Last updated December 7, 2023
IF YOU ARE PURCHASING PRODUCTS FROM NEAT THEN THE FOLLOWING TERM AND CONDITIONS APPLY:
DEFINITIONS
In these Terms and Conditions of Sale, "Seller" means Neat, "Buyer" means the person, firm, company or corporation by whom the order is given.
THE CONTRACT
All orders received by Seller are subject to these Terms and Conditions of Sale. No terms or conditions put forward by Buyer and no representations, warranties, guarantees or other statements not contained in Seller's quotation or Acknowledgement of Order nor otherwise expressly agreed in writing by Seller shall be binding on Seller.
No alteration or variation to the Contract shall apply unless agreed in writing by both parties. However, Seller reserves the right to effect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Contract Price nor the delivery date is affected.
VALIDITY OF QUOTATION AND PRICES
Unless previously withdrawn, Seller's standard quotation is open for acceptance within the period stated therein or, when no period is so stated, within thirty days after its electronic delivery date.
Prices are firm for delivery within the period stated in Seller's quotation and are exclusive of (a) Value Added Tax and (b) any similar and other taxes, duties, levies or other like charges arising for delivery outside the United States in connection with the performance of the Contract.
Prices (a) are for Goods delivered DAP Seller’s facility, Seller’s shipping point, exclusive of freight, insurance and handling unless otherwise stated in the Seller's quotation or order confirmation.
PAYMENT
Payment shall be made: (a) in full without set-off, counterclaim or withholding of any kind (save where and to the extent that this cannot by law be excluded); and (b) in the currency of Seller's order confirmation within thirty days of date of invoice unless otherwise specified by Seller’s Finance Department. Goods will be invoiced at any time after their readiness for dispatch has been notified to Buyer or after shipment has occurred. Without prejudice to Seller's other rights, Seller reserves the right to: (i)charge interest on any overdue sums at 4% above the base lending rate of DNB Bank, New York (or such higher rate stipulated by applicable law) during the period of delay; (ii) suspend performance of the Contract (including withholding shipment) in the event that Buyer fails or in Seller’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Contract or any other contract; and (iii) at any time require such reasonable security for payment as Seller may deem reasonable.
DELIVERY PERIOD
Unless otherwise stated in Seller’s order confirmation, all periods stated for delivery or completion run from the Effective Date and are to be treated as estimates only not involving any contractual obligations.
If Seller is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents (including but not limited to failure to provide specifications and/or such other information as Seller reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract Price shall both be adjusted accordingly.
If delivery is delayed due to any act or omission of Buyer, or if having been notified that the Goods are ready for dispatch, Buyer fails to take delivery or provide adequate shipping instructions, Seller shall be entitled to place the Goods into suitable storage at Buyer's expense. Upon placing the Goods into storage, delivery shall be deemed to be complete, risk in the Goods shall pass to Buyer and Buyer shall pay Seller accordingly.
FORCE MAJEURE
Force Majeure of any kind, unforeseeable production, traffic or shipping disturbances, war, acts of terrorism, fire, floods, unforeseeable shortages of labor, utilities or raw materials and supplies, strikes, lockouts, acts of government, and any other hindrances beyond the control of the party obliged to perform which diminish, delay or prevent production, shipment, acceptance or use of the goods, or make it an unreasonable proposition, shall relieve the party from its obligation to supply or take delivery, as the case may be, as long as and to the extent that the hindrance prevails. If, as a result of the hindrance, supply and/or acceptance is delayed by more than eight weeks, either party shall have the right to cancel the contract. Should the Seller’s suppliers fail to supply him in whole or in part , the Seller shall not be under obligation to purchase from other sources. In such cases, the Seller shall have the right to distribute the available quantities among his customers while at the same time taking into account his captive requirements.
DELIVERY, RISK & TITLE
Unless otherwise expressly stated in the Contract, the Goods will be delivered DAP, seller facility. Risk of loss of or damage to the Goods shall pass to Buyer upon delivery as aforesaid and Buyer shall be responsible for insurance of the Goods after risk has so passed. Delivery terms used in the Contract shall be defined in accordance with the latest version of Incoterms. Title to the Goods shall pass to Buyer upon delivery. Claims for shortfalls in quantity or for incorrect delivery shall be void if made more than 14 days after receipt by the customer.
DEFECTS AFTER DELIVERY
Seller warrants (i) subject to the other provisions of the Contract, good title to and the unencumbered use of the Goods; (ii) that Goods manufactured by Seller and/or Seller’s Affiliates shall conform with Seller's specifications therefore and be free of defects in materials and workmanship. Seller will make good by the supply of a replacement part or parts, any defects which, under proper use, care and maintenance, appear in Goods of Seller’s Affiliates' manufacture and which are reported to Seller within 12 calendar months after their shipment (the "Warranty Period") and which arise solely from faulty materials or workmanship: provided always that defective items are returned to Seller upon request during the Warranty Period. Repaired or replacement items will be delivered by Seller at Seller’s cost to Buyer. Goods replaced in accordance with this Clause shall be subject to the foregoing warranty for the unexpired portion of the Warranty Period or for ninety days from the date of their return to Buyer (or completion of correction in the case of Services), whichever expires later.
Seller shall not be liable for any defects caused by: fair wear and tear; materials or workmanship made, furnished or specified by Buyer; non-compliance with Seller's storage, installation, operation or environmental requirements; lack of proper maintenance; any modification or repair not previously authorized by Seller in writing. Seller's costs incurred in investigating and rectifying such defects shall be paid by Buyer upon demand. Buyer shall at all times remain solely responsible for the adequacy and accuracy of all information supplied by it.
The foregoing constitutes Seller's sole warranty and Buyer's exclusive remedy for breach thereof. No representations, warranties or conditions of any kind, express or implied, shall apply as to satisfactory quality, merchantability, fitness for any particular purpose or any other matter with respect to any of the Goods.
PATENT, ETC. INFRINGEMENT
Seller shall indemnify Buyer in the event of any claim for infringement of Letters Patent, Registered Design, Design Right, Trade Mark or Copyright ("Intellectual Property Rights") existing at the date of formation of the Contract arising from the use or sale of the Goods, against all reasonable costs and damages awarded against Buyer in any action for such infringement, or for which Buyer may become liable in any such action, provided always that Seller shall not be liable to so indemnify Buyer in the event that:(i) such infringement arises as a result of Seller having followed a design or instruction furnished or given by Buyer, or the Goods having been used in a manner or for a purpose or in a country not specified by or disclosed to Seller prior to the date of the Contract or in association or combination with any other equipment or software, or (ii) Seller has at its expense procured for Buyer the right to continue to use the Goods or has modified or replaced the Goods so that the Goods no longer infringe. (iii) Buyer has failed to give Seller the earliest possible notice in writing of any claim made or to be made or of any action threatened or brought against Buyer and/or Buyer has failed to permit Seller, at Seller's expense, to conduct and control any litigation that may ensue and all negotiations for a settlement of the claim, or (iv) Buyer has made without Seller's prior written consent any admission which is or may be prejudicial to Seller in respect of any such claim or action, or (v) the Goods have been modified without Seller's prior written authorization.
Buyer warrants that any design or instructions furnished or given by it shall not cause Seller to infringe any Intellectual Property Rights in the performance of Seller's obligations under the Contract and shall indemnify Seller against all reasonable costs and damages which Seller may incur as a result of any breach of such warranty.
LIMITATION OF LIABILITY
Supplier's maximum aggregate liability for any and all losses, liabilities, expenses (including legal expenses), damages, claims or actions incurred under or in connection with a specific order or a particular blanket order (CALL-OFF order) issued, arising in or by virtue of breach of contract, tort (including negligence), misrepresentation, breach of statutory duty, strict liability, infringement of intellectual property rights or otherwise, shall in no circumstances exceed a sum equal to the total price of the Call -Off in question.
STATUTORY AND OTHER REGULATIONS
If Seller's obligations under the Contract shall be increased or reduced by reason of the making or amendment after the date of Seller's quotation of any law or any order, regulation or bye-law having the force of law that shall affect the performance of Seller's obligations under the Contract, the Contract Price and delivery period shall be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.
COMPLIANCE WITH LAWS
Buyer agrees that all applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation those of the United States, the European Union and the jurisdictions in which Seller and Buyer are established or from which items may be supplied, and the requirements of any licenses, authorizations, general licenses or license exceptions relating thereto will apply to its receipt and use of goods. In no event shall Buyer use, transfer, release, export or re -export any such goods in violation of such applicable laws, regulations, orders or requirements or the requirements of any licenses, authorizations or license exceptions relating thereto. Buyer agrees furthermore that it shall not engage in any activity that would expose the Seller to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper payments, including but not limited to bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. Buyer agrees to comply with all appropriate legal, ethical and compliance requirements.
DEFAULT, INSOLVENCY AND CANCELLATION
Seller shall be entitled, without prejudice to any other rights it may have, to cancel the Contract forthwith, wholly or partly, by notice in writing to Buyer, if (a) Buyer is in default of any of its obligations under the Contract and fails, within 30 (thirty) days of the date of Seller's notification in writing of the existence of the default, either to rectify such default if it is reasonably capable of being rectified within such period or, if the default is not reasonably capable of being rectified within such period, to take action to remedy the default or (b) on the occurrence of an Insolvency Event in relation to Buyer. "Insolvency Event" in relation to Buyer means any of the following: (i) a meeting of creditors of Buyer being held or an arrangement or composition with or for the benefit of its creditors being proposed by or in relation to Buyer; (ii) a chargeholder, receiver, administrative receiver or similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of Buyer; (iii) Buyer ceasing to carry on business or being unable to pay its debts; (iv) Buyer or its directors or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of , an administrator; (v) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of Buyer; or (vi) the happening in relation to Buyer of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets. Seller shall be entitled to recover from Buyer or Buyer's representative all costs and damages incurred by Seller as a result of such cancellation, including a reasonable allowance for overheads and profit (including but not limited to loss of prospective profits and overheads).
MISCELLANEOUS
No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
If any clause, sub-clause or other provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.
Buyer shall not be entitled to assign its rights or obligations hereunder without the prior written consent of Seller.
Seller enters into the Contract as principal. Buyer agrees to look only to Seller for due performance of the Contract.
This Agreement and any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed as follows:
| If Buyer is domiciled in: | Buyer is contracting with: | Notices should be addressed to: | The governing law is: | The courts having exclusive jurisdiction are: |
| The United States of America, Canada, Mexico or in a Country in Central or South America or the Caribbean | Neatframe Inc. | Neatframe Inc. 100 Park Ave, 16th Floor New York NY 10017 USA Attn: General Counsel | Delaware, USA | Delaware, USA |
| UK or Rest of World | Neatframe Limited | Neatframe Limited The Charter Building Charter Place Uxbridge UB8 1JG United Kingdom Attn: General Counsel | England | England |
All notices and claims in connection with the Contract must be in writing.
GOODS NOT FOR RESALE
Buyer agrees and represents that the purchase is strictly for internal use and not for resale unless a resale authorization has been received in writing & signed off by Seller principal officer (VP or above).
IF YOU ARE SUBSCRIBING TO NEAT-AS-A-SERVICE THEN THE FOLLOWING TERMS AND CONDITIONS APPLY:
These Terms and Conditions (together with the Order Form, this “Agreement”) are entered into as of the Effective Date set forth on the Order Form (the “Effective Date”), by and between Neatframe (“Neat”) and the Customer set forth on the Order Form (“Customer”) (collectively the “Parties” and each individually a “Party”). The “Order Form” means either: (i) the electronic order placed by the Customer at neat.no; or (ii) a purchase order provided by Customer to Neat the terms of which are incorporated into this Agreement by reference.
NOW, THEREFORE, for other good and valuable consideration, the Parties agree as follows:
DEFINITIONS. For purposes of this Agreement, the following terms shall have the following meanings:
“Appliance” “Appliances” means the video devices developed and manufactured by Neat for use with Zoom Rooms, Zoom Video Communications, including pre-installed firmware (other than third party software) and accessories contained in the original box (such as but not limited to cables, mounts, stands, etc.) for the quantities of each item of Appliance identified on the Order Form.
“Service” means the Appliance and Support.
“Subscription term” means the period of time during which Customer is required to pay a monthly fee. It starts on the first day of the month that follows the date on which Neat has started to ship Appliance to Customer (not the day on which it is received). The subscription term ends at the end of the month in which the customer has returned the Appliance in full. The Customer is considered to have returned all Appliances if all Appliances were included in a package and at the point where the shipping company has scanned this package into the shipping company’s system for return at Customer’s location.
“Support” means the general Customer service support and the technical support for the Appliance described in these Terms and Conditions.
NEAT-AS-A-SERVICE. Neat will provide Customer with the Service. Neat hereby grants Customer a non-exclusive, non-transferable, and non-sublicensable license and right to use the Appliance subject to the terms and conditions of this Agreement and any Additional Terms (defined below). The Service may be subject to additional terms and conditions (“Additional Terms”). Where Additional Terms apply to the Service, Neat will make them available to Customer through Customer’s use of the Service. By using the Service, Customer is confirming its agreement to the Additional Terms.
NEAT OWNS THE APPLIANCE. The Appliance and the intellectual property rights of whatever nature in the Appliance are and will remain the sole property of Neat or its licensors or service providers. Customer will have no right, title, or interest in or to the Appliance other than the limited right to use the Appliance subject to the terms and conditions of this Agreement. Customer is expressly prohibited from affixing to the Appliance any tags, decals, or plates that may indicate the Appliance is owned by Customer. Customer may not assign this Agreement or any of its rights or obligations to a third party without Neat’s prior consent. Customer acknowledges and agrees that Neat is providing a service under this Agreement and nothing herein will be deemed or construed as a lease or other grant or transfer of any real or personal property. Customer has not been granted any real property interest in any hardware and Customer has no rights under any real property or landlord/tenant laws, regulations, or ordinances pursuant to this Agreement. Customer shall notify Neat immediately if Customer becomes aware of any unauthorized use of the whole or any part of the Appliance by any person. Customer agrees to use the Appliance in a skilful and proper manner and in accordance with any operating instructions issued for them and to ensure that the Appliance are operated and used by properly skilled and trained personnel, and indemnify the Supplier against any failure to do so, as well as against any loss or damage to the Appliance while in the possession of the Customer, ordinary wear and tear excepted. The Customer agrees to abide by all applicable EU, US and United Kingdom export regulations and shall only export or re-export the Appliance after written authorization by Neat.
THIRD PARTY SOFTWARE. Customer acknowledges and agrees that the Appliance will come pre-installed with third party software, specifically Zoom Rooms software developed by Zoom Video Communications, Inc. (“Zoom”). Neat does not make any representation or warranty or indemnity with respect to such pre-installed third-party software. As between the parties, Customer is responsible for obtaining all necessary licenses to access and use such pre-installed third-party software.
PAYMENTS; TAXES. For the payment of fees during the Subscription Term, Customer can opt for a monthly or annual payment. Customer shall pay to Neat the monthly subscription fee (“Monthly Service Fees”) or the annual subscription fee (“Annual Service Fees”) set forth on the Order Form for the Service for the quantities of each item of Appliance identified on the Order Form. All prices quoted are exclusive of any applicable VAT and other applicable taxes. The Monthly Service Fees will be invoiced at the beginning of each month and is payable in full within 14 days from the date of the invoice. The Annual Service Fees are payable within 30 days from the order being placed. Any undisputed amounts remaining unpaid following the payment due date, and all payments disputed in good faith that are paid following the resolution of such dispute, will bear interest accruing from the original payment due date through the date that such amounts are paid at 1.5% per month. Such interest shall accrue daily from the due date until actual payment of the overdue amount. If Customer fails to pay the Monthly Service Fee when due, Neat shall have the right to suspend Customer’s access to the Appliance until the outstanding amounts are paid in full. Failure to settle subscription fees when due shall always be considered a breach of a material obligation. All payments are non-refundable except as expressly provided in this Agreement or as otherwise agreed to by Neat in writing in its sole discretion. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL TAXES, FEES, DUTIES AND GOVERNMENTAL ASSESSMENTS (EXCEPT FOR TAXES BASED ON NEAT’S NET INCOME) THAT ARE IMPOSED OR BECOME DUE IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT.
SHIPMENT; INSTALLATION; RISK OR LOSS. Unless otherwise agreed in writing, Neat will deliver the Appliance to Customer’s designated location. Once the Appliance is delivered to Customer’s designated location, Customer bears all risk of loss or damage with respect to the Appliance and is solely responsible for insuring the Appliance against loss or damage. Customer shall not modify or make any alterations or modifications to the Appliance and shall not decompile, disassemble or reverse engineer the Appliance. Customer shall not attempt to obtain the source code from any software component of the Application.
SUPPORT. Neat will assist the client with questions relating to subscription, invoicing and logistics. Neat will be responsible for the cost of shipping of Appliances to and from the location of the customer as specified in the Order Form. The Service includes payment of any import taxes (if applicable). Zoom will provide remote technical support for the Service and the contact details of the support team can be found on zoom.us.Should an Appliance become defective, and Customer is not responsible for having caused the defect in breach of Section 3 - Neat owns the Appliance), Customer should contact the support team to initiate the support process. Neat will then replace the Appliance with a new or fully refurbished replacement unit depending on availability and will send this to Customer. Upon receipt of the replacement Appliance Customer must return the defective Appliance in accordance with the procedure for returns set forth in this agreement. If Customer fails to return the defective Appliance after receipt of the replacement Appliance, Customer will be responsible for the Monthly Service Fee for both the defective Appliance and the replacement Appliance up to the date on which Neat receives the replacement Appliances.
TERM; TERMINATION.
Term. This Agreement will remain in effect for twenty-four (24) months (“Initial Term”) from the Effective Date. Thereafter, it will automatically renew for successive twelve (12) month terms, unless either party refuses such renewal by written notice thirty (30) or more days before the end of the then-current term. If during the term of this initial Agreement Customer orders additional Appliances, and if, when submitting the order to Neat for additional Appliances, the Effective Date of the initial Agreement is less than 12 months ago, the Agreement relating to the additional Appliances shall have the same term as the initial Agreement. If, when submitting the order to Neat for additional appliances, the Effective Date of the initial Agreement is more than 12 months ago, the Term of the initial Agreement shall be extended and the initial Agreement will continue to apply together with the Agreement in relation to the additional Appliance for 12 months starting from the date of the order of the additional Appliances.
Mutual Termination Rights. Either party shall be entitled to terminate this agreement, immediately upon written notice to the other party, in the event of (i) a material breach of this agreement by the other party and a failure to cure such breach within a period of thirty (30) days following receipt of written notice specifying that a breach has occurred and providing reasonable detail regarding the circumstances surrounding such breach; (ii) the institution of any proceedings by or against the other party seeking relief, reorganization or arrangement under any laws relating to insolvency or bankruptcy, which proceedings are not dismissed within sixty (60) days; (iii) the assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee, of any of the other party’s property or assets; or (iv) the liquidation, dissolution or winding up of the other party’s business.
Return of Appliance. Upon expiration or termination of this Agreement for any reason, Neat will initiate, and Customer will comply with, the following return process: (i) Neat will ship out return packaging material, instructions and shipping label; and (ii) Customer will pack up Appliance, including all parts and accessories that were included with Appliance upon original delivery, and return the Appliance within ten (10) days of receipt of return packaging. If Customer does not return the Appliance within ten (10) days of receipt of return packaging, Neat will continue to invoice, and Customer agrees to pay to Neat, the Monthly Service Fee until the Appliance is returned. If the Appliance is lost or damaged (excluding normal wear and tear), Neat will invoice, and Customer agrees to pay to Neat, the depreciated value of the lost or damaged Appliance.
Neat Swap. Up to one month before the end of the initial term and any subsequent term, Customer may request in writing that some or all existing Appliances in use by Customer shall be replaced with a newer model of the Appliance, if available at the time, or a more expensive Appliance, and Neat will at its discretion replace existing Appliances with the requested new Appliances, if available at that time. Customer may make such request either: (i) online at neat.no; or (ii) by purchase order delivered by Customer to Neat. The new Appliances will be subject to a new Agreement between Customer and Neat and the terms and conditions applicable at that time. This new Agreement will run for a minimum of 24 months and will cover all Appliances in use by Customer, whether upgraded or not. If Customer chooses to upgrade Neat will ship the new Appliances to Customer and Customer will return the replaced Appliances to Neat to arrive within 1 month of the new order being placed. If customer fails to return the replaced Appliances to Neat on time, Customer will be responsible for Monthly Service Fees for both the upgraded and the replaced Appliance up to the date on which Neat has received the replaced Appliances.
WARRANTIES. Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement and each Order Form is entered into by an employee or agent of such Party with all necessary authority to bind such Party to the terms and conditions of this Agreement. In addition, Customer represents and warrants and covenants to Neat that Customer’s use of the Service will not violate any applicable laws, including copyright or trademark laws, export control laws, or regulations in its jurisdiction.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND AND NEAT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. NEAT EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY RELEASES NEAT FROM, ANY RESPONSIBILITY OR LIABILITY FOR ANY ACTUAL OR ALLEGED INJURIES OF ANY KIND (INCLUDING DEATH) OR PROPERTY DAMAGES OF THE SERVICE BY ANY PERSON.
LIMITATION OF LIABILITY.
Consequential and Related Damages. IN NO EVENT WILL NEAT BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Limitation of Damages. NEAT’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE MONTHLY SERVICE FEES ACTUALLY PAID TO NEAT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
INDEMNIFICATION. Customer shall indemnify, defend and hold harmless Neat and its parent companies, subsidiaries, affiliates, shareholders, member, manager, officers, directors, employees, agents, and representatives from and against any and all third party claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs, which shall be reimbursed as incurred) of any kind or nature, arising from or relating to: (i) any actual or alleged injuries of any kind (including death) or property damage relating to use or misuse of the Service by any person and (ii) Customer’s violation or alleged violation of any laws or regulations relating to use or misuse of the Service by any person (each a “Claim” for purposes of this Section); provided that Neat (i) promptly gives Customer written notice of such Claim; (ii) gives Customer sole control of the defense and settlement of such Claim (provided that Customer may not settle any Claim against Neat unless the settlement unconditionally and without prejudice releases Neat of all liability); and (iii) provides to Customer all reasonable assistance, at Customer’s expense.
INSURANCE. For as long as Customer uses the Service, Customer shall maintain:(i) comprehensive general liability, including broad form vendors’ liability, with limits of no less than five hundred thousand US dollars ($500,000) combined single limit for personal injury, including bodily injury, death and property damage which may arise from or in connection with the Service or use of the Service, including any negligent act or omission of Customer, its officers, directors, agents, subcontractors or employees; and (ii) statutory workers’ compensation coverage meeting all state and local requirements. Each party shall provide certificates of insurance evidencing such coverage to the other within ten (10) days after the Effective Date. With respect to such insurance: (a) the insurance shall name Neat, and Customer, its affiliates, employees, agents, representatives, and assigns, as additional insureds under the policies, which certificates shall specifically reference this Agreement; (b) the policies shall act as primary coverage in the event of a dispute, claim or lawsuit arising out of the use of the Service; and (c) all policies must be written with per occurrence coverage.
CONFIDENTIALITY. Each Party (a “Receiving Party”) understands that the other Party (the “Disclosing Party”) may share certain information of a confidential nature pursuant to this Agreement. “Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, that should reasonably have been understood by the Receiving Party due to legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Disclosing Party, including, without limitation, non-public information relating to the Service (including how the Service work and all documentation and specifications provided by Neat regarding the Service), any other non-public product, service, technical, marketing, business, financial, or other information, and the specific business terms and pricing set forth on the Order Form. The Receiving Party agrees, for itself and any affiliate, agents, and employees, that it will not publish, disclose, or otherwise divulge or use (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party in each instance. Each Party will use at least the same level of care to maintain the confidentiality of the other Party’s Confidential Information as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. The foregoing notwithstanding, Confidential Information does not include information or material that Receiving Party can document (i) is publicly available through no action or fault of Receiving Party; (ii) was already in Receiving Party’s possession or known to Receiving Party prior to being disclosed or provided to Receiving Party by Disclosing Party, provided that the source of such information or material was not obligated in any way to maintain its confidentiality; (iii) was or is obtained by Receiving Party from a third party, provided that such third party was not obligated in any way to maintain its confidentiality; or (iv) is independently developed by Receiving Party without reference to any Confidential Information.
MISCELLANEOUS.
Governing Law. This Agreement and any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed as follows:
| If Customer is domiciled in: | Customer is contracting with: | Notices should be addressed to: | The governing law is: | The courts having exclusive jurisdiction are: |
| The United States of America, Canada, Mexico or in a Country in Central or South America or the Caribbean | Neatframe Inc. | Neatframe Inc. 100 Park Ave, 16th Floor New York NY 10017 USA Attn: General Counsel | Delaware, USA | Delaware, USA |
| UK or Rest of World | Neatframe Limited | Neatframe Limited The Charter Building Charter Place Uxbridge UB8 1JG United Kingdom Attn: General Counsel | England | England |
Survival. Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect.
Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other Party, to an affiliate of such Party or to a third party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or ownership interests. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Severability. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed will be deleted and the remaining provisions of this Agreement will continue in full force and effect.
Notices. All notices provided hereunder will be in writing, delivered personally, by e-mail or sent by overnight courier, registered or certified mail to the addresses specified on the Order Form or such other address as may be specified in writing by notice given in accordance with this Section. All such notices will be deemed to have been given: (i) upon receipt when delivered personally; (ii) upon receipt when delivered by e-mail; or (iii) in the case of overnight courier, one weekday after delivery to the overnight courier.
Waiver. Performance of any obligations required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver will be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Force Majeure. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or services as a result of causes beyond its reasonable control, and without its fault or negligence, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures. Nothing in the foregoing will be deemed to relieve Customer of Customer’s obligation to pay any and all undisputed amounts owed to Neat under this Agreement.
Independent Contractors. Neat and Customer are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship between Neat and Customer.
Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed an original, and all of which together will constitute one and the same agreement. Facsimile and electronic (e.g. PDF) signatures shall be as effective as original signatures. This Agreement shall be effective only after it has been duly executed by both Parties.
Amendments; Entire Agreement. Neat may amend these Terms and Conditions from time to time by posting an amended version at the Website and sending Customer written notice thereof. Such amendment will become effective 30 days after such notice (unless Customer first terminates this Agreement) Customer’s continued use of the Service after such 30-day notice period will confirm Customer’s consent to such amendment. No other modification, change, or amendment of this Agreement shall be binding upon the parties, except by mutual express consent in writing of subsequent date duly signed by the authorized representatives of each of the Parties. The Parties agree that any term or condition stated in Customer’s purchase order or other order documentation (excluding the Order Form) becomes void and superseded by the amended terms and conditions after the 30-day notice period. This Agreement, including the Order Form, constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supersedes any and all prior and contemporaneous understandings and agreements, whether oral or written, between the Parties with respect to the subject matter of this Agreement.
