Terms
Software as a service Agreement
Terms
Software as a service Agreement
Terms
Software as a service Agreement
Definitions
This Software as a Service Agreement (this “Agreement”) is a binding contract between you (“Customer”, “you”, or “your”) and Techneto Corp., a Nevada corporation d/b/a Neto, having an address at 1749 N. Lemon, Mesa, AZ 85205 (“Provider”). This Agreement governs your access to and use of the Services (as defined below). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (the "Effective Date"). BY CLICKING ON THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
WHEREAS, Provider provides access to the Services to its customers; and
WHEREAS, Customer desires to access the Services, and Provider desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by
Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by
Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or
medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(d) “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by
provider to Customer either electronically or in hard copy form.
(e) “Provider IP” means the Services, the Documentation, and any and all intellectual property provided, licensed, or
sublicensed to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
(f) “Services” means the software-as-a-service offering described in the section titled Description of Services and Platform Fees above.
(g) “Third-Party Products” means any third-party products described in Appendix I provided with or incorporated into the Services.
Access and Use
Provision of Access.
Subject to and conditioned on Customer’s payment of Fees and compliance with all terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use and for the purposes explicitly contemplated in the Documentation. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services through Provider’s provided dashboard or by any other means utilized from time to time.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that: (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may: (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
Customer Responsibilities
(a) General.
Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. Customer shall be solely responsible for collecting, inputting, and updating all Customer Data and for ensuring that such Customer Data does not infringe upon the intellectual property rights of any third party or contain anything obscene, defamatory, harassing, offensive, or malicious.
(b) Third-Party Products.
Provider may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions referred to in Appendix I. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. To the extent the Services are not functional without the use of any Third-Party Products incorporated in the future and Customer does not agree to abide by the applicable terms thereof, then Customer shall notify Provider regarding the same and cease use of the Services; provided, however, that Customer shall remain responsible for payment of fifty percent (50%) of the Fees that would have been payable by Customer for the remainder of the then-current Term within thirty (30) days following cessation of use of the Services and this Agreement shall be terminated effective upon such payment.
(c) Appointment of Provider as Attorney-In-Fact.
Customer hereby irrevocably appoints Provider as the true and lawful attorney-in-fact and agent of Customer during the Term for the sole purpose of authorizing and empowering Provider to purchase and otherwise acquire phone numbers on behalf of Customer and utilizing Customer’s employer identification number (EIN) to the extent required in connection therewith. Additionally, Customer hereby irrevocably authorizes Provider, during the Term, to send messages using such acquired phone numbers for the purposes of communicating on Customer’s behalf to Customer’s leads and customer base, as contemplated under the Description of Services and Platform Fees. The foregoing power of attorney shall permit Provide to make, execute, acknowledge and deliver all such contracts, orders, requests, consents, and other writings as may be reasonably required in connection with Provider’s acquisition of phone numbers on Customer’s behalf and in connection with delivering messages through using such phone numbers. The foregoing power of attorney shall be automatically revoked upon the termination of this Agreement for any reason.
(d) Matters Pertaining to Leads.
Customer shall provide lead lists and other commercially reasonable information and assistance to Provider to enable Provider to provide the Services. Any lead lists provided by Customer to Provider must be qualified as being able to receive communications from Customer and/or Provider in compliance with the Telephone Consumer Protection Act (“TCPA”). Provider shall assume no liability for communications with leads provided by Customer that are not TCPA compliant. Customer acknowledges that Provider’s ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
Service Level Objective; Support.
(a) Service Level Objective.
Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit A.
(b) Support.
Additional support services may be available at an additional cost to Customer and Provider and Customer shall execute a separate agreement in connection with any specifically contemplated or customized support services.
Fees and Payment.
(a) Fees.
Customer shall pay Provider the fees (“Fees”) as set forth in the section titled Description of Services and Platform Fees above without offset or deduction. The Fees or additional or different Fees may also be provided for in one or more order forms between the Parties from time to time and any such amounts shall constitute “Fees” for purposes of this Agreement. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Description of Services and Platform Fees above or the applicable order form(s). If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes.
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
(c) Auditing Rights and Required Records.
Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.
6. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure (as established by reasonable written evidence); (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without the use of the other Party’s Confidential Information (as established by reasonable written evidence). The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
8. Warranty Disclaimer. THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Indemnification
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of such Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim.
(ii) If a Third Party-Claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to: (A) modify or replace the Services, or component or part thereof, to make it non-infringing; or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
(iv) Provider shall utilize commercially reasonable efforts to train all artificial intelligence utilized in
connection with the Services but Provider shall not be responsible for any “hallucinations” or any similar false information provided by such artificial intelligence programs; provided, however, that Provider will endeavor to promptly correct any such identified issues to prevent future occurrences.
(b) Customer Indemnification.
Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, as well as for any Third-Party Claims relating to any actions taken by Provider on behalf of Customer as permitted under Section 3(c) above, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 9 EXCEED $10,000.
10. Limitations of Liability.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000, WHICHEVER IS LESS.
Term and Termination.
(a) Term. The term of this Agreement begins on the Effective Date and continues in effect either: (i) on a month to month basis; or (ii) on an annual basis, in either case until either Party provides not less than fourteen (14) days’ written notice of its intent to terminate this Agreement prior to the expiration of the next month or year, as applicable (the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is not logically capable of cure; or (B) being logically capable of cure, remains uncured for a period of five (5) days after the non-breaching Party provides the breaching Party with written notice of such breach (which notice shall set forth, in reasonable detail, the nature of such breach); or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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 domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
Customer’s provision of written notice to terminate this Agreement shall be effected through Customer’s online portal and written notice sent by other means (e.g., mail, email, fax, etc.) shall not be deemed effective notice for purposes of terminating this Agreement.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund and notwithstanding the earlier termination of this Agreement, all Fees that would have been owed through the expiration of the then-current Term shall remain due and payable and all such amounts shall be accelerated and due upon termination of this Agreement; provided, however, that any Fees not yet charged or invoiced will not accelerate and will not become due if this Agreement is terminated by Customer based on an uncured breach of Provider’s obligations hereunder under Section 11(b)(ii) above.
(d) Refunds. Notwithstanding anything to the contrary in this Agreement, in the event Customer terminates this Agreement in accordance with Section 11(b)(ii) above, Customer may request a refund in an amount equal to one (1) month’s Fees (calculated on the basis of the immediately preceding calendar month) (the “Refund”) by including in the written notice of termination that Customer is: (i) terminating the Agreement in accordance with Section 11(b)(ii) and including in reasonable detail the nature of the uncured or incurable default on the part of Provider; and (ii) requesting a refund in such notice of termination. If Customer fails to request a Refund in its notice of termination then it waives the right to later claim the Refund or any other amounts or sums relating to Customer’s prior payment for services. For the purpose of clarity, the Refund, if properly claimed, is separate and apart from any other amounts due from Customer under the Agreement and may not be offset against any such amounts outstanding at the time of termination unless Provider agrees in writing to permit such offset. If Customer has any unpaid Fees at the time of termination, then unless Provider, in its sole and absolute discretion, permits the Refund to be offset against such outstanding Fees, then Customer will not be eligible to receive a Refund and will continue to owe all such past due Fees in their entirety.
(e) Survival. This Section 11 and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”), other than a notice of termination by Customer under Section 11 hereof (which must be effected through Customer’s online portal), to be delivered to Provider hereunder must be in writing and addressed to Provider at its address set forth on the first page of this Agreement (or to such other address that may be designated by Provider from time to time in accordance with this Section). All Notices to Provider must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission and a copy to immediately follow by U.S. mail), or certified or registered mail (in each case, return receipt requested, postage pre-paid). All Notices to be made by Provider to Customer may be made by email or message delivered through Customer’s online portal, or otherwise in the manner set forth below and by executing this Agreement and using the Services you consent to receiving electronic communications. These electronic communications from Provider to Customer may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. Customer agrees that any notices, agreements, disclosures, or other communications that Provider sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. In addition to the foregoing,
(c) Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, public health emergency, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. Customer acknowledges and agrees that Provider has the right, in its sole discretion, to amend or modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through either a direct email notification from Provider, a notification posted to Customer’s online portal, or a combination of the foregoing. Customer is responsible for reviewing and becoming familiar with any such amendments and modifications. Customer’s continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide at least 30 days' advance notice of changes to any service level that Provider reasonably anticipates may result in a material reduction in quality or services. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving (provided, however, that an affirmative email response or confirmation through Customer’s online portal shall also suffice). Except as otherwise set forth in this Agreement: (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in Maricopa County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
EXHIBIT A
THIRD PARTY PRODUCTS
Neto reserves the right to incorporate third-party products and services into the SaaS Services. These third-party products and services currently include, without limitation, the following:
(i) Twilio (Twilio Terms of Service | Twilio)
(ii) Telnyx (Telnyx - Terms And Conditions of Service)
(iii) Vonage (Terms of Use | Vonage)
(iv) OpenAI (Terms of use (openai.com))
Customer is solely responsible for reviewing all of the above terms of use (as well as any amendments or updates thereto from time to time) and complying with the same to the extent applicable to Customer, and Customer shall also be required to comply with the terms of use of any other Third-Party Products incorporated into the Services in the future.
Definitions
This Software as a Service Agreement (this “Agreement”) is a binding contract between you (“Customer”, “you”, or “your”) and Techneto Corp., a Nevada corporation d/b/a Neto, having an address at 1749 N. Lemon, Mesa, AZ 85205 (“Provider”). This Agreement governs your access to and use of the Services (as defined below). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (the "Effective Date"). BY CLICKING ON THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
WHEREAS, Provider provides access to the Services to its customers; and
WHEREAS, Customer desires to access the Services, and Provider desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by
Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by
Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or
medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(d) “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by
provider to Customer either electronically or in hard copy form.
(e) “Provider IP” means the Services, the Documentation, and any and all intellectual property provided, licensed, or
sublicensed to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
(f) “Services” means the software-as-a-service offering described in the section titled Description of Services and Platform Fees above.
(g) “Third-Party Products” means any third-party products described in Appendix I provided with or incorporated into the Services.
Access and Use
Provision of Access.
Subject to and conditioned on Customer’s payment of Fees and compliance with all terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use and for the purposes explicitly contemplated in the Documentation. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services through Provider’s provided dashboard or by any other means utilized from time to time.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that: (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may: (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
Customer Responsibilities
(a) General.
Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. Customer shall be solely responsible for collecting, inputting, and updating all Customer Data and for ensuring that such Customer Data does not infringe upon the intellectual property rights of any third party or contain anything obscene, defamatory, harassing, offensive, or malicious.
(b) Third-Party Products.
Provider may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions referred to in Appendix I. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. To the extent the Services are not functional without the use of any Third-Party Products incorporated in the future and Customer does not agree to abide by the applicable terms thereof, then Customer shall notify Provider regarding the same and cease use of the Services; provided, however, that Customer shall remain responsible for payment of fifty percent (50%) of the Fees that would have been payable by Customer for the remainder of the then-current Term within thirty (30) days following cessation of use of the Services and this Agreement shall be terminated effective upon such payment.
(c) Appointment of Provider as Attorney-In-Fact.
Customer hereby irrevocably appoints Provider as the true and lawful attorney-in-fact and agent of Customer during the Term for the sole purpose of authorizing and empowering Provider to purchase and otherwise acquire phone numbers on behalf of Customer and utilizing Customer’s employer identification number (EIN) to the extent required in connection therewith. Additionally, Customer hereby irrevocably authorizes Provider, during the Term, to send messages using such acquired phone numbers for the purposes of communicating on Customer’s behalf to Customer’s leads and customer base, as contemplated under the Description of Services and Platform Fees. The foregoing power of attorney shall permit Provide to make, execute, acknowledge and deliver all such contracts, orders, requests, consents, and other writings as may be reasonably required in connection with Provider’s acquisition of phone numbers on Customer’s behalf and in connection with delivering messages through using such phone numbers. The foregoing power of attorney shall be automatically revoked upon the termination of this Agreement for any reason.
(d) Matters Pertaining to Leads.
Customer shall provide lead lists and other commercially reasonable information and assistance to Provider to enable Provider to provide the Services. Any lead lists provided by Customer to Provider must be qualified as being able to receive communications from Customer and/or Provider in compliance with the Telephone Consumer Protection Act (“TCPA”). Provider shall assume no liability for communications with leads provided by Customer that are not TCPA compliant. Customer acknowledges that Provider’s ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
Service Level Objective; Support.
(a) Service Level Objective.
Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit A.
(b) Support.
Additional support services may be available at an additional cost to Customer and Provider and Customer shall execute a separate agreement in connection with any specifically contemplated or customized support services.
Fees and Payment.
(a) Fees.
Customer shall pay Provider the fees (“Fees”) as set forth in the section titled Description of Services and Platform Fees above without offset or deduction. The Fees or additional or different Fees may also be provided for in one or more order forms between the Parties from time to time and any such amounts shall constitute “Fees” for purposes of this Agreement. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Description of Services and Platform Fees above or the applicable order form(s). If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes.
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
(c) Auditing Rights and Required Records.
Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.
6. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure (as established by reasonable written evidence); (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without the use of the other Party’s Confidential Information (as established by reasonable written evidence). The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
8. Warranty Disclaimer. THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Indemnification
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of such Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim.
(ii) If a Third Party-Claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to: (A) modify or replace the Services, or component or part thereof, to make it non-infringing; or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
(iv) Provider shall utilize commercially reasonable efforts to train all artificial intelligence utilized in
connection with the Services but Provider shall not be responsible for any “hallucinations” or any similar false information provided by such artificial intelligence programs; provided, however, that Provider will endeavor to promptly correct any such identified issues to prevent future occurrences.
(b) Customer Indemnification.
Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, as well as for any Third-Party Claims relating to any actions taken by Provider on behalf of Customer as permitted under Section 3(c) above, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 9 EXCEED $10,000.
10. Limitations of Liability.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000, WHICHEVER IS LESS.
Term and Termination.
(a) Term. The term of this Agreement begins on the Effective Date and continues in effect either: (i) on a month to month basis; or (ii) on an annual basis, in either case until either Party provides not less than fourteen (14) days’ written notice of its intent to terminate this Agreement prior to the expiration of the next month or year, as applicable (the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is not logically capable of cure; or (B) being logically capable of cure, remains uncured for a period of five (5) days after the non-breaching Party provides the breaching Party with written notice of such breach (which notice shall set forth, in reasonable detail, the nature of such breach); or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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 domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
Customer’s provision of written notice to terminate this Agreement shall be effected through Customer’s online portal and written notice sent by other means (e.g., mail, email, fax, etc.) shall not be deemed effective notice for purposes of terminating this Agreement.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund and notwithstanding the earlier termination of this Agreement, all Fees that would have been owed through the expiration of the then-current Term shall remain due and payable and all such amounts shall be accelerated and due upon termination of this Agreement; provided, however, that any Fees not yet charged or invoiced will not accelerate and will not become due if this Agreement is terminated by Customer based on an uncured breach of Provider’s obligations hereunder under Section 11(b)(ii) above.
(d) Refunds. Notwithstanding anything to the contrary in this Agreement, in the event Customer terminates this Agreement in accordance with Section 11(b)(ii) above, Customer may request a refund in an amount equal to one (1) month’s Fees (calculated on the basis of the immediately preceding calendar month) (the “Refund”) by including in the written notice of termination that Customer is: (i) terminating the Agreement in accordance with Section 11(b)(ii) and including in reasonable detail the nature of the uncured or incurable default on the part of Provider; and (ii) requesting a refund in such notice of termination. If Customer fails to request a Refund in its notice of termination then it waives the right to later claim the Refund or any other amounts or sums relating to Customer’s prior payment for services. For the purpose of clarity, the Refund, if properly claimed, is separate and apart from any other amounts due from Customer under the Agreement and may not be offset against any such amounts outstanding at the time of termination unless Provider agrees in writing to permit such offset. If Customer has any unpaid Fees at the time of termination, then unless Provider, in its sole and absolute discretion, permits the Refund to be offset against such outstanding Fees, then Customer will not be eligible to receive a Refund and will continue to owe all such past due Fees in their entirety.
(e) Survival. This Section 11 and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”), other than a notice of termination by Customer under Section 11 hereof (which must be effected through Customer’s online portal), to be delivered to Provider hereunder must be in writing and addressed to Provider at its address set forth on the first page of this Agreement (or to such other address that may be designated by Provider from time to time in accordance with this Section). All Notices to Provider must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission and a copy to immediately follow by U.S. mail), or certified or registered mail (in each case, return receipt requested, postage pre-paid). All Notices to be made by Provider to Customer may be made by email or message delivered through Customer’s online portal, or otherwise in the manner set forth below and by executing this Agreement and using the Services you consent to receiving electronic communications. These electronic communications from Provider to Customer may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. Customer agrees that any notices, agreements, disclosures, or other communications that Provider sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. In addition to the foregoing,
(c) Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, public health emergency, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. Customer acknowledges and agrees that Provider has the right, in its sole discretion, to amend or modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through either a direct email notification from Provider, a notification posted to Customer’s online portal, or a combination of the foregoing. Customer is responsible for reviewing and becoming familiar with any such amendments and modifications. Customer’s continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide at least 30 days' advance notice of changes to any service level that Provider reasonably anticipates may result in a material reduction in quality or services. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving (provided, however, that an affirmative email response or confirmation through Customer’s online portal shall also suffice). Except as otherwise set forth in this Agreement: (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in Maricopa County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
EXHIBIT A
THIRD PARTY PRODUCTS
Neto reserves the right to incorporate third-party products and services into the SaaS Services. These third-party products and services currently include, without limitation, the following:
(i) Twilio (Twilio Terms of Service | Twilio)
(ii) Telnyx (Telnyx - Terms And Conditions of Service)
(iii) Vonage (Terms of Use | Vonage)
(iv) OpenAI (Terms of use (openai.com))
Customer is solely responsible for reviewing all of the above terms of use (as well as any amendments or updates thereto from time to time) and complying with the same to the extent applicable to Customer, and Customer shall also be required to comply with the terms of use of any other Third-Party Products incorporated into the Services in the future.
Start today
Change the trajectory of your entire business with a single click
Start today
Change the trajectory of your entire business with a single click
Start today