. You must identify all employees of Customer who will be authorized by you to be Authorized Users to access and use the Neon One Products on behalf of Customer, subject to any limitations set forth in the applicable Sales Order or Privacy Policy. Additionally, all subsequent user profiles for the Neon One Products created by the Customer and/or created by a Neon One employee at the instruction of the Customer shall be deemed an “Authorized User” for purposes of this Agreement. Customer and its Authorized Users shall use, safeguard and periodically change passwords in a commercially reasonable manner and time, to prevent unauthorized access to the Neon One Products. Customer is responsible to maintain the privacy and security of its Authorized Users’ login information, including user names and passwords, and not allow others to use the login information. Customer will notify Neon One immediately of any breach in secrecy, security, or unauthorized use or theft of any Authorized User’s login information (and provide properly documented evidence as reasonably requested by Neon One). Customer is responsible for any and all actions taken by any person that has access to Customer’s or any Authorized User’s account. Customer agrees 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.
- Authorized User Compliance. Customer will not permit Authorized Users to access and use the Neon One Products except solely during the Sales Order Term specified in the applicable Sales Order. Neon One has no obligation to verify the identity of any person who gains access to the Neon One Products through Customer’s account. You are solely responsible for monitoring your Authorized Users’ access to and use of the Neon One Products, and for any failure by any Authorized User to comply with this Agreement; a failure to comply with this Agreement by an Authorized User is a failure by Customer. Further, Customer will (a) be responsible for Authorized Users’ compliance with this Agreement, including all Additional Terms, Documentation and Sales Orders; (b) be responsible for the accuracy, completeness, timeliness, reliability, quality and legality of Customer Data and Customer Content, the means by which Customer acquired Customer Data and Customer Content, and Customer’s use of Customer Data and Customer Content with the Neon One Property; (c) be responsible for any and all activities that occur under the Customer’s Authorized User accounts, including without limitation the transmission or display of any Output or Customer Content, regardless of whether or not Customer has authorized any such uses; (d) use commercially reasonable efforts to prevent unauthorized access to or use of Neon One Property, and notify Neon One promptly of any such unauthorized access or use; and (e) use Neon One Property only in accordance with this Agreement, including all Additional Terms, Documentation, Sales Orders and Applicable Laws.
- Access and Use by Constituents. In the event that your Constituents are permitted to access certain Neon One Products as specifically authorized pursuant to the Sales Order and Documentation applicable to such Neon One Products, including as integrated into Customer Sites or otherwise made available to allow Constituents to make donations or purchases or otherwise interact with Customer or Customer Sites or as otherwise as authorized thereby, the access and use by Constituents of all such Neon One Products shall be subject to the terms of use, privacy policy and other ancillary terms (e.g. terms of purchase, shipping and return policies, etc.) (collectively, the “Customer Website Terms”) displayed on each Customer Site. You shall be solely responsible and liable for (a) ensuring that the Customer Website Terms (i) are accurate, complete, and sufficient to meet all requirements under Applicable Law, including without limitation the Digital Millennium Copyright Act (as amended from time to time) (“DMCA”) and any requirements applicable to Customer’s fundraising and other activities conducted through the Customer Sites; (ii) contain terms that are substantially similar to, and no less protective of Neon One’s rights and interests in the Neon One Property than, the terms of this Agreement; and (iii) are displayed on the Customer Sites in the manner required by Applicable Law and accepted by Constituents in a manner sufficient to form a binding contract between Customer and Constituents under Applicable Law; (b) compliance with all Applicable Law, including without limitation intellectual property laws including the DMCA, in connection with the operation of and Constituent’s access to the Customer Sites; and (c) each Constituent’s compliance with the terms of the Customer Website Terms and this Agreement and any other acts or omissions of Constituents related to the Customer Sites or Neon One Property. Neon One may, from time to time in its discretion, offer sample documents or terms for reference in connection with the Customer Website Terms (“Neon One Sample Terms”), provided, however, that you expressly acknowledge and agree that such Neon One Sample Terms are provided as an accommodation only on an “AS-IS, WHERE IS” basis without warranty or guarantee of any kind, and the provision of any such Neon One Sample Terms will in no way limit, disclaim or modify your obligations under this Section 4.2 (Access and Use by Constituents) or otherwise under this Agreement. Further, Neon One is under no obligation to provide Neon One Sample Terms and may update, revoke, modify or limit access to Neon One Sample Terms at any time without notice.
- Good Standing Requirement. Customer represents and warrants that it is in good standing (as defined in Cal. Gov. Code 12599.9(a)(3)) with the Internal Revenue Service, California Franchise Tax Board, and California Attorney General (“Good Standing”), and covenants that it shall remain in Good Standing throughout the Term. For the avoidance of doubt, Neon One does not receive, hold, distribute, or otherwise control funds raised through the Neon One Products. If Customer ceases to be in Good Standing, or if Customer otherwise violates these Terms of Service or Applicable Law, Neon One may immediately suspend or limit or restrict Customer’s use of the Neon One Products as further described in Section 4.5.
- Customer’s Security Measures. Customer will implement and maintain appropriate and effective security procedures for the transmission of Customer Data to the Neon One Products or otherwise to Neon One. 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 and Services. Customer will notify Neon One immediately upon becoming aware of any suspected security breach regarding transmissions to or from the Neon One Products or Neon One.
- Suspension of Access. Neon One may in its discretion suspend Customer’s access to, or reasonably limit or restrict any use of, the Neon One Products, or any portion thereof, temporarily, in whole or in part, if, and so long as, in Neon One’s sole judgment, there is a risk to the security, integrity or availability of the Neon One Property or other risk that may interfere with the proper continued hosting or provision of the Neon One Products or Services or Customer or any Authorized User 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.
- Technical Requirements. Customer is responsible at its own cost and expense for procuring any necessary third party components or services required to use the Neon One Products as specified in the applicable Documentation. Neon One disclaims all liability arising from any Neon One Product or Service performance-related issues or other negative effects, losses or damages to the extent caused by: (a) any failure by Customer to operate the Neon One Products or Service in accordance with the technical requirements; or (b) any other products, services, or technology used by Customer in connection with the Neon One Products or Services.
- Customer Materials. Except as otherwise expressly set forth in this Agreement, Customer shall be responsible for the provision of all Customer Data and Customer Content that are required or reasonably requested by Neon One in connection with Neon One’s provision of the Neon One Products and Services. Customer understands and agrees that Neon One’s ability to provide the Neon One Products and Services required under this Agreement is directly related to and dependent upon Customer’s ability to provide certain Customer Data and Customer Content that are accurate, noninfringing and complete to Neon One on a timely basis. Neon One shall not be in breach of this Agreement for any failure to perform under this Agreement if Customer does not deliver the requisite accurate, noninfringing and complete Customer Data or Customer Content to Neon One on a timely basis.
- Copyright. All Licensed Content included in or accessed through the Site, Neon One Products or Services is the property of Neon One or its content suppliers and protected by United States and international copyright laws. The compilation of all content on the Site and Neon One Products is the exclusive property of Neon One and protected by United States and international copyright laws. The Site, Neon One Products and other software used to provide the Site and Neon One Products is the property of Neon One or its software suppliers and protected by United States and international copyright laws. Permission is granted to electronically copy and to print in hard copy portions of the Neon One Property for the sole purpose as expressly authorized in this Agreement. Any other use of Licensed Content or other Neon One Property, including reproduction, modification, distribution, republishing, republishing on third party sites, transmission, display or performance, in each case other than those as expressly authorized in this Agreement without the prior written permission of Neon One is strictly prohibited. Customer agrees not to change or delete any proprietary notices from any Neon One Property. Neon One respects the Intellectual Property Rights of others and we expect our users to do the same. If you believe any Licensed Content or other materials displayed through the Site, Neon One Products or Customer Sites infringes upon your or a third party’s copyrights, please follow the steps outlined in Section 4.9 below.
- Intellectual Property Rights Compliance.
- You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any Customer Content and, as applicable, Third Party Content. You represent and warrant that such Customer Content does not contain material subject to Intellectual Property Rights, unless you have necessary permission or are otherwise legally entitled to post the Customer Content and to grant Neon One the license described in this Agreement, and that the content does not violate any Applicable Law.
- You represent and warrant that you will not directly or indirectly circumvent any digital rights management measure or other standard technical measures applicable to any Customer Content or Third Party Content.
- Neon One will take down works in response to valid DMCA takedown notices and/or other intellectual property infringement claims and will terminate an Authorized User’s access to the Neon One Property if the Authorized User is determined to be a repeat infringer. If you believe that your content has been copied in a way that constitutes copyright or trademark infringement, or violates your publicity or other Intellectual Property Rights, please email us [email protected] or you may submit written notice to our designated copyright agent at:
Neon One, LLC
4545 North Ravenswood Ave.
Chicago, IL 60640
ATTN: VP of Marketing, designated Copyright Manager
[email protected]
+1 (888) 860-6366 - For us to process your infringement claim regarding content on the Site or Neon One Products, you must be the rightsholder or someone authorized to act on behalf of the rightsholder. Your notice must include:
- Identification of the copyrighted work(s), trademark, publicity rights, or other Intellectual Property Right that you claim is being infringed;
- Identification of the allegedly infringing material that is requested to be removed, including a description of the specific location (i.e., urls) on the Site, Platform or Products of the material claimed to be infringing, so that we may locate the material;
- Your contact information – at a minimum, your full legal name (not pseudonym) and email address;
- A declaration that contains all of the following:
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the Intellectual Property Rights owner, its agent, or the law;
- A statement that the information in the notice is accurate; and
- A statement under penalty of perjury that you are authorized to act on behalf of the owner of the intellectual property that is allegedly being infringed.
- Your physical or electronic signature (of your full legal name).
- Please note that we will forward your notice of intellectual property infringement, including your contact information, to the party who will have their content removed so they understand why it is no longer available and can also contact you to resolve any dispute.
- Digital Communication. Certain Neon One Products may include functionality permitting Customer to communicate with Authorized Users and other individuals and/or entities or organizations. As a condition to access and use of all such Neon One Products, Customer expressly agrees to the following additional terms and conditions of use.
- All communications utilizing Neon One Products must contain a valid Customer email address.
- Customer may not use Neon One Products to send email with an invalid “From” or Reply-to” address.
- Customer must be responsive to all replies utilizing Neon One Products including unsubscribe requests. Neon One Products will automatically include the unsubscribing section in the footer of email campaigns. Customer must respond to these unsubscribe requests within fourteen calendar days. Customer may not discard or delete any opt-out email until that email address has been deleted from the Customer list(s).
- Customer may not impersonate any person, entity or organization, including but not limited to a Neon One agent, or communicate under any name or alias Customer is not entitled or authorized to use.
- Customer and Authorized Users may not use Neon One Products to harass, threaten, embarrass, or otherwise cause distress to any person, entity or organization.
- Neon One may monitor Customer’s use of Neon One Products, including Customer Content. Neon One has the right, but not the obligation, to require Customer to remove any Customer Content utilizing Neon One Products that Neon One, in its sole discretion, determines to be harmful to its business reputation.
- Key Contact Information. In connection with entering into any Sales Order and/or setting up Customer’s account for the Neon One Products, Customer will be required to provide Neon One with the identity, email addresses, and phone numbers of Customer’s Primary, Billing and Technical contacts with respect to this Agreement (collectively, “Key Contacts”). Customer shall provide Neon One notice of any changes to Key Contact information within three (3) business days of any such changes. Updates shall be sent to [email protected].
- Third Party Offerings.
- Neon One may directly or indirectly use certain third party providers (“Third Party Providers”) and/or provide or make available Third Party Offerings, including without limitation through links to or integrations with third-party websites or applications such as (but without limitation) Third-Party Providers of payment processing-related services, and/or images or other content from third party licensors. The Third Party Offerings will not be deemed part of the Neon One Products and, Customer acknowledges and agrees that (a) without limitation of Section 4.12.3 below, access and use of Third Party Offerings, and any exchange of data between Customer and any Third Party Provider, is solely between Customer and the applicable Third Party Provider and is subject to any terms of use or service, end-user license agreement or other additional terms and conditions as made available by such Third Party Providers (the “Customer Third Party Agreement”); (b) access to and use of Third Party Offerings 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 Offerings under the terms of any Customer Third Party Agreement; (c) Neon One does not warrant or support Third Party Offerings, whether or not they are provided by Neon One or designated by Neon One as “certified” or otherwise and these Third Party Offerings are provided “as is” without warranty or guarantee; (d) Neon One is not responsible for the availability or content of any such Third Party Offerings, including any related opinions, advice, statements or advertisements; (e) subject to any limited license or other rights granted pursuant to an applicable Customer Third Party Agreement or Third Party Terms (as defined below), the applicable Third Party Providers or licensors own and shall retain all ownership right, title, and interest in and to the Third Party Offerings and all Intellectual Property Rights embodied therein or associated therewith; and (f) Customer shall be solely responsible for obtaining all rights, licenses, consents, permissions, power and/or authority necessary for Customer to access and use Third Party Offerings, including without limitation in connection with the Neon One Products and Services. Without limitation of the foregoing, to the extent that any Third Party Products are made available directly to Customer by Neon One or as part of the Neon One Products, subject to the terms and conditions of this Agreement, Customer is granted only a limited, non-exclusive, revocable, non-sublicensable and non-transferable sub-license, during the applicable Sales Order Term, to access and use, such Third Party Products solely in connection with the proper exercise of the License to the applicable Neon One Products, subject to and in accordance with any terms and conditions of the terms of service or use, license agreement or other applicable agreements for the Third Party Products between Neon One and the third party (“Third Party Terms”), provided that Neon One reserves the right to modify the Third Party Terms in the event Neon One adds or replaces Third Party Products or as modified by the third party pursuant to the Third Party Terms. Neon One will use commercially reasonable efforts to post the current Third Party Terms on the Site and/or otherwise notify Customer through email or an alert on the Site or Neon One Products when Neon One has posted revised Third Party Terms. All sublicenses granted hereunder are solely for Customer’s use in connection with the Neon One Products and will terminate on the earlier of expiration or termination of (i) this Agreement or (ii) the applicable Third Party Terms.
- 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 Offerings, or any other support or assistance provided by Neon One in connection with any Third Party Providers or Third Party Offerings.
- If Customer installs or enables Third Party Offerings for use with the Neon One Products, Customer acknowledges that Neon One may allow providers of those Third-Party Offerings to access Customer Data as required for the interoperation of such Third-Party Offerings with the Neon One Products. Neon One shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by providers of Third Party Offerings.
- Customer Solely Responsible for Customer’s Business Activities. Customer hereby acknowledges that, notwithstanding anything to the contrary, Neon One itself is not being engaged to, nor will it, provide counsel or any other direct or indirect advisory services to Customer or to manage Customer’s activities; and that any such counsel or management of any such activities will be done by Customer or by other parties engaged by Customer for that purpose. Without limitation of the generality of the foregoing, Neon One does not guarantee any level of success in terms of donations, sponsorships, sales, memberships, or any other aspect of Customer’s business or operations.
- Authorized Access and Use.
- FEES AND PAYMENT TERMS.
- Fees. Unless otherwise provided in the applicable Sales Order or Documentation, access to Neon One Products and Services are purchased as subscriptions for the term stated in the applicable Sales Order. Customer agrees to pay the fees indicated in each applicable Sales Order (the “Fees”) in accordance with the terms and conditions set forth in the Sales Order and this Article 5. Unless otherwise expressly set forth in the applicable Sales Order, (a) all Fees are quoted and payable in United States dollars, (b) Fees are based on Neon One Product and Service subscriptions purchased and not actual usage, (c) payment obligations are non-cancelable and amounts paid are non-refundable unless otherwise expressly set forth in this Agreement, and (d) quantities purchased cannot be decreased during the relevant Sales Order Term.
- Fee Increases.
- Annual Adjustments. During the Initial Sales Order Term and any Renewal Sales Order Term (each term as defined below in Section 10.1), Neon One may increase the Fees once per calendar year by providing at least thirty (30) days prior notice to you via email to the Key Contact for billing as identified above (any such increase, an “Annual Fee Adjustment”). Any such Annual Fee Adjustments shall take effect thirty (30) days following such notification or upon such later time as identified by Neon One in the applicable notice.
- Other Increases. In addition to, and without limitation of, any Annual Fee Adjustment implemented in accordance with Section 5.2.1, Fees may also be further increased or otherwise modified from time to time by Neon One. Any such additional increases or modifications to the Fees under this Section 5.2.2 (any such increase, an “Other Fee Increase”) shall take effect thirty (30) days following notification to you via email to the Key Contact for billing as identified above (the “Notification Period”). If you do not agree to such Other Fee Increase, you may terminate the Sales Order for the applicable Neon One Products and/or Services that are subject to the Other Fee Increase by providing notice to Neon One to the [email protected] address during the Notification Period. You acknowledge and agree that your continued access to or use of the Neon One Products after the Notification Period constitutes your immediate acceptance of any such Other Fee Increase. For clarity, Annual Fee Adjustments in accordance with Section 5.2.1 are not considered Other Fee Increases subject to this Section.
- Other Charges; Sales Order Changes. Notwithstanding the remainder of this Section 5, Neon One reserves the right to increase any fees or charges in its discretion (as to amount, frequency and timing) (a) for Neon One Products other than those that are subject to an outstanding Sales Order or new features or functionality of any Neon One Products for which Neon One, in its discretion, generally charges additional fees to its customers, (b) for any new or subsequent Sales Orders, (c) subject to the notice requirements of Section 10.1, for any Sales Order Renewal Term, and (d) for Fees, or components thereof, attributable to any of the following costs and fees: (i) pricing based on the percentage of another package price, (ii) payment processor partnership pass-through costs and fees, (iii) Intuit QuickBooks Solution Provider fees, (iv) Windfall service provider fees, (v) website app bundles, (vi) websites pricing per partner, or (vii) any other pass-through costs or fees that are modified by the relevant third party provider. Further, the Parties acknowledge and agree that an applicable Sales Order may set forth additional terms governing increases or other modifications to the Fees, and in the event of any conflict between the terms of this Section 5.2 and any such additional terms expressly set forth in a Sales Order, such expressed terms of the Sales Order shall govern and control solely with respect to such Sales Order.
- 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.
- Payment Terms. Unless otherwise expressly modified by the applicable Sales Order or Additional Terms for a particular Neon One Product or Service, all Fees will be due and payable by Customer within thirty (30) days after their respective invoice date from Neon One.
- Payment Processing/Settlement. Neon One offers Customers the option to process payments in connection with their use of the Neon One Products through Neon One’s Neon Pay Product or, for select customer (as determined by Neon One), a Neon One Merchant Account. If you choose to process payments using Neon Pay or, as offered by Neon One, a Neon One Merchant Account, you must agree to the applicable Additional Terms and pay the applicable Fees in connection with such Neon One Products. If you choose to use a third party payment processor supported by Neon One in lieu of the aforementioned Neon One Products, applicable external gateway support Fees will apply as identified in the Sales Order. In any event, Customer shall be responsible for reconciliation services, including all charge backs (credit card adjustments due to Transaction cancellation) and associated chargeback fees of any kind whatsoever against any and all merchant accounts established by Neon One for the purpose of consummating Transactions conducted on behalf of Customer through the Neon One Products as may be further described in the Additional Terms. As used in this Agreement, except as otherwise specified in any Sales Order or Additional Terms, “Transactions” means all online financial transactions conducted on Customer’s behalf through the use of any Neon One Products. Any assistance provided to Customer by Neon One related to reconciliation services shall be billed at Neon One’s then current hourly rates.
- Late Fees. If any Fees are not paid by Customer 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. In addition, Neon One reserves the right to charge interest, pursuant to this Section, on any reconciliation or chargeback fees for which Customer is responsible for pursuant to any applicable Additional Terms.
- Notice of Disputed Charges; No Setoff; No Refunds. All charges and invoices shall be deemed accurate and valid unless Customer notifies Neon One at [email protected], and in accordance with any further instructions on the applicable invoice, within ninety (90) days of the date of the processing of the charge or date of the invoice, as applicable, and Customer hereby waives any and all rights to later dispute any such charges or invoices. 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. For the avoidance of doubt, Fees assessed on a periodic basis (e.g., annually) shall be payable by Customer throughout the applicable Sales Order Term, in accordance with this Agreement, regardless of whether Customer has used any Neon One Property or Services. 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.
- Suspension of Service and Acceleration. If any amount owed by Customer under this Agreement or any other agreement between Customer and Neon One is ten (10) or more days overdue, Neon One may, without limiting Neon One’s other rights and remedies, accelerate Customer’s entire unpaid Fee obligations under this Agreement or such agreements so that all such obligations become immediately due and payable, and suspend the Neon One Products and Services and any other services to Customer until such amounts are paid in full.
- PROPRIETARY RIGHTS.
- Ownership of Neon One Property. This is a subscription agreement for use of the Neon One Products and applicable Services and not an agreement for purchase or sale. Customer acknowledges that: (a) it is obtaining only a limited right to use the Neon One Property and applicable Services and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder, no ownership rights are being conveyed to Customer under this Agreement; and (b) the Neon One Products are offered as an online, hosted solution and Customer has no right to obtain a copy of any Neon One Property used to provide the Neon One Products. 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.
- Ownership of Customer Data. Customer owns and shall retain all ownership right, title, and interest in and to the Customer Data and Customer Content and any and all Intellectual Property Rights embodied therein. Neon One shall have no right, title, or interest in or to the Customer Data and Customer Content other than the limited license rights expressly set forth in this Agreement.
- 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 the Licensed Content, Output and, unless otherwise expressly set forth in the applicable Sales Order, any Deliverables, provided or otherwise made available to Customer by Neon One in connection with this Agreement for the purposes specified in the applicable Documentation (or, if no such purposes are specified, for use solely in connection with Customer’s internal business operations) in accordance with the applicable Documentation and Sales Order, subject to any limitations set forth therein.
- License to Neon One.
- General. Customer hereby grants to Neon One and its Affiliates a fully-paid up, nonexclusive, irrevocable, transferrable, sublicensable, worldwide license to process, reproduce, store, display, modify, translate, create derivative works from, make available and otherwise use Customer Data and Customer Content during the Term in connection with the performance of Neon One’s obligations under this Agreement and for purposes of developing, maintaining and improving the Neon One Property and Services provided to Customer under this Agreement.
- Aggregated Data License. Without limitation of Section 6.4.1 or any applicable terms of the Privacy Policy, (a) Company acknowledges and agrees that Neon One shall have the right to monitor, collect and analyze Customer Data, Customer Content and other data and other information relating to the provision, use, and performance of various aspects of the Neon One Property and Services, and (b) 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, selling, licensing, otherwise commercializing, delivering, and using Neon One’s current and future products and services as they may be provided to Customer or other customers of Neon One; provided, however, that all such use of the Customer Data will be aggregated, de-identified or anonymized in a manner that does not designate or identify Customer or its Authorized Users as the source of such data or information.
- 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.
- Feedback. If Customer (including any Authorized User) provides any comments, questions, recommendations, suggestions, or related information to Neon One, by any means, concerning the Neon One Property or Services (collectively, “Feedback”), Customer hereby grants Neon One a perpetual, irrevocable, royalty-free, fully paid-up, worldwide, transferable, sublicensable license to use, copy, modify, create derivative works of, publicly display, publicly perform, distribute and otherwise exploit, without any attribution or compensation to Customer or any Authorized User, any and all Feedback for any and all purposes and applications, including without limitation in connection with the Neon One Property and Services or any of Neon One’s other products or services provided that, for clarity, neither Customer nor Authorized Users have any right to compel any such use.
- REPRESENTATIONS AND WARRANTIES.
- 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.
- Additional Representations and Warranties of Neon One. Neon One represents, warrants and covenants that: (a) the Neon One Products will perform substantially in accordance with the then-currently applicable Documentation when used in accordance with the terms and conditions of this Agreement, (b) the Deliverables will substantially conform to any applicable requirements set forth in the applicable Documentation or Sales Order at the time of delivery to Customer, and (c) the Services will be provided in a professional, workmanlike manner with reasonable care and skill; provided, however, in each case Neon One will not be responsible for any non-conformity or non-compliance that: (i) arises out of Customer’s use of the Neon One Property or Services other than as expressly permitted under this Agreement and the Documentation or any other unauthorized use, reproduction, or distribution of the Neon One Property or Services; (ii) arises out of any modification or alteration of the Neon One Property or Services by anyone other than Neon One; (iii) arises out of the use of Neon One Property in combination with any other software or equipment not approved in writing by Neon One; (iv) arises out of Third Party Offerings; or (v) 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”). For any breach of the foregoing warranties, Customer’s sole and exclusive remedy, and Neon One’s sole and exclusive liability, is that Neon One will, at Neon One’s sole option, (A) make such alterations, modifications or adjustments to the Neon One Products, Deliverables or Services to cure the breach without materially reducing the features or functionality thereof, (B) replace the Neon One Products, Deliverables or Services with a substantially similar substitute that conforms to such warranty; or (C) if none of the foregoing remedies can be achieved after the exercise of commercially reasonable efforts, terminate this Agreement or the applicable Sales Order and refund to the Customer a pro rata portion of any prepaid Fees for the Neon One Products for the remainder of the applicable Sales Order Term subsequent to such termination and for any Services not yet performed as of the date of such termination.
- Additional Representations and Warranties of Customer. Customer hereby represents, warrants and covenants to Neon One, on behalf of Customer and all Authorized Users, that: (a) Customer and/or the Authorized User submitting any Customer Data or Customer Content has collected, compiled and generated the Customer Data and Customer Content in compliance with all Applicable Law and any applicable privacy policies and third party terms or agreements; (b) the provision of all Customer Data and Customer Content to Neon One hereunder is in compliance with all Applicable Law and any applicable privacy policies and third party terms or agreements; (c) Customer or such Authorized User has all rights necessary to grant Neon One the right to use and disclose all Customer Data and Customer Content in accordance with the terms of this Agreement; (d) the provision of all Customer Data or Customer Content to Neon One, and Neon One’s access, storage, processing and other use of the Customer Data and Customer Content in connection with the performance of its obligations or exercise of its rights under this Agreement will not violate any Applicable Law or otherwise infringe, misappropriate or violate any rights of a third party, including any privacy rights or Intellectual Property Rights of any third parties; (e) there are no threatened or pending proceedings involving any Customer Data or Customer Content; (f) all Customer Data and Customer Content provided or otherwise made available to Neon One is accurate, noninfringing, current and complete; and (g) 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 and Customer Content shall not contain any Personal Information.
- Warranty Disclaimers. 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 OFFERINGS OR OTHER THIRD PARTY SOFTWARE, SERVICE, HARDWARE OR CONTENT 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 MAKE ANY WARRANTY OR OTHER COMMITMENT (A) THAT THE OPERATION OF THE NEON ONE PROPERTY OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED OR ERROR FREE; (B) THAT ANY DEFECT OR MALFUNCTION IN THE NEON ONE PROPERTY OR SERVICES IS CORRECTABLE OR WILL BE CORRECTED; OR (C) REGARDING THE USE, OR THE RESULTS OF, USE OF THE NEON ONE PROPERTY OR SERVICES IN TERMS OF THEIR ACCURACY, QUALITY, RELIABILITY, CORRECTNESS, TIMELINESS, COMPLETENESS, AVAILABILITY OR OTHERWISE.
- 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 and Services (“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.
- INDEMNIFICATION.
- 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 (a) a claim that the Neon One Property or Services infringe, misappropriate or violate any Intellectual Property Rights of any third party, or (b) Neon One’s gross negligence, willful misconduct or fraud. Notwithstanding the foregoing, Neon One shall have no liability to the Customer for any Claim to the extent that such Claim involves an Excluded Claim.
- 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) the Customer Sites (excluding any Neon One Property incorporated therein), Customer Data or Customer Content, including without limitation (i) a claim that the Customer Sites (excluding any Neon One Property incorporated therein), Customer Data, or Customer Content, or Customer’s provision of the Customer Data or Customer Content to Neon One in connection with this Agreement or Neon One’s access to or provision or use of the Customer Data, Customer Content or Customer Sites pursuant to the rights and obligations 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, or (ii) any products, services, content or information displayed, offered or sold by Customer through the Customer Sites or Customer’s other activities conducted through the Customer Sites; (b) Customer’s use of the Neon One Property or Services other than Claims subject to indemnification by Neon One under Section 8.1; (c) Excluded Claims; (d) Customer’s failure to comply with Applicable Law or any Customer Third Party Agreement or Third Party Terms in connection with its performance under this Agreement, or (e) Customer’s gross negligence, willful misconduct or fraud.
- Indemnification Processes and Procedures. The party seeking indemnification pursuant to this Article 8 (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.
- Options Upon Infringement Claim. In addition, if any of the Neon One Property or Services 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:
- procure the right for the Customer to continue using the Neon One Property or Services in accordance with the provisions of this Agreement;
- make such alterations, modifications or adjustments to the Neon One Property or Services so that the infringing product or technology becomes non-infringing without a material reduction in features or functionality thereof;
- replace the Neon One Property or Services with a non-infringing substantially similar substitute; or
- if none of the above remedies can be achieved after the exercise of commercially reasonable efforts, terminate this Agreement and refund to the Customer a pro rata portion of any prepaid Fees for the Neon One Products for the remainder of the applicable Sales Order Term subsequent to such termination and for any Services not yet performed as of the date of such termination.
- Sole Remedy. THIS ARTICLE 8 STATES NEON ONE’S ENTIRE LIABILITY, AND THE CUSTOMER’S SOLE REMEDIES, FOR ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS IN RELATION TO THE NEON ONE PROPERTY OR SERVICES.
- CONFIDENTIALITY.
- 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 will be deemed the Confidential Information of Neon One, (ii) the Neon One Property is the Confidential Information of Neon One, and (iii) without limitation of the rights granted under Section 6.4, the Customer Data is the Confidential Information of Customer.
- 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 in this Agreement; 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 in this Agreement. 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 6.4.
- 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, including without limitation to the extent certain Confidential Information is required to be disclosed pursuant to any Applicable Law governing access to and disclosure of public records, 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.
- Return of Confidential Information. Subject to the terms and conditions of Section 10.5, 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 6.4), subject to the ongoing obligation to maintain the confidentiality of Confidential Information in accordance with the terms of this Section 9.
- Publicity. Customer hereby authorizes Neon One, in Neon One’s 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 websites, 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.
- TERM AND TERMINATION.
- Initial Term and Renewal. Each Sales Order shall begin on the effective date indicated in the Sales Order and continue for the initial term of access to the Neon One Property as specified in the applicable Sales Order (“Initial Sales Order Term”). The parties hereby agree that (a) if no effective date is indicated in the applicable Sales Order, the effective date shall be the date of entering into the Sales Order, and (b) if no initial term of access to the Neon One Property is specified in the applicable Sales Order, the Initial Sales Order Term shall be twelve (12) months. At the conclusion of the Initial Sales Order Term indicated in the applicable Sales Order, unless otherwise expressly stated in the Sales Order, each Sales Order shall automatically renew for additional periods equivalent to the Initial Sales Order Term (each, a “Renewal Sales Order Term” and together with the Initial Sales Order Term, collectively, the “Sales Order Term”), unless notice of termination is given (which notice must include, with respect to notice to Neon One, notice to the [email protected] address) at least thirty (30) days prior to the expiration of the Initial Sales Order Term or the then-current Renewal Sales Order Term, as applicable. Notwithstanding Section 5.2, Neon One reserves the right to increase or otherwise modify any Fees applicable to a Renewal Sales Order Term at Neon One’s discretion, provided that Neon One will provide notice to Customer at least thirty (30) days prior to the end of the then-current Initial Sales Order Term or Renewal Sales Order Term of any such increase or modification to take effect upon the commencement of the applicable Renewal Sales Order Term. The term of this Agreement shall continue for so long as any Sales Order Term remains in effect, unless terminated as provided for herein (the “Term”).
- Termination for Cause. In the event that either party is in material breach of the terms of this Agreement, the non-breaching party may terminate this Agreement and/or the applicable Sales Order on thirty (30) days prior notice written notice (or fifteen (15) days in the event of a breach of Customer’s payment obligations hereunder); provided however, that this Agreement or the Sales Order shall not be terminated as provided for herein in the event that the breaching party cures the breach to the reasonable satisfaction of the non-breaching party within such notice period or takes material steps reasonably satisfactory to the non-breaching party to do so within such notice period.
- Insolvency Event. Either party may terminate this Agreement and all Sales Orders by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for the other party or its property; (b) the other party makes a general assignment for the benefit of its creditors; (c) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the other party becomes insolvent or is liquidating, dissolving or ceasing business operations.
- Termination Without Cause. Neon One may terminate this Agreement or any Sales Order for any reason upon ninety (90) days written notice to Customer, provided that Customer shall not be required to pay any future Fees attributable to the remainder of the Sales Order Term after the effective date of such termination without cause.
- Effects of Termination. In the event of any expiration or termination of this Agreement, Customer and its Authorized Users shall no longer have access to Neon One Products and shall immediately cease any access to or use of the Neon One Property, Customer’s passwords will become invalid and Customer shall, within twenty (20) days, return to Neon One any copies of the Documentation and any other Neon One Confidential Information. Except as otherwise specified in the Sales Order or applicable Documentation, Customer acknowledges that following expiration or termination of this Agreement or any Sales Order it shall have no further access to any Customer Data or Customer Content from Neon One, and Neon One may delete all Customer Data and Customer Content that has been stored by Neon One pursuant to this Agreement or such applicable Sales Order.
- 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 rights and obligations with respect to confidentiality, indemnification, and Intellectual Property Rights and the limitations of liability and warranty disclaimers.
- LIMITATIONS OF LIABILITY.
- 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), OR FOR ANY DAMAGES OR LOSSES FOR LOSS OF PROFITS, LOSS OF PRODUCTION OR EXPECTED SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA OR INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF NEON ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Liability. EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES AS A RESULT OF NEON ONE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1(A), NEON ONE’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND UNDER ANY THEORY OF LIABILITY) SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY THE CUSTOMER TO NEON ONE UNDER THE SALES ORDER APPLICABLE TO THE CLAIM GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
- 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.
- GENERAL TERMS.
- 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.
- 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.
- 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, actions or requirements (including laws, regulations, orders, advisories, disapprovals or failure to approve) of any governmental or public health agencies or authorities (whether national, statewide, municipal, or otherwise), communication or utility failures, epidemic, public health emergency, quarantine restriction, or casualties.
- 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.
- Notices. Except as otherwise set forth herein, any notice required or permitted to be given by either party under this Agreement, including without limitation notices relating to non-renewal and/or termination, shall be in writing and shall be (a) 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 Sales Order or to such other address of which a party provides notice to the other party; or (b) sent by email (i) to the Key Contacts or any other address as set forth on the Sales Order (or to such other address of which you provide notice to Neon One) with respect to notices to Customer; or (ii) to the [email protected] address with respect to notices 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.
- 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.
- Assignment. Customer shall have no right to transfer or assign this Agreement or any Sales Order or the Customer’s rights or obligations under this Agreement or any Sales Order, whether by operation of law or otherwise, 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 any Sales Order or Neon One’s rights or obligations under this Agreement or any Sales Order, 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.
- No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- 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.
- 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.
- 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.
- California Users and Residents.
- Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Neon One must be addressed to our agent for notice and sent via certified mail to that agent. For our agent’s most current contact information, please send a request to Neon One pursuant to Section 12.5 (Notices).
- Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- Headings. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
- 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.
- Entire Agreement; Order of Precedence. This Agreement, including all Sales Orders, 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. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Sales Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are expressly rejected by Neon One and shall be null and void. Except as explicitly stated elsewhere in the Agreement, in the event of a conflict or inconsistency between the provisions of the components of the Agreement, then the following order of precedence shall apply: (a) the Sales Order’s terms and conditions shall take precedence over any other component of the Agreement; (b) then the Additional Terms; and (c) then these Terms of Service.
