Terms of Service
Please read these terms of service and
our Privacy Notice (together, these “Terms”) carefully as they
form a contract between the Customer and Primemove Technologies Inc. and its
Group Companies (collectively “Primemove Technologies” or “Neoxcel” or "Provider")
and govern use of and access to the Service(s) and Websites by Customer,
Customer’s Affiliates, Users and End-Users. In the event of a conflict between
these terms of service and our Privacy Notice, these terms of service shall
By accessing or using the Service(s) or
Websites, or authorizing or permitting any User or End-User to access or use
the Service(s) or Websites, Customer agree to be bound by these Terms. If the
Customer is entering into these Terms on behalf of a company, organization or
another legal entity (an “Entity”), Customer agrees to these Terms
for that Entity and representing to Provider that Customer has the authority to
bind such Entity and its Affiliates to these Terms, in which case the
terms, “Customer” or related capitalized terms used herein
shall refer to such Entity and its Affiliates. If Customer does not have such
authority, or if Customer does not agree with these Terms, Customer must not
accept these Terms and may not access or use the Service(s) or Websites.
Customer, as an individual, must be 18
years or older to access or use the Websites and the Service(s).
Customer and Provider are individually
referred to as “Party” and collectively as “Parties”.
The Parties agree as follows:
1. Responsibilities of Provider
Provider will (a) make the Service(s)
available to Customer pursuant to the applicable SOF (or online registration
through the Website(s)) and Documentation, (b) use commercially reasonable
efforts to make the Service(s) available in accordance with its service levels,
and (c) provide the Service(s) in accordance with laws and government
regulations applicable to locations where Provider hosts the Service(s).
Subject to Customer’s compliance with the Terms and solely during the
Subscription Term (and any renewals thereof in accordance with Section 8.1 of
the Terms), Provider grants to Customer a limited, non-exclusive,
non-transferrable, and revocable right to access and use the Service(s) for its
internal business purposes, including the right to download, install and use
the Mobile Applications.
2. Responsibilities of Customer
2.1 Customer Account: Customer shall be solely responsible for the confidentiality
of Service Data and login information. Notwithstanding Provider’s obligations
under Section 9 of the Terms, Customer shall be responsible for use of the
Service(s) through Customer’s Account by any third party. Customer shall use
best efforts to prevent unauthorized access to, or use of, the Service(s), and
notify Provider promptly of any such unauthorized access or use of which
Customer becomes aware. Provider and its Affiliates shall not be liable for any
damage or loss that may result from Customer’s failure to protect Customer’s
2.2 Use of the Service(s): Customer agrees not to (i) use the Service(s) To Process data
on behalf of any third party other than Customer’s Users and End-Users; (ii)
use the Service(s) to send unsolicited communications, junk mail, spam, pyramid
schemes or other forms of duplicative or unsolicited messages; (iii) use the
Service(s) in any unlawful manner, including but not limited to violation of
any person’s privacy rights; (iv) use the Service(s) to store or transmit any
content that infringes upon any person’s intellectual property rights; (v) use
the Service(s) in any manner that interferes with or disrupts the integrity or
performance of the Service(s) and its components; (vi) use the Service(s) to
knowingly post, transmit, upload, link to, send or store any content that is
unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (vii)
use the Service(s) to post, transmit, upload, link to, send or store any
viruses, malware, Trojan horses, time bombs, or any other similar harmful
software (“Malicious Software”); (viii) use the Service(s) for the purposes of
cookie tracking, ad exchanges, ad networks, data brokerages, or sending
electronic communications (including e-mail) in violation of applicable law
(ix) use the Service(s) to store or transmit any “protected health information”
as that term is defined in 45 C.F.R. 160.103 unless expressly agreed to
otherwise in a signed writing by Provider; or (x) use the Service(s) to store
or transmit any “Payment Card Industry” data as that term is defined by Payment
Card Industry Data Security Standards unless expressly agreed to otherwise in a
signed writing by Provider.
2.3 General Restrictions: Customer shall not (i) license, sublicense, sell, resell,
rent, lease, transfer, assign, distribute, time share or otherwise commercially
exploit or make the Service(s) available to any third party, other than Users
and End-Users in furtherance of its internal business purposes as expressly
permitted by the Terms; (ii) modify, adapt, or hack the Service(s) or otherwise
attempt to gain or gain unauthorized access to the Service(s) or related
systems or networks; (iii) falsely imply any sponsorship or association with
Provider; (iv) attempt to decipher, decompile, reverse engineer, disassemble,
reproduce, or copy or otherwise access or discover the source code or
underlying program of any Software making up the Service(s); (v) establish a
link to the Website(s) in such a way as to suggest any form of association,
approval or endorsement on Provider’s part where none exists; or (vi) try to
use, or use, the Service(s) in violation of the Terms. Without limiting the
foregoing, Customer is solely responsible for ensuring that Customer’s use of
the Service(s) is compliant with all applicable laws and regulations.
2.4 Use of API: Customer shall use Provider’s APIs according to Provider’s API
2.5 Security Responsibilities: Customer shall be responsible for maintaining the security of
access to Customer’s Account (“Security Access”). Any loss of data
or attempted or actual access or use of the Service(s) resulting from a breach
of Security Access shall be the sole responsibility of Customer.
3.Access to Service(s)
3.1. Agents: Access
and use of the Service(s) is restricted to the specified number of individual
agents/Users (i) permitted under the applicable SOF or (ii) registered for use
via the online registration through the Website(s).
3.2 Downtime: Customer may not be able to access or use the Service(s) (a)
during planned downtime for upgrades and maintenance to the Service(s) (of
which Provider will use commercially reasonable efforts to notify Customer in
advance through the Service(s)), or (b) during any unavailability caused by
circumstances beyond Provider’s reasonable control, such as, but not limited
to, acts of God, acts of government, acts of terror or civil unrest, technical
failures beyond Provider’s reasonable control (including, without limitation,
inability to access the internet), or acts undertaken by third parties,
including, without limitation, distributed denial of service attacks (“Force
Majeure Event”). Customer acknowledges that in the event of Force Majeure
Event, Provider shall be relieved from its obligations (or part thereof) as
long as the Force Majeure Event hinders the performance of said obligations (or
part thereof). Provider will make reasonable efforts to mitigate the effects of
the Force Majeure Event.
4. Changes to the Service(s)
Provider may update the Service(s) from
time to time and Customer may receive notifications of such upgrades,
enhancements, or updates (“Updates”). Any new or modified features added
to, augmenting, or otherwise modifying the Service(s) or other Updates,
modifications or enhancements to the Service(s) are also subject to the Terms
and Provider reserves the right to deploy Updates at any time. Customer agrees
that its purchase of the Service(s) is neither contingent upon the delivery of
any future functionality or features, nor dependent upon any oral or written
public comments made by Provider with respect to future functionality or
5.Ownership of IPR
5.1 Ownership of IPR: All rights, title, and interest in and to (i) Documentation; (ii)
Software and Provider’s API; and (iii) all of Provider’s patents, inventions,
copyrights, trademarks, domain names, trade secrets, know-how and any other
intellectual property and/or proprietary rights in or related to the
Service(s), including the Website(s), and any part of the Service(s)
(collectively, “Intellectual Property Rights”) or any derivatives thereto shall
belong to and remain exclusively with Provider. Provider is the owner or the
licensee of all Intellectual Property Rights in the Website(s), and the content
or material published on the Website(s).
5.2 License to Marks: Each Party owns all rights, title, and interest in its product and
service names, logos, and registered or unregistered trademarks (collectively,
“Marks”). Customer hereby grants Provider a limited license to use,
reproduce, publish, and distribute Customer’s Marks to identify Customer as a
user of the Service(s). By way of example, use includes, without limitation,
response to RFPs/bids, testimonials, websites, marketing materials, and press
6. Other Services
Certain other services such as third-party
Apps are made available to Customer through the Market Place or other forums (“Third-Party
Services”). These Third-Party Services are developed for their integration
with the Service(s) and are governed by their own terms and privacy policies.
By enabling the Third-Party Services, Customer understands and agrees that
Provider is neither responsible for Customer’s use of these Third-Party
Services, nor does it provide any warranties whatsoever for these Third-Party
Services. Provider is also not liable for any damage or loss caused or alleged
to be caused by or in connection with Customer’s enablement, access or use of
any such Third Party Services, or Customer’s reliance on the privacy practices,
data security processes or other policies of such Third Party Services.
Customer understands that Provider is not responsible for providing technical
support for the Third-Party Services and that Provider is not responsible for
the data hosting and data transfer practices followed by providers of such
7. Billing, Plan Modifications and
7.1 Charges: All charges associated with Customer’s Account (“Subscription
Charges”) are set forth in the applicable SOF or on the Website(s) and due
in full and payable in advance upon Customer’s receipt of Provider’s invoice in
accordance with Section 7.2. Payment obligations are non-cancelable, and
except as expressly permitted in the Terms, fees paid are non-refundable.
7.2 Payment methods: Customer shall pay the Subscription Charges through an accepted
payment method as specified in the applicable SOF or on the Website(s).
7.3 Renewal: Customer’s
subscription to the Service(s) will renew automatically for a Subscription Term
in accordance with the renewal terms and conditions set forth in Section 8.1.
7.4 Late Payments/Non-payment of
Subscription Charges: If the Subscription
Charges are more than thirty (30) days overdue, then, following a notification
of suspension, Provider may suspend Customer’s access to the Service(s),
including, without limitation, Customer’s Account, until such unpaid
Subscription Charges are paid in full. Customer further acknowledges that
Provider is not required to serve notices for late payments of Subscription
7.5 Upgrades: Subject to the Terms, Customer may upgrade Customer’s Account
at any time during the Subscription Term (or any renewals thereof in accordance
with Section 8.1) via an executed SOF or through the Website(s); provided,
however, that Customer acknowledges that the number of Users may not be
decreased. When Customer upgrades its Account, the new Subscription Charges
become immediately applicable and the new Subscription Charges for the
subsisting month will be charged on a pro-rated basis.
7.6 Applicable Taxes: Except as set forth in the applicable SOF or on the Website(s), the
Subscription Charges do not include any taxes, levies, duties or similar
governmental assessments, including value-added, sales, use or withholding
taxes assessable by any local, state, provincial or foreign jurisdiction
(collectively “Taxes”). Customer agrees to pay applicable direct or indirect
Taxes associated with its purchases hereunder. If Customer has an
obligation to withhold any amounts under any law or tax regime (other than U.S.
income tax law), Customer shall gross up the payments so that the Provider
receives the amount actually quoted and invoiced. If the Provider has the
legal obligation to pay or collect Taxes for which Customer is responsible for
this section, the appropriate amount shall be invoiced and paid by the
Customer, unless the Customer provides Provider with a valid tax exemption
certificate authorized by the appropriate taxing authority.
8. Term, Termination, and Suspension
8.1 Term: These Terms shall be deemed effective for Customers the date of sign
up and shall continue through the Subscription Term. Service Plans commence on
the start date specified in the relevant SOF (or for online Customers the date
of sign up) and continue for the Subscription Term specified therein. Unless a
Party gives written notice of non-renewal at least sixty (60) days prior to the
expiration of the relevant Subscription Term, Service Plans will automatically
renew for a period equal to the previous Subscription Term and such renewal
plan shall be at the then current subscription rates. Provider reserves the
right to increase the subscription fees on an annual basis at the beginning of
each Subscription Term.
8.2 Suspension: Provider may suspend Customer’s access to the Service(s), including,
without limitation, Customer’s Account, on the following grounds: (i) late
payment/non-payment of Subscription Charges; (ii) non-renewal of the Service(s)
by Customer; or (iii) breach of the Terms. Provider shall notify Customer of
any such suspension. Customer must remedy such violations prior to Provider
restoring full access to and use of the Service(s). Such suspension will in no
way affect Customer’s other obligations under the Terms.
8.3 Termination: Provider reserves the right to terminate these Terms and any
Service(s) hereunder in addition to suspension, if; (i) a breach by Customer
remains uncured for more than ten (10) days from the breach; or (ii) if
Provider believes that Customer’s breach of the Terms cannot be cured. Upon
such termination, Customer must immediately pay any then unpaid Subscription Charges
associated with the remainder of such Subscription Term. Either Party may
terminate these Terms by written notice to the other Party in the event that
(i) such other Party materially breaches the Terms and does not cure such
breach within thirty (30) days of such notice, or (ii) immediately in the event
the other Party becomes the subject of a petition in bankruptcy or any other
proceeding relating to insolvency, receivership, liquidation or assignment for
the benefit of creditors.
8.4 Free Trial Customers: Upon the expiration of Customer’s free trial, Provider may
immediately suspend Customer’s access to the Service(s), including, without
limitation, Customer’s Account. Customer must export Service Data before the
end of the free trial or Service Data will be permanently lost. Provider shall
have no obligation to maintain, store or otherwise retain Service Data beyond
the end of the free trial period.
9.1 If Customer
chooses, or Customer is provided with, a user identification code, password, or
any other piece of information as part of Provider’s security procedures,
Customer must treat such information as confidential. Customer must not
disclose it to any third party. Provider has the right to disable any user
identification code/user login or password, whether chosen by Customer or
allocated by Provider, at any time, if in Provider’s reasonable opinion,
Customer has failed to comply with any of the provisions of the Terms.
9.2 Confidentiality obligations: Each of the Parties will protect the other’s Confidential
Information from unauthorized use, access, or disclosure in the same manner as
each of the Parties protects its own Confidential Information, and in any
event, no less than reasonable care. Except as otherwise expressly permitted
pursuant to the Terms, each of the Parties may use the other’s Confidential
Information solely to exercise its respective rights and perform its respective
obligations under the Terms and shall disclose such Confidential Information
solely to those of its respective employees, representatives and agents who
have a need to know such Confidential Information for such purposes and who are
bound in writing to maintain the confidentiality of, and not misuse, such
Confidential Information; provided, however, that Provider may use feedback and
Customer (or Customer’s End-Users) data to provide Customer reports on
Customer’s usage/implementation of the Service(s), or for Provider’s product
development. The provisions of this sub-section shall supersede any non-disclosure
agreement by and between the Parties entered into, prior to the Terms that
would purport to address the confidentiality of Service Data and such agreement
shall have no further force or effect with respect to Service Data.
9.3 Data Security: Provider will use appropriate technical and organizational measures
to protect the Service Data. Provider’s measures are designed to provide a
level of security appropriate to the risk of Processing the Service Data.
Customer understands that Provider and its Affiliates shall process Service
Data in accordance with Applicable Data Protection Law(s) and in accordance
with its Privacy Notice which is incorporated into the Terms by reference.
10. Data Export
10.1 Data Export: Provider strongly recommends that Customer export all Service
Data before Customer terminates Customer’s Account. Customer agrees following
the termination of Customer’s Account either by Customer or Provider, Service
Data will be retained or deleted in accordance with Supplemental Terms, as
applicable to Customer. Where the Service Data is retained and can be exported,
Customer may contact Provider within such Data Retention Period to export
Customer’s Service Data. Service Data cannot be recovered once it is deleted.
11.Disclaimer of Warranties
PROVIDER WARRANTS THAT THE SERVICE(S) WILL
PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. THE
THIRD-PARTY SERVICE(S), ALL SERVER, NETWORK COMPONENTS, APPS, APIs, AND DATA
MIGRATION ARE PROVIDED “AS IS”. EXCEPT AS SET FORTH HEREIN, ALL REPRESENTATIONS
AND WARRANTIES, INCLUDING ALL LIMITED WARRANTIES SUCH AS ANY IMPLIED WARRANTY
OF MERCHANTABILITY, FITNESS, FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE
CUSTOMER ACKNOWLEDGES THAT PROVIDER DOES
NOT WARRANT THAT THE ACCESS TO THE SERVICE(S), WHICH IS PROVIDED OVER INTERNET
AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND PROVIDER’S
CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES
OR OTHER MALICIOUS SOFTWARE.
12. Limitation of Liability
SUBJECT TO APPLICABLE LAW AND
NOTWITHSTANDING ANYTHING ELSE IN THE TERMS, IN NO EVENT WILL PROVIDER BE LIABLE
FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR
COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT,
WARRANTY OR ANY OTHER LEGAL THEORY. PROVIDER’S AGGREGATE LIABILITY AND THAT OF
ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING
TO THE SERVICE(S), WILL NOT EXCEED AN AMOUNT EQUAL TO THE SUBSCRIPTION CHARGES
PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO
THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE
THE LIMITATIONS AND EXCLUSIONS ALSO APPLY
IF THIS REMEDY DOES NOT FULLY COMPENSATE CUSTOMER FOR ANY LOSSES OR FAILS OF
ITS ESSENTIAL PURPOSE.
13.1 Indemnification By Provider: Subject to Customer’s compliance with the Terms, Provider will
indemnify Customer, from any claim brought against Customer by a third-party
alleging that Customer’s use of the Service(s) as contemplated hereunder
infringes such third-party’s registered patent, copyright, or trademark (an “IP
Claim”). Provider shall, at its expense, defend such IP Claim and pay damages
finally awarded against Customer in connection therewith, including the
reasonable attorney’s fees, provided that Customer (a) promptly notifies
Provider of the threat or notice of such IP Claim; (b) gives Provider sole
control of the defense and settlement of the Claim; and (c) fully cooperates
with Provider in connection therewith. Provider’s indemnification obligation
shall be offset to the extent its ability to defend or settle a claim is
jeopardized by Customer’s failure to comply with the preceding sentence.
Provider will have no liability or obligation with respect to any IP Claim if
such claim is caused in whole or in part by (i) compliance with designs, data,
instructions or specifications provided by Customer; (ii) modification of the
Service(s) by anyone other than Provider; (iii) suits arising from Customer’s
competitors; or (iv) the combination, operation or use of the Service(s) with
other hardware or software where the Service(s) would not by themselves be
After an IP Claim has been settled or adjudicated and there are no
further appeals, Provider may at its own option and expense (a) procure for
Customer the right to continue using the Service(s) as set forth hereunder; (b)
replace or modify the Service(s) to make it non-infringing; or (c) if options
(a) or (b) are not commercially and reasonably practicable as determined by
Provider, terminate Customer’s subscription to the Service(s) and repay
Customer, on a pro-rated basis, any Subscription Charges Customer has
previously paid Provider for the corresponding unused portion.
The sections above state Provider’s entire
liability and Customer’s exclusive remedy with respect to an IP Claim.
13.2 Indemnification by Customer: Customer will indemnify and hold Provider and Provider’s Affiliates
harmless against any claim brought by a third party against Provider, and its
respective employees, officers, directors, and agents arising from or related
to use of the Service(s) by Customer in breach of the Terms.
14.1 Use of 3rd Parties for
Payment Processing: Provider may use a third party service provider to
manage payment processing; provided, that such service provider is not
permitted to store, retain, or use Customer’s payment account information
except to process Customer’s payment information for Provider. Customer must
notify Provider of any change in Customer’s payment account information, either
by updating Customer’s Account or by e-mailing Provider at email@example.com.
14.2 Assignment: Customer shall not assign these Terms or any of its
rights or delegate any of its duties under the Terms without the prior written
consent of Provider. Subject to the foregoing, these Terms will be binding
upon, enforceable by, and inure to the benefit of the Parties and their
respective successors and assigns. Any attempted assignment in violation of
this section shall be null and void.
14.2 Entirety: These Terms, together with any SOF and Supplemental Terms,
constitutes the entire agreement and supersedes any and all prior agreements
between Customer and Provider regarding the subject matter hereof. In the event
of a conflict between any SOF or purchase order and these Terms, these Terms
shall prevail. Provider may amend these Terms from time to time, in which case
the new Terms will supersede prior versions. Customer is to read these Terms
carefully before Customer starts to use Provider’s Service(s) or Websites, as these
will apply to Customer’s use of the Service(s) and Our Websites. Customer is to
check these Terms from time to time to take notice of any changes Provider
makes, as they will be binding on Customer. Provider will notify Customer not
less than ten (10) days prior to the effective date of any amendments to these
terms of service and Customer’s continued use of the Service(s) following the
effective date of any such amendment may be relied upon by Provider as
Customer’s acceptance of any such amendment. With respect to amendments only to
the Supplemental Terms, Provider will notify Customer as aforementioned only if
the Supplemental Terms are applicable to Customer. Provider’s failure to
enforce at any time any provision of these Terms does not constitute a waiver
of that provision or of any other provision of the Terms.
14.4 Severability: If any provision in the Terms is held by a court of competent
jurisdiction to be unenforceable, such provision shall be modified by the court
and interpreted so as to best accomplish the original provision to the fullest
extent permitted by applicable law, and the remaining provisions of the Terms
shall remain in effect.
14.5 No Waiver: Provider’s non-exercise of any right under or any provision of the
Terms, does not constitute a waiver of that right or provision of the Terms.
14.6 Export Compliance and Use
Restrictions: The Service(s) and other
Software or components of the Service(s) which Provider may provide or make
available to Customer or Users may be subject to U.S. (or other territories)
export control and economic sanctions laws, rules and regulations, including
without limitation the regulations promulgated by the U.S. Department of
Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of
the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export
Control Laws”). Customer agrees to comply with all the Export Control Laws as
they relate to access to and use of the Service(s), Software, and such other
components by Customer and Users. Customer shall not access or use the
Service(s) if Customer is located in any jurisdiction in which the provision of
the Service(s), Software or other components is prohibited under U.S. or other
applicable laws or regulations, including, without limitation, a country or
territory that is subject to comprehensive U.S. trade sanctions (including
Crimea, Cuba, Iran, North Korea, and Syria) (a “Prohibited Jurisdiction”) and
Customer shall not provide access to the Service(s) to any government, entity or
individual located in any Prohibited Jurisdiction. Customer represents,
warrants and covenants that (i) Customer is not named on, or owned or
controlled by any party named on any U.S. government (or other government) list
of persons or entities prohibited from receiving U.S. exports, or transacting
with any U.S. person, (ii) Customer is not a national of, located in, or
a company registered in, any Prohibited Jurisdiction, (iii) Customer shall not
permit Users to access or use the Service(s) in violation of any Export Control
Laws, (iv) no Service Data created or submitted by Customer is subject to any
restriction on disclosure, transfer, download, export or re-export under the
Export Control Laws, and (v) Customer shall comply with all applicable laws regarding
the transmission of technical data exported from the United States and the
country in which Customer and Customer’s Users are located.
further agrees that Customer will not use the Service(s) to disclose, transfer,
download, export or re-export, directly or indirectly, any Service Data to any
country, entity or other party which is ineligible to receive such items under
the Export Control Laws or under other laws or regulations to which Customer
may be subject. Customer acknowledges that the Service(s) and other Software
may not be available in all jurisdictions and that Customer is solely
responsible for complying with the Export Control Laws.
14.8 Federal Govt End Use
Restrictions: If Customer is a U.S. federal
government department or agency or contracting on behalf of such department or
agency, this Service(s) is a “Commercial Item” as that term is defined at 48
C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial
Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212
or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R.
§227.7202-1 through 227.7202-4, as applicable, the Service(s) is licensed to
Customer with only those rights as provided under the Terms.
14.9 Relationship of the Parties: The Parties are independent contractors. These Terms do not
create a partnership, franchise, joint venture, agency, fiduciary or employment
relationship among the Parties.
14.10 Survival: Sections 2 (Responsibilities of Customer), 5 (Ownership of IPR), 7
(Billing, Plan Modifications and Payment), 8 (Term, Termination and
Suspension), 9 (Confidentiality), 11 (Disclaimer of Warranties), 12 (Limitation
of Liability), 13 (Indemnification), 14.10 (Survival), 14.11 (Notices),
14.12 (Consent to Electronic Communication), 14.14 (Governing Law)
and 14.15 Dispute Resolution) shall survive any termination of the Terms.
Termination of such agreement shall not limit either Party’s liability for
obligations accrued as of or prior to such termination or for any breach of the
14.11 Notices: All notices to be provided by Provider to Customer under the Terms
may be delivered in writing by (i) nationally recognized overnight delivery
service (“Courier”) or US mail to the contact mailing address provided by
Customer on any while subscribing to the Service(s); or (ii) electronic mail to
the e-mail address provided for Customer’s Account. Provider’s address for a
notice to Provider in writing by Courier or US Mail is: Primemove Technologies
Inc, 395 Myrtle Street, Cliffwood, New Jersey-07721, USA with a copy to firstname.lastname@example.org by
14.12 Consent to Electronic
Communication: All notices shall be deemed to
have been given immediately upon delivery by electronic mail, or if otherwise
delivered upon receipt or, if earlier, five (5) business days after being
deposited in the mail or with a Courier as permitted above.
14.13 Anti-Corruption: Customer agrees that neither Customer, nor any of Customer’s
respective officers, employees, agents, representatives, contractors,
intermediaries or any other person or entity acting on Customer’s behalf, has
taken, been offered, or will take any action, directly or indirectly, in
violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any
other applicable anti-corruption or anti-bribery laws, in connection with the
Terms and the Service(s) provided hereunder, including without limitation any
illegal or improper bribe, kickback, payment, gift, or thing of value from any
of Provider’s employees or agents. If Customer learns of any violation of the
above restriction, Customer will use reasonable efforts to promptly notify
Provider at email@example.com
14.14. Governing Law: The Terms shall be governed by the laws of the State of
California without regard to conflict of laws principles. Customer hereby
expressly agrees to submit to the exclusive personal jurisdiction of the
federal and state courts of the State of California, San Francisco County for
any claims or dispute relating to the Terms or Customer’s access to or use of
14.15 Dispute Resolution: Any dispute, claim or controversy arising out of or relating to the
Terms or the breach, termination, enforcement, interpretation, or validity
thereof, including the determination of the scope or applicability of the Terms
to arbitrate, shall be determined by arbitration in San Francisco, California.
The arbitration shall be administered by JAMS pursuant to its arbitration rules
and procedures. Judgment on the Award may be entered in any court having
jurisdiction. This section shall not preclude parties from seeking provisional
remedies in aid of arbitration from a court of appropriate jurisdiction.
15. Definitions: When used in this Agreement with the initial letters
capitalized, in addition to terms defined elsewhere in this Agreement, the
following terms have the following meanings:
15.1 Account: means any accounts or instances created by or on behalf of
Customer for access to and use of any of the Service(s).
means, with respect to a Party, any entity that directly or indirectly
controls, is controlled by, or is under common control with such Party, whereby
“control” (including, with correlative meaning, the terms “controlled
by” and “under common control”) means the possession, directly or indirectly,
of the power to direct, or cause the direction of the management and policies
of such person, whether through the ownership of voting securities, by
contract, or otherwise.
15.3 API: means the application programming interfaces developed, enabled by,
or licensed to Provider that permits a User to access certain functionality
provided by the Service(s).
15.4 Apps: mean the software applications listed on the Market Place
which are created, developed, licensed, or owned by third-party developers. The
term also includes any updates, upgrades and other changes to such software
applications and versions thereof.
15.5 Applicable Data Protection
Law(s): shall mean the data protection laws of
the country in which Controller is established, including the GDPR, and any
data protection laws applicable to Controller in connection with the Agreement.
Information: means all information created by the Agreement or disclosed by
one Party to the other Party, orally, in writing or electronically, designated
as “confidential” (or with a similar legend) or which a reasonable person would
understand to be confidential given the nature of the information and
circumstances of disclosure. For purposes of this Agreement, Service Data shall
be deemed Confidential Information. Notwithstanding the foregoing, Confidential
Information shall not include any information which (a) was publicly known
and made generally available in the public domain prior to the time of
disclosure by the disclosing Party; (b) becomes publicly known and made
generally available after disclosure by the disclosing Party to the receiving
Party through no action or inaction of the receiving Party; (c) is already
in the possession of the receiving Party at the time of disclosure by the
disclosing Party as shown by the receiving Party’s files and records prior to
the time of disclosure; (d) is obtained by the receiving Party from a
third party without a breach of such third party’s obligations of confidentiality;
(e) is independently developed by the receiving Party without use of or
reference to the disclosing Party’s Confidential Information, as shown by
documents and other competent evidence in the receiving Party’s possession; or
(f) is required by law to be disclosed by the receiving Party, provided that
the receiving Party shall, to the extent legally permitted, give the disclosing
Party written notice of such requirement prior to disclosing so that the
disclosing Party may seek a protective order or other appropriate relief.
15.7 Data Processing
Addendum: means the data processing addendum
available here; as updated from time to time, which shall govern Service
Data to the extent that it includes Personal Data and involves transferring
such Personal Data outside the European Economic Area or Switzerland to any
country not deemed by the European Commission as providing an adequate level of
protection for personal data.
15.8 Data Retention Period: means the period of Service Data retention that is calculated from
the date of termination of Customer Account before its deletion from Service(s)
during normal course of business operation.
15.9 Documentation: means any published data sheet provided by Provider detailing the
functionalities of the Software.
15.10 End User: means any person or entity other than Customer or Customer’s Users
with whom Customer interacts using the Service(s).
Place: means an online marketplace for Apps that interoperate with the
Service(s). Its Website(s) is https://www.neoxcel.com/apps/.
Applications: mean the software applications created, developed, and
owned by Provider to enable access and use of the Service(s) through mobile or
other handheld devices (such as apps on iOS or Android devices).
Process: means any operation or set of operations which is performed upon
Personal Data, whether or not by automatic means, such as collection,
recording, organization, storage, adaptation or alteration, retrieval,
consultation, use, disclosure by transmission, dissemination or otherwise
making available, alignment or combination, blocking, erasure or destruction.
15.14 Privacy Notice: means Provider’s privacy notice at www.Neoxcel.com/privacy as
updated from time to time.
15.15 Processing/To Process: means any operation or set of operations which is performed upon
Personal Data, whether or not by automatic means, such as collection,
recording, organization, storage, adaptation or alteration, retrieval,
consultation, use, disclosure by transmission, dissemination or otherwise
making available, alignment or combination, blocking, erasure or destruction.
15.16 Service Data: means all electronic data, text, messages or other materials,
including without limitation Personal Data of Users and End-Users, submitted to
the Service(s) by Customer through Customer’s Account in connection with
Customer’ use of the Service(s).
Order Form or SOF: means any service order form referencing this
Agreement and executed or approved by Customer and Provider with respect to
Customer’s subscription to the Service(s), or (ii) any online ordering document
or process completed by Customer, each of which form may detail, among other
things, the number of Users authorized to use the Service(s) under Customer’s subscription
to the Service(s) and the Service Plan(s) applicable to Customer’s subscription
to the Service(s).
15.18. Service(s): mean and include Neoxcel Books, Neoxcel Teams, Neoxcel
Projects, Neoxcel OneSuite, Neoxcel Cart, Neoxcel Sales, Neoxcel POS, Neoxcel
Inventory and/or any new services that Provider may introduce as Service(s) to
which Customer may subscribe to and any Updates, modifications or improvements
to the Service(s), including individually and collectively, Software, the API
and any Documentation, but exclude any Apps or APIs that belong to third
15.19. Service Plan(s): means the pricing plan(s) and the functionality and Services
associated therewith for which Customer subscribes with respect to any User.
15.20 Software: means software provided by Provider (either by download or
access through the internet) that allows Customer to use any functionality in
connection with the Service(s) and includes Mobile Application(s), but excludes
any Apps or APIs that belong to third parties.
15.21 Subscription Term: means the period during which Customer has agreed to subscribe to
the Service(s) with respect to any individual User.
15.22 Supplemental Terms: means the Service(s) additionally applicable to Customer when
Customer enables, accesses, or uses such Service.
15.23 User: means an individual who is authorized by Customer to use the
Service(s) including an Account administrator, employees, consultants,
contractors, and agents of Customer, and third parties with which Customer
15.24 Website(s): means
the websites for various Service(s) and other websites that Provider operates.