Last updated: December 9, 2022
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF US AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXT/CALLS MAY INCLUDE OPERATIONAL MESSAGES ABOUT YOUR USE OF THE SERVICES. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
- Overview. NeoManage provides an all-in-one property management platform for homeowners associations (“HOAs”) to collect HOA dues from members, pay vendor invoices, manage accounting records and other maintenance related issues.
- The Services.
- Permitted Use. Subject to Customer’s and its Users’ compliance with the terms and conditions of this Agreement any applicable Additional Service Terms that apply to certain Services, and the Documentation, NeoManage grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right, during the term of this Agreement, to allow Users to: (1) access and use the Platform; and access and use the Platform and the Services; (2) install and use one object code copy of the Software on a mobile device that is owned or controlled by Customer or such Users; and (3) use and reproduce, without modification, a reasonable number of copies of the Documentation (in each case, solely for Customer’s internal business purposes). NEOMANAGE will use commercially reasonable efforts to make the Services and Platform available, during the Subscription Term, to Customer and its Users solely for Customer’s internal business purposes.
- Bank Accounts. We may, on your behalf, establish a Bank Account for you to use with the Services through our third-party partner. Banking Services are provided by Blue Ridge. When you open the Bank Account, we will ask you for your name, address, date of birth, and other identifying information. We may also ask to see an identifying document such as a driver’s license. Your Bank Account functionality will be limited until you have submitted, and we have reviewed and approved, all required information. You may not use the Bank Account for personal, family or household purposes. You may designate an authorized person to act on behalf of the HOA (e.g., conduct transactions) (“Agent”), and you agree to notify NeoManage promptly in writing of any change in the authority of any person authorized to act with respect to your Bank Account. For purposes of the Services, you hereby appoint NeoManage as your Agent and expressly grant NeoManage the authority to open your Bank Account and direct payments to applicable parties at your request.
- Restrictions. Customer and its Users will not (and will not permit anyone else to) do any of the following: (a) distribute, rent, lease, sell, sublicense, or otherwise permit third parties to access or use the Services; (b) use the Services on behalf of, or to provide any product or service to, third parties (e.g., as a service bureau); (c) use the Services to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code of the Services, Platform, Software or other NeoManage Technology used to provide the Services (except to the extent expressly permitted by Law, in which case Customer must provide NeoManage with at least seven (7) days’ prior written notice before exercising its right under Law); (e) modify or create derivative works of the Services or copy any element of the Services; (f) remove, alter, or obscure any proprietary notices from the Services; (g) perform or conduct any benchmarking or similar activities (including publishing benchmarks or performance information about the Services); (h) circumvent, disable, or otherwise interfere with the Services’s operation, security, or other technical features or measures of the Services or of the NeoManage Technology (including any access or usage restrictions); (i) conduct any security or vulnerability testing of the Services; or (j) transmit or upload any viruses, Trojan Horses, backdoors, malware, or any other forms of harmful or malicious materials to or through the Services.
- Prohibited Uses. Customer acknowledges and agrees that: (1) it will not use the Services with Prohibited Data or for High Risk Activities; (2) the Services is not intended to meet any obligations under Law with respect to any such use (including HIPAA requirements); and (3) under no circumstance is NeoManage deemed to be a “Business Associate” as defined under HIPAA. In no event will NeoManage have any liability to Customer or to any third party for Prohibited Data or use of the Services in connection with High Risk Activities. Customer will use, and will require each of its Users to use, its best efforts to prevent any unauthorized access to or use of the Services and will immediately notify NeoManage at support@NeoManage.com if it becomes aware of, or has a reasonable basis to believe that, any unauthorized access to or use of the Services has occurred. If there is any unauthorized access or use by any third party who obtained access to the Services directly or indirectly through Customer or its Users (including through their Accounts), Customer will take, and will cause its Users to take, all steps necessary to terminate the unauthorized access or use by such third party. Customer and its Users will provide all cooperation and assistance requested by NeoManage to prevent or terminate unauthorized access to or use of the Services.
- Modifications to the Services. NeoManage reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notifying Customer. NeoManage will have no liability for any change to the Services or any suspension or termination of Customer’s or its Users’ access to or use of the Services. Customer should retain copies of any Customer Data used in connection with the Services so that Customer will have permanent copies of Customer Data in the event the Services is modified in such a way that Customer or its Users lose access to such Customer Data.
- Support. To the extent Customer or its Users experience any issues relating to the Services, please contact us at support@ neomanage.com. Notwithstanding the foregoing, Customer hereby acknowledges and agrees that NeoManage is under no obligation to support or maintain the Services or to provide any updates, upgrades, or other technical or maintenance support to Customer or any of its Users with respect to the Services.
- Customer Data.
- Permitted Use. Customer hereby grants NeoManage a non-exclusive, royalty-free, fully paid-up, worldwide license, during the Subscription Term, to use, copy, store, transmit, publicly display, modify and create derivative works of Customer Data to provide the Services and as otherwise permitted under this Agreement, including to collect, generate, and derive Usage Data.
- Obligations. NeoManage will implement reasonable technical and organizational measures designed to protect the Services, Platform and Customer Data from unauthorized access, use, or disclosure. Customer is solely responsible for its Customer Data, including its content and accuracy, and for backing up Customer Data.
- Location. NeoManage may store and process Customer Data in the United States or, upon Customer’s written request, in other countries specified by Customer (e.g., by its selection of a regional storage option if applicable); provided that storing and processing Customer Data in such other countries is permitted by Law.
- Data Export. During the Subscription Term and for the thirty (30) day period immediately following the date of its expiration or earlier termination, Customer may export its Customer Data from the Services and Platform using the export features described in the Documentation. Upon the lapsing of such thirty (30) day period, NeoManage will be under no obligation to store or retain Customer Data and may delete Customer Data at any time in its sole discretion.
- Suspension of Services. NeoManage may immediately suspend access to the Services and related services if: (1) NeoManage reasonably believes, in its good faith, reasonable discretion, that Customer or any User has used the Services in an unauthorized manner or that Customer’s use of the Services exceeds any usage limits or restrictions imposed on it by NeoManage; (2) Customer’s account is thirty (30) days or more overdue; or (3) NeoManage reasonably believes, in its good faith, reasonable discretion, that Customer’s or its Users’ acts or omissions may pose a risk of harm to others or to the security, operation, availability, stability, or integrity of the Services or the NeoManage Technology. Where practicable and at its sole discretion, NeoManage will use reasonable efforts to provide Customer and its Users with prior notice of the suspension. NeoManage will use reasonable efforts to restore Customer’s and its Users’ access to the Services in accordance with this Agreement once the basis of such suspension is resolved to NeoManage’s satisfaction.
- Commercial Terms.
- Subscription Term. The initial Subscription Term will be as set forth on the applicable Order Form and will renew for successive terms equal in length to the then-current Subscription Term listed on the applicable Order Form (each, a “Renewal Term”) unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term.
- Fees. Use of the Services (including certain features or functionality of the Services) may require you to pay fees. Fees to be paid by Customer will be established on the applicable Order Form. All fees are denominated, and will be paid by Customer, in U.S. Dollars. Except as expressly set forth herein, any and all fees, costs, and expenses payable under this Agreement are non-cancellable and non-refundable. NeoManage reserves the right to determine pricing for the Services. NeoManage will make reasonable efforts to keep pricing information published on NeoManage’s marketing website (available at www.neomanage.com), the Services up to date, but please check them periodically for current pricing information. NeoManage may change the fees for the Services (including any feature or functionality of the Services), including additional fees or charges, and NeoManage will notify Customer of any such changes before they apply on a going-forward basis for any Subscription Term commencing after NeoManage’s notification thereof. Except as may be otherwise agreed to by the parties in writing, NeoManage’s then-current pricing applicable for the Services and Platform will apply to your use of the Services. NeoManage, at its sole discretion, may make promotional offers with different features and different pricing to any of NeoManage’s other customers. These promotional offers, unless made to Customer, will not apply to Customer’s offer or this Agreement.
- Payment Terms. Unless stated otherwise on an Order Form, fees will be automatically charged to your Bank Account on the first day of each month of the Term. Fees for renewal Subscription Terms are at NeoManage’s then-current rates, regardless of any discounted pricing for a prior Subscription Term or promotional offers previously extended to Customer. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. Customer will reimburse any documented costs or expenses incurred by NeoManage (1) to collect any fees or expenses that are not paid when due (including, without limitation, reasonable attorneys’ fees). Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its payment of fees due under this Agreement, whether domestic or foreign (“Taxes”), other than Taxes based on NeoManage’s income. All fees and expenses are exclusive of Taxes.
- Affiliate Orders. Customer may allow any of its Affiliates to procure Services under this Agreement; provided that NeoManage may refuse to provide the Services to any such Affiliate in its sole discretion. Such Affiliate will be deemed to be the “Customer” but Customer will at all times be solely liable for such Affiliate’s and its Users’ access to and use of the Services and their compliance with the terms and conditions set forth herein (including any fees due by any such Affiliate).
- Warranties and Disclaimers.
- General. Each party represents and warrants to the other party that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of its obligations under this Agreement.
- Customer. Customer represents and warrants to NeoManage that: (a) it will comply with all Laws; and (b) it has provided all notices to and obtained all necessary and sufficient rights, permissions, capacity, consents, and authority to fully comply with its obligations under this Agreement (including, without limitation, (1) to submit, upload, transmit, or use Customer Data in connection with the Services, (2) to grant NeoManage the rights in Section 4.1 (Permitted Use Use) and in Section 10.2 (Feedback)), (3) to authorize NeoManage’s appointment as Agent in accordance with Section 2.3, without violating Laws, infringing, misappropriating, or otherwise diluting any third-party rights (including intellectual property, publicity, privacy, or other proprietary rights), or breaching any terms or conditions in any agreement or privacy policies with a third party.
- Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 (WARRANTIES), THE SERVICES, DELIVERABLES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEOMANAGE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO EACH OF THE FOREGOING, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, OR THAT SPECIFIC MERCHANTS WILL PERMIT PURCHASES USING CARDS ISSUED BY BLUE RIDGE; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. NEOMANAGE DOES NOT WARRANT THAT THE SERVICES, ANY PORTION OF THE SERVICES, ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, OR THE DELIVERABLES, IN EACH CASE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND NEOMANAGE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER OR ITS USERS FROM THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES), OR THE NEOMANAGE ENTITIES (AS DEFINED BELOW) WILL CREATE ANY WARRANTY REGARDING ANY OF THE NEOMANAGE ENTITIES OR THE SERVICES, OR ANY SUCH ADVICE OR INFORMATION THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. THE NEOMANAGE ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES, OR CUSTOMER’S OR ITS USERS’ DEALINGS WITH ANY OTHER SERVICE USER. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S AND ITS USERS’ USE OF ANY PORTION OF THE SERVICES IS AT YOUR AND THEIR OWN DISCRETION AND RISK, AND THAT THE NEOMANAGE ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES) OR ANY LOSS OF DATA, INCLUDING CUSTOMER DATA. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 8 (WARRANTIES AND DISCLAIMERS) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. NeoManage does not disclaim any warranty or other right that NeoManage is prohibited from disclaiming under Law.
- Term and Termination.
- Term. Unless stated otherwise on an Order Form, this Agreement starts on the Effective Date and continues until expiration or termination of all Subscription Terms.
- Termination. Either party may terminate this Agreement, effective on written notice to the other party, if the other party: (1) materially breaches this Agreement, and such breach (i) is incapable of cure, or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; (2) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (3) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any bankruptcy or insolvency Law, which is not fully vacated, dismissed, or stayed within sixty (60) days after the commencement thereof; (4) makes or seeks to make a general assignment for the benefit of its creditors; or (5) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary in the foregoing, NeoManage may terminate this Agreement, effective on written notice to Customer in the event Customer or its Users’ breach Section 2.4 (Restrictions), Section 2.5 (Prohibited Uses), or Section 8.1 (Warranties).
- Effect of Termination. Upon expiration or termination of this Agreement: (1) Customer’s access to the Services and will cease, other than the limited right to use the Services solely for purposes of exporting Customer Data as described in Section 4.5 (Data Export); and (2) Customer will pay to NeoManage any fees or other amounts that have accrued prior to the effective date of the expiration or termination. At the disclosing party’s request or upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Data in accordance with Section 4.5). Copies of Customer Data and other Confidential Information may be retained in the receiving party’s standard electronic backups after deletion but will remain subject to this Agreement’s confidentiality restrictions and such backups copies may only be used for the sole purpose of ensuring compliance with this Agreement. The receiving party shall not acquire any express or implied rights of ownership in or control of the disclosing party’s Confidential Information other than the limited right to retain an electronic copy pursuant to this Section.
- Survival. All rights to payment, causes of action, and the following Sections will survive any expiration or termination of this Agreement: 2.2 (Users), 2.4 (Restrictions), 2.5 (Prohibited Uses), 4.1 (Permitted Use), 4.5 (Data Export), 7 (Commercial Terms), 8 (Warranties and Disclaimers), 9.3 (Effect of Termination), 9.4 (Survival), 10 (Intellectual Property), 11 (Usage Data), 12 (Limitations of Liability), 13 (Indemnification), 14 (Confidentiality), 15 (Required Disclosures), 19 (General Terms), and 20 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have, including those available at law or in equity.
- Intellectual Property.
- Reservation of Rights. Neither party grants the other any rights or licenses not expressly set forth in this Agreement. Except for NeoManage’s rights to use Customer Data as set forth in this Agreement, between the parties, Customer retains all intellectual property and other proprietary rights in Customer Data and Customer Materials provided to NeoManage. Except for Customer’s right to use the Services as set forth in this Agreement, NeoManage, its licensors, and its suppliers retain all intellectual property and other proprietary rights in the Services, and NeoManage Technology, including any modifications, enhancements or improvements to any of the foregoing.
- Feedback. If Customer or any of its Users provides NeoManage with feedback or suggestions relating to the Services or any other NeoManage offerings (including Trials and Betas) (“Feedback”), Customer hereby grants NeoManage an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Services and create other products and services. NeoManage will have no obligation to provide Customer or its Users with attribution for any Feedback provided to NeoManage.
- Usage Data. NeoManage may collect, generate, and derive Usage Data for NeoManage’s lawful business purposes, including to: (1) use it to monitor, operate, improve, and support the Services and its performance, security, and stability; (2) create analytics, benchmarking, and performance data and reports; (3) track usage for billing purposes; and (4) develop new products and services. Subscriber will not interfere with the collection of Usage Data. As between the Parties, NeoManage owns all right, title, and interest, including all intellectual property rights in and to, the Usage Data, the know-how and analytical results generated in the processing and use of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to the Services or NeoManage Technology made based on the Usage Data. NeoManage will not disclose Usage Data externally, including in benchmarks or reports, unless such Usage Data has been (a) de-identified so that it does not individually identify Customer, its Users, or any other person and (b) aggregated with usage data from other NeoManage customers.
- Limitations of Liability.
- Consequential Damages Waiver. SUBJECT TO SECTION 12.4, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE NEOMANAGE ENTITIES BE LIABLE TO CUSTOMER, ITS USERS, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO CUSTOMER’S OR ITS USERS’ ACCESS TO OR USE OF, OR ANY INABILITY TO ACCESS OR USE, THE SERVICES, OR ANY MATERIALS OR CONTENT PROVIDED OR MADE AVAILABLE IN CONNECTION THEREWITH, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY NEOMANAGE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
- Liability Cap. SUBJECT TO SECTION 12.4, TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE NEOMANAGE ENTITIES TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES, OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE THE AMOUNT YOU HAVE PAID TO NEOMANAGE FOR ACCESS TO AND USE OF THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE FIRST GIVING RISE TO THE CLAIM.
- Nature of Claims and Failure of Essential Purpose. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 (LIMITATIONS OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Exclusions. The limitations of liability in this Section 12 will not apply to: (1) breach of the confidentiality obligations set forth in Section 14 (Confidentiality); (2) Customer’s express payment obligations under this Agreement; (3) breach by Customer or its Users of Section 2.4 (Prohibited Uses); (4) a party’s gross negligence, willful misconduct, or fraud; or (5) to Customer’s indemnification obligations under Section 13.1 (Indemnification).
- Scope for Customer. Customer will indemnify, defend and hold harmless NeoManage, its Affiliates and their respective directors, officers, employers, agents, successors and assigns (collectively “NeoManage Parties”) from and against any third-party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (1) the Customer Data or Customer Materials; (2) its or its Users’ violations of Law, fraud, gross negligence, or willful misconduct; or (3) its or its Users’ breach or non-fulfillment of any representation, warranty, or covenant in this Agreement.
- Scope for NeoManage. NeoManage will defend or at its option settle any claims, demands, or actions brought by a third party against Customer (“Claims”) alleging that the authorized use of the Services infringes any U.S. patent, copyright, or trade secret right of a third party and NeoManage will pay any final judgments awarded in any such third party claim defended by NeoManage or settlements entered into by NeoManage. Notwithstanding the foregoing, NeoManage will have no obligation under this Section for Claims arising from: (a) combination of the Services with other software, hardware, products, or technology not provided by NeoManage; (b) any modification of the Services, in whole or in part, by anyone other than NeoManage; (c) the unauthorized use of the Services; or (d) use by Customer or its Users of any specified release of the Software or Platform after NeoManage notifies Customer that continued use may subject Customer to such claim of infringement, provided NeoManage provides Customer with a replacement release. If any portion of the Services becomes, or in NeoManage’s reasonable opinion is likely to become, subject to a Claim, then NeoManage may at its sole option and expense: (a) procure for Customer the right to continue using the Services; (b) replace the Services with a non-infringing equivalent; or (c) in the event that neither of the foregoing is reasonably practicable, terminate this Agreement and the licenses granted herein. THIS SECTION 13.2 STATES THE ENTIRE LIABILITY AND OBLIGATION OF NEOMANAGE, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF NEOMANAGE’S SERVICES OF ANY INTELLECTUAL PROPERTY RIGHTS.
- Definition. “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. NeoManage’s Confidential Information includes the terms and conditions of this Agreement, the Documentation, the Deliverables, the NeoManage Technology, Feedback, Usage Data, and any technical or performance information about the Services.
- Obligations. As the receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, (sub)contractors and other representatives (“Representatives”) having a legitimate need to know such Confidential Information in order to perform or evaluate the receiving party’s obligations under this Agreement; provided that (1) the receiving party will remain liable for the acts and omissions of such Representatives with respect to the Confidential Information of the disclosing party, and (2) such Representatives are bound by confidentiality obligations or professional obligations prohibiting the unauthorized disclosure or use of Confidential Information that are at least as protective as the terms of this Section 14.
- Exclusions. The confidentiality obligations set forth in this Section 14 (Confidentiality) do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt from the disclosing party under this Agreement without an obligation to maintain its confidentiality, (c) it rightfully received from a third party without an obligation to keep such information confidential, or (d) it independently developed without using or referencing the disclosing party’s Confidential Information.
- Remedies. The receiving party agrees that any breach or threatened breach of this Section 14 (Confidentiality) may cause substantial, irreparable harm to the disclosing party for which damages would be an inadequate remedy and, as such, the disclosing party may seek equitable relief, in addition to other remedies available at law or in equity, for any breach or threatened breach of this Section 14 (Confidentiality).
- Required Disclosures. Nothing in this Agreement prohibits the receiving party from making disclosures of the disclosing party’s Confidential Information, including disclosures of Customer Data, if required by Law, subpoena or court order; provided (if permitted by Law) the receiving party notifies the disclosing party in writing prior to any such disclosure, provides the disclosing party with an opportunity to obtain, and reasonably cooperates in any effort by the disclosing party to obtain, a protective order or confidential treatment of the Confidential Information to be disclosed.
- Trials and Betas. If Customer or any of its Users receives access to the Services or any features or functionality relating thereto on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), any access to or use of the Trials and Betas by Customer or its Users is permitted only for Customer’s internal evaluation and testing purposes during the period designated by NeoManage (not to exceed thirty (30) days unless otherwise agreed upon by the parties in writing). These Trials and Betas will be considered part of the Services and all provisions of this Agreement relating to the Services will apply to these Trials and Betas as well. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that NeoManage may never release, and their features and performance information are deemed to be NeoManage’s Confidential Information. NeoManage may suspend Customer’s and its Users’ access to the Trials and Betas at any time. Customer’s and its User’ use of Trials and Betas is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEOMANAGE PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US $50.00.
- Publicity. Neither party may make any public announcement relating to this Agreement except with the other party’s prior written consent or as required by Laws. NeoManage may reference Customer’s name and include Customer’s trademarks, logos, and other branding elements (“Marketing Materials”) in NeoManage’s customer lists, promotional materials, and in connection with its marketing, advertising, promotional, or sales practices or activities; provided that Customer may require that NeoManage cease further use of Marketing Materials upon written notice to NeoManage (except that NeoManage will not be obligated to cease its use of any tangible materials containing, embodying, or including Marketing Materials that are in existence at the time of NeoManage’s receipt of such notice from Customer) .
- Modifications to Agreement. NeoManage reserves the right to change or modify this Agreement (including the Policies) from time to time at its discretion. Please check this Agreement (including the Policies) periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will, unless otherwise stated, be effective thirty (30) days after posting or providing notice to Customer of the revisions. If a change to this Agreement (including the Policies) materially modifies Customer’s rights or obligations, NeoManage may require Customer to accept the modifications in order to continue to use the Services. To the extent Customer does not accept or agree to the modifications, Customer should, and will instruct its User to, discontinue all use of the Services. Any use of the Services by Customer or its Users after the date upon which such modifications becomes effective will be deemed to be Customer’s acceptance to the Agreement (including the Policies) as modified. Except as expressly permitted in this Section 18.1, this Agreement (including any Policies) may be amended only by a written agreement signed by authorized representatives of the parties to this Agreement.
- General Terms.
- Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, except that NeoManage may assign this Agreement without Customer’s consent in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any attempted assignment in violation of this Section 19.1 will be null and void and of no effect. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
- Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The parties hereby exclusively and irrevocably submit to, and waive any objection against, and shall not contest, the personal jurisdiction of the state and federal courts located in Santa Clara County, California with respect to any matter relating to this Agreement.
- Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
- Communications. Customer hereby agrees that NeoManage and those acting on NeoManage’s behalf may send Customer text (SMS) messages at the phone number provided to NeoManage. These messages may include operational messages about Customer’s or its Users’ use of the Services, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES FROM NEOMANAGE, YOU CAN EMAIL firstname.lastname@example.org OR REPLY TO ANY SMS MESSAGE FROM NEOMANAGE WITH “STOP” OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL TEXT MESSAGES FROM NeoManage, YOU CAN EMAIL email@example.com OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICES. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request. Your agreement to receive marketing texts is not a condition of any purchase on or use of the Services. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
- Customer Terms. The terms in any Customer purchase order, ordering document, or business form will not amend or modify this Agreement and are expressly rejected by NeoManage; any of these Customer documents are for administrative purposes only and have no legal effect.
- Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect. The failure to require performance of any provision will not affect a party’s right to require performance at any other time after that, nor will a waiver by a party of any breach of any provision of this Agreement be a waiver of any subsequent breach or a waiver of the provision itself.
- Force Majeure. NeoManage is not liable for any delay or failure to perform any of its obligation under this Agreement due to events beyond its reasonable control, including any act of God, act of war or terror, civil unrest, strike or other labor problem, embargo, unforeseen epidemic or pandemic, power failure, failure or degradation of the Internet, cyber-attack, flood, earthquake or other natural disaster, governmental act, or other similar.
- Subcontractors. NeoManage may use subcontractors and permit them to exercise NeoManage’s rights and to perform NeoManage’s obligations on behalf of NeoManage, but NeoManage remains responsible for their compliance with this Agreement.
- Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.
- Export. Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Services. Customer (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Services in violation of any U.S. export embargo, prohibition or restriction and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.
- Open Source. The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation or as specified by NeoManage upon prior written request by Customer. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
- Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services was developed fully at private expense. All other use is prohibited.
- Push Notifications. When you install our Software on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page. Communication. You agree that NeoManage may contact you by text message for Services-related information if you provide us with your phone number. For example, NeoManage may send you text messages to provide you with information about fraud alerts, deposit holds, amounts you owe NeoManage, and other information related to your use of the Services. You certify, warrant, and represent that the phone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the phone number you have provided to us. You agree to promptly alert us whenever you stop using a phone number. When NeoManage sends you a text message or call, NeoManage may use automatic dialers and artificial, text, or prerecorded messages. Standard message and data rates may apply to all text messages. You agree that NeoManage may monitor or record phone calls you have with NeoManage for any reason, including to monitor the quality of the Services you receive and to verify transaction related information. You agree that NeoManage is not required to remind you before or during each phone call that the conversation is subject to being monitored or recorded in accordance with applicable state and federal law.
- Apple iOS Terms. This Section 19.16 only applies to the extent you are using our Services on an iOS device. You acknowledge that this Agreement is between you and NeoManage only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (1) product liability claims; (2) any claim that the Services fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these terms, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms against you as a third-party beneficiary of this Agreement.
“Account” means an account enabling a User to access and use the Services through User login credentials.
“Additional Service Terms” means the rights and restrictions for particular Services located at: , (and any successor or related locations designed by NeoManage, as may be updated from time to time.
“Affiliate” means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Annual Credit” means an annual fee discount to be applied in equal increments based on Customer’s Bank Account balance (as determined on the last day in each month of the Term). This credit will offset the recurring fees charged to Customer.
“Bank Account” means a depository account with Blue Ridge which is managed by NeoManage.
“Blue Ridge” means Blue Ridge Bank, N.A., member FDIC.
“Customer Data” means any data, content, information or materials that Customer (including its Users) submits, uploads, or transmits to the Services, including from Third-Party Platforms.
“Customer Materials” means materials, systems and other resources that Customer provides to NeoManage in connection with the Services.
“Documentation” means NeoManage’s usage guidelines, acceptable use policy, and standard technical documentation for the Services that are provided or otherwise made available by NeoManage.
“High Risk Activities” means activities where use or failure of the Services could lead to death, property damage, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.
“NeoManage Technology” means any: (a) works of authorship, including computer programs (whether in source code or in executable code form), architecture, technical information, hardware, and equipment; (b) inventions (whether or not patentable), discoveries and improvements; (c) proprietary and confidential information, trade secrets and know-how; (d) databases, data compilations, and collections and technical data; (e) methods, procedures, practices, protocols, techniques, and processes; and (f) any other technology; in each case, which is a tangible embodiment of such technology and used by NeoManage to provide or otherwise make available the Services.
“Laws” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.
“Order Form” means an order form or other ordering document that identifies the Services that NeoManage will provide to Customer, in each case which is signed by the Parties and expressly references and incorporates this Agreement.
“Personal Data” means any information (i) relating to an identified or identifiable individual, or (ii) that is otherwise protected as “personal data,” “personal information,” or “personally identifiable information” under Data Protection Laws, where such information is contained within Customer Data and is processed by NeoManage in connection with this Agreement.
“Platform” means NeoManage’s proprietary online, cloud platform.
“Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (e) social security numbers, driver’s license numbers or other government ID numbers or (f) any data similar to the above protected under foreign or domestic Laws.
“Services” means collectively: (1) the Platform; (2) the Software; (3) the Documentation; and (4) NeoManage’s website at www.neomanage.com and related websites. The Services include exclude any Third-Party Platforms.
“Software” means the object code for any NeoManage mobile or other downloadable application provided or otherwise made available to Customer by NeoManage for use with the Services.
“Subscription Term” means the twelve (12) month period during which Customer may access and use the Services unless otherwise agreed to by the parties.
“Third-Party Platform” means any platform, add-on, service or product not provided by NeoManage that Customer elects to integrate or enable for use in connection with the Services.
“Usage Data” means any performance, analytical, or usage data or information relating to Customer’s (including its Users’) access to or use of the Services that is generated or otherwise collected by the Services, but excluding Customer Data.
“User” means any employee or contractor of Customer that is authorized by Customer to use the Services on its behalf and has created an Account.