Last updated July 17, 2020
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. 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.