Introduction: The below information contains the “Terms of Service” for active clients who have signed an “Agreement” with Z2 Systems, Inc. for use of NeonCRM.
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NeonCRM Terms of Service
- SCOPE OF AGREEMENT
Z2 Systems, Inc. (“Z2 Systems”) shall provide Customer with the services detailed in the final Z2 Systems Proposal (“Proposal”) as agreed upon between Z2 Systems and Customer (collective “Parties”) pursuant to the terms of the Z2 Systems Services, Inc. Terms of Service Agreement (“Agreement”), the Operating Rules (“Rules”) attached as Appendix A to this Agreement, and terms and conditions of the Proposal.
- ENTIRE AGREEMENT
This Agreement, the Rules, the Proposal, and NeonCRM Custom Import Agreement, if applicable, is the entire agreement between the Parties. It supersedes all prior agreements between the parties and sets forth all the covenants, promises, agreements, conditions, and understandings between the Parties. No alteration, amendment, change, or addition to the Agreement, Rules, Proposal, or NeonCRM Custom Import Agreement, if applicable, shall be binding on Parties unless reduced to writing and signed by each party except for amendments to the Rules pursuant to paragraph 10.
- EFFECTIVE DATE
This Agreement becomes effective upon the date it is signed and submitted by the Customer to Z2 Systems.
In addition to acceptance by signing the Proposal, Customer accepts this Agreement by accessing any services, accepting any services, or via transmission of an online order form. Customer may not access, use, or accept services unless they have accepted this Agreement.
- CONTRACT TERM AND AUTOMATIC RENEWAL
This Agreement shall be binding on Parties for one year from the effective date of this Agreement. For the purposes of this Agreement, the effective date, month and day shall be the anniversary date (“Anniversary Date”) for all subsequent years. In the event the Anniversary Date falls on a day that does not exist in that calendar year, the next calendar day in that year shall be the Anniversary Date. This Agreement shall automatically renew, for an additional one year term, on each subsequent Anniversary Date until the contract is terminated pursuant to paragraph 20.
Z2 Systems, grants Customer a nonexclusive, nontransferable worldwide right to use the NeonCRM System software during the term of this Agreement, solely for Customer’s own internal business purposes, pursuant to the terms of this Agreement. The software is licensed, not sold; and all rights not expressly granted to Customer are reserved by Z2 Systems. Z2 Systems may update its software from time to time. Customer agrees to accept any updates pursuant to these terms unless new terms are included with the update, in which case; those terms shall apply. It is expressly prohibited for Customer to:
(a) License, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the NeonCRM System software except as specifically provided for in paragraph 10;
(b) Reverse engineer the NeonCRM System software or access the NeonCRM system to build a competitive product or provide a competitive service;
(c) Modify or make derivative works based upon the NeonCRM System or copy any ideas, features, functions or graphics; or
(d) Commercially exploit the NeonCRM System or Z2 Systems owned Content in any way.
Within twenty-one days following acceptance of this Agreement, Z2 Systems shall create a system administrative user account for Customer to access the NeonCRM System.
- CUSTOMER DATA
Customer agrees to provide Z2 Systems all information and data necessary to complete the services outlined in the Proposal. Data submitted by the Customer (“Customer Data”) for use on the NeonCRM System or in conjunction with services, whether supplied by the Customer or by third parties, shall remain the sole property of the Customer or such third parties, as applicable, unless expressly stated.
Customer grants to Z2 Systems the nonexclusive, worldwide, right to use, copy, store, transmit and display Customer Data to the extent necessary to provide services pursuant to the Proposal. Z2 Systems will not sell, license, share, transfer or otherwise disclose Customer Data, specifically including but not limited to constituent lists or list administer login information, to any third party except when expressly directed by Customer or when required by law. Z2 Systems may disclose Customer Data to its employees and agents and access Customer Data in order to provide technical support to Customer.
Z2 Systems shall back up Customer Data on a daily basis. The backup copy of Customer Data shall be made available to Customer upon twenty-four hour notice excluding weekends and federal holidays. Additionally, Customer may backup Customer Data using the Z2 Systems backup utility (standard SQL format) at any time.
Z2 Systems shall exercise reasonable commercial efforts to make the NeonCRM System secure. Customer, however, is solely responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data. Z2 Systems shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. It is Customer’s sole responsibility to request a backup copy of Customer Data or use the Z2 Systems backup utility to avoid any economic loss associated with Customer Data. Upon termination of this Agreement, except by Customer breach, Z2 Systems shall make Customer Data available for copying for thirty calendar days after the termination date. Z2 Systems reserves the right to delete Customer Data thirty-one calendar days after termination of this Agreement.
- NO WARRANTY
Although Z2 Systems, Inc. will take all reasonable steps to provide error-free and continuous service, Z2 Systems does not represent, warrant, or guarantee that the database service will be uninterrupted or error-free. As a result, the database service is provided “as is” without warranty of any kind. Z2 Systems disclaims all warranties, either expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and infringement.
- USE OF THE NeonCRM SYSTEM
Customer may use NeonCRM for any legitimate business purpose relating to the services detailed in the Proposal including but not limited to display and transmission of customer and Z2 Systems generated information, communications, software, photos, video, graphics, music, sounds, or other material (collectively “Content”) pursuant to the terms of this Agreement. Customer may charge its users under separate agreements for use of the NeonCRM System and for Content used on the NeonCRM System.
Customer agrees to use NeonCRM in accordance with the Rules attached as Appendix A. Z2 Systems reserves the right to amend the Rules, at its sole discretion, for any legitimate business purpose including but not limited to strategic planning of their brand. Z2 Systems shall notify Customer of any amendment(s) to the Rules pursuant to paragraph 21. Amendments to the Rules become effective fourteen calendar days after notification (“Notification Period”). Customer may terminate this Agreement, pursuant to paragraph 20, at any time during the Notification Period. Continued use of the NeonCRM System by Customer after the Notification Period constitutes acceptance of the Rules amendment(s) and shall be deemed consent by Customer to the Rules amendment(s). Failure by Customer or Customer’s users to follow the Rules is a material breach of this Agreement.
- INDEPENDENT CONTENT PROVIDER
Under this Agreement, Z2 Systems is an independent content provider (“ICP”). As an ICP, Customer is responsible and liable for any and all activities conducted through its account on the NeonCRM System by Customer and Customer’s users regardless of whether or not Customer has authorized any such uses.
- CONTENT AND INTELLECTUAL PROPERTY RIGHTS
Customer acknowledges that Content, whether provided by Customer, Z2 Systems, or third parties, may include material which is the subject of and protected by copyrights, trademarks, service marks, and other proprietary rights (“Rights”). Customer acknowledges that such Rights are valid and valuable and are protected and apply to all media that now exists or may exist in the future. Customer’s ability to use any Content, which is protected by such Rights, shall be governed by applicable law including relevant patent and trademark law and the terms of this Agreement.
Customer acknowledges that its use of the NeonCRM System allows access to Content originating from other customers, ICP’s, and third parties located in countries other than the United States. Customer agrees that its access to and use of such Content may be governed by additional terms, operating polices, and international laws.
Customer warrants that Customer and Customer’s users shall:
(a) Only transmit on the NeonCRM System, Content that is not subject to any Rights in favor of any other party unless the holder of any such Rights has given expressed written consent to transmit said Content on the NeonCRM System and
(b) That by transmitting or allowing the transmission of any Content on the NeonCRM system, Customer and Customer’s users automatically warrant that Z2 Systems has the royalty-free, irrevocable, nonexclusive worldwide right to transmit and display such Content in whole or in part on the NeonCRM System.
- LIMITED LIABILITY AND CLASS ACTION WAIVER
The provisions of paragraph 13 shall apply to any action at law, in equity, or arbitration:
(a) Z2 System’s total liability, if any, with respect to the subject matter of this Agreement (including but not limited to liability arising out of contact, tort, strict liability, breach of warranty, or otherwise), is limited to charges collected by Z2 Systems under this Agreement in the twelve month period immediately preceding to the initial act, injury, or occurrence that gave rise to the liability;
(b) Z2 Systems shall not be liable for any loss of profits or revenue, special, punitive, incidental, or consequential damages in any action arising out of the subject matter of this Agreement, specifically including but not limited to loss or corruption of Customer Data, whether or not foreseeable and even if Z2 Systems has been advised or had previous knowledge of the possibility of such damages;
(c) Z2 Systems shall not be liable for failure to perform due to acts of God, the public enemy, any government or agency thereof, fires, floods, epidemics, quarantine restrictions, strikes, work stoppages, freight embargos, severe weather, differences with workmen, restrictions imposed by governmental agencies, war, hostilities, riot, rebellion, delay in or lack of transportation facilities, inability to secure materials, power failure or fluctuation, the inability of any entity to connect to the Internet, or any other reason beyond the control of Z2 Systems; and
(d) Any proceeding to resolve or litigate any dispute in any forum relating to this Agreement shall be conducted solely on an individual basis. Neither Party shall have any dispute heard as a class action or in any other proceeding in which either Party acts or proposes to act in a representative capacity.
The provisions of this paragraph shall apply to any claims brought against Customer by a third party for damages based on an improper license grant of the NeonCRM system to Customer.
- INDEMNIFICATION BY Z2 SYSTEMS
Z2 Systems will defend and indemnify Customer and hold Customer harmless from all liabilities, claims, and expenses (including attorney’s fees) (collectively “Damages”), arising from a third party claim for Damages resulting from breach of this Agreement by Z2 Systems, negligence, or malicious misconduct by Z2 Systems or its employees in connection with the performance of services under this Agreement.
- INDEMNIFICATION BY CUSTOMER
Customer will defend and indemnify Z2 Systems and hold Z2 Systems harmless from all Damages arising from a third party claim for Damages resulting from breach of this Agreement by Customer, the transmission by Customer or Customer’s users of any Content on the NeonCRM System (whether or not such use was authorized by Customer), negligence, malicious misconduct by Customer, its employees, or agents or any action arising out Customer Conduct in violation of the Rules.
- INDEMNIFICATION COOPERATION, CONTROL OF DEFENSE, AND LIMITATION
In any case where a Party is required to provide indemnification pursuant to this Agreement, the indemnified party, at the indemnifying party’s expense will cooperate with the indemnifying party in the defense of any matters which are the subject of the indemnification; however, the indemnified party reserves the right to approve any settlement agreement in connection with any such matter that is not fully covered by applicable insurance. The indemnified party also reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party; but in that event the indemnifying party shall have no further obligation to indemnify with respect to that matter.
Customer agrees to pay for use of the NeonCRM System and for all additional services agreed upon in accordance with the prices set forth in the Proposal. If the number of records within Customer’s database exceeds the monthly pricing tier chosen at signing, the Customer will be notified and the monthly pricing tier will be adjusted in accordance with the prices set forth in the Proposal. Customer will be notified and given the chance to reduce the number of records to remain in the current pricing tier if desired. Reoccurring and hourly charges are due within thirty days from the date Z2 Systems sent the invoice. Payment for all one-time projects and training are due seven days before services are rendered. Z2 Systems shall perform those services within ninety days of payment unless otherwise agreed upon between the Parties. Charges are non-refundable absent breach of this Agreement by Z2 Systems. All prices, statements, invoices, and charges are in United States Dollars (USD).
- LATE CHARGES
Customer hereby acknowledges that late payment by Customer to Z2 Systems for services and other sums due pursuant to this Agreement will cause Z2 Systems to incur costs not contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Accordingly, if any charges or other sums due from Customer are not received by Z2 Systems in accordance with paragraph 17, Customer shall pay to Z2 Systems a late charge equal to ten percent of such overdue amount. Parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Z2 Systems will incur by reason of late payment by Customer. Said late charge represents only the costs incurred by Z2 Systems due to the delay in payment and in no way limits, but is concurrent with, Z2 Systems’ other rights and remedies under this Agreement. The total past due amount of monies owed Z2 Systems under the terms of this Agreement shall bear interest from the past due date at a per annum interest rate equal to the lesser of ten percent per annum or the maximum rate allowed by applicable usury law. A zero balance on any subsequent invoice constitutes waiver of late charges by Z2 Systems. Failure to make payments sufficient to establish a zero balance for any two consecutive months is a material breach of this Agreement.
- ESCALATION OF PRICES
All prices in the proposal may increase by 3% on the first day of each January after acceptance of this Agreement. Failure by Z2 Systems to reflect the escalation of charges on the first applicable invoice in any one year constitutes a waiver of the escalation of charges for that year. In the event of waiver of escalation of charges in any year(s), Z2 Systems reserves the right to escalate the charges in any subsequent year to reflect the rate that should be charged pursuant to this paragraph had the rate increased each year.
- TERMINATION OF THIS AGREEMENT
This Agreement may be terminated:
(a) By either Party upon thirty calendar days’ notice preceding any Anniversary Date;
(b) By a signed agreement between the Parties;
(c) By Customer upon thirty calendar days’ notice after the first year’s Contract Term;
(d) By Customer upon notice at any time during the Notification Period of an amendment(s) to the Rules;
(e) By Customer upon notice of any breach of this Agreement by Z2 Systems. In the event of breach by Z2 Systems, Customer Data shall be made available to Customer for copying within seven calendar days of the termination notice and Z2 Systems shall make Customer Data available for copying by Customer for a minimum of twenty-three calendar days following the notice of breach.
(f) By Z2 Systems upon notice of any breach of this Agreement by Customer. Customer shall be responsible for and shall pay to Z2 Systems all amounts due and owing under this Agreement as of the termination date. In the event of breach by Customer, Z2 Systems may:
(i) Suspend Customer’s use and access to the NeonCRM System and Customer Data;
(ii) Suspend any other person’s use and access, including but not limited to any person using the NeonCRM System through Customer’s account with or without Customer’s authority, to the NeonCRM System and Customer Data;
(iii) Prevent the copying and export of Customer Data; and
(iv) Delete Customer Data stored in the NeonCRM System if Customer fails to cure the breach within thirty calendar days.
Notices required by this Agreement shall be sent by email. Notices to Z2 Systems shall be sent to email@example.com. Notices to Customer shall be sent to the email address(es) listed on the Proposal. Either Party may update the email address for notification purposes at any time pursuant to the notice requirements of this paragraph. A sent confirmation is prima facie evidence that the notice was sent and all sent emails are deemed received twenty-four hours after the timestamp on the sent email.
- CHOICE OF LAW
The laws of the State of Illinois shall govern this Agreement. Parties submit to the exclusive jurisdiction of Illinois courts to enforce this Agreement or any action relating to this Agreement. This agreement shall bind and be for the benefit of the Parties and their respective successors and assigns.
If any provision of the Agreement is held invalid, the remainder or this Agreement shall not be affected.
The failure to insist upon strict enforcement of any of the provisions of this Agreement or instrument delivered pursuant hereto shall not be deemed to be a waiver of any such provision unless agreed upon in writing.
- INDEPENDENT COUNSEL
Customer has been given the opportunity to consult with independent counsel and negotiate the terms of this Agreement prior to the effective date of this Agreement.
The paragraph headings are made part of this Agreement and are intended to aid in the interpretation of this Agreement, but in no way shall limit the content of the paragraphs. In the event of any ambiguity between this Agreement, the Rules, and the Proposal: the Rules shall supersede this Agreement and the Proposal; this Agreement shall supersede the Proposal.
- Customer agrees to use the NeonCRM System only for lawful purposes. Customer is responsible for any and all activities that occur under the Customer’s user accounts and shall abide by all the applicable local laws, state laws, federal laws, foreign laws,treaties, and regulations (collectively “Laws”). Customer shall take all reasonable steps to comply with the Laws including without limitation those related to data privacy, international communications, and the exportation of technical and personal data. Customer shall notify Z2 Systems within twenty-four hours of any potential Rights issues and use reasonable efforts to immediately stop any copying or distribution of Content that may be subject to Rights issues.
- Customer shall provide Z2 Systems notice of any changes to registration information with respect to Customer’s use of the NeonCRM System including but not limited to the identity, email addresses, and passwords of Customer’s authorized list administrators within three business days of any such changes. Updates shall be sent to firstname.lastname@example.org. Upon request,Customer shall provide Z2 Systems with accurate and complete registration information within three business days of said request.
- Customer is responsible for complying with the terms of any third party contracts, including but not limited to merchant accounts, that relate to its use of the NeonCRM System.
- Customer shall notify its authorized users that Z2 Systems is not responsible for and does not give any assurance to any person with respect to the validity, value, usefulness, or accuracy of Content. Customer and any person using Customer’s account shall bear all risk associated with any Content used on the NeonCRM System or in connection with services detailed in the Proposal. Customer may obtain the consent of its users by requiring perform sign-on procedures that confirm their agreement and acceptance of these conditions.
- Customer may not use the NeonCRM System to send unsolicited email (“Spam”). A sent email is Spam unless the email address was obtained by direct subscription (e.g. an opt-in check box). In the event Z2 Systems receives a Spam complaint, it may immediately suspend Customer’s account and require reconfirmation of subscription from each email address on the list in question.Unless otherwise agreed between the Parties, reconfirmation shall be made by sending a single email to each email address on the list in question requesting an updated opt-in. All email addresses that do not reconfirm within seven calendar days shall be deleted from Customer Data stored on the NeonCRM System. Z2 systems shall not proceed with reconfirmation without Customer consent.However, reconfirmation must be completed within ten calendar days from the date Z2 Systems notified Customer of the Spam complaint. Additionally, Z2 systems shall comply with all Laws regarding Spam.
- All communications utilizing the NeonCRM System must contain a valid Customer email address. Customer may not use the NeonCRM System to send email with an invalid “From” or Reply-to” address.
- Customer must be responsive to all replies utilizing the NeonCRM System including unsubscribe requests. The NeonCRM System will automatically include the unsubscribing section in the footer of email campaigns. Customer must respond to these unsubscribe requests within fourteen calendar days. Customer may not discard or delete any opt-out email until that email address has been deleted from the Customer list(s).
- Customer may not impersonate any person, including but not limited to a Z2 Systems agent, or communicate under any name or alias Customer is not entitled or authorized to use.
- Customer and Customer’s users may not use the NeonCRM System to harass, threaten, embarrass, or otherwise cause distress to any person or entity.
- Customer may not post or transmit Content on the NeonCRM System that is unlawful, sexually explicit, racially objectionable, or otherwise morally offensive, as determined by Z2 Systems in its sole discretion.
- Z2 Systems may monitor Customer’s use of the NeonCRM System, including Content. Z2 Systems has the right, but not the obligation, to require Customer to remove any Content utilizing the NeonCRM System that Z2 Systems, in its sole discretion,determines to be harmful to its business reputation.
- Z2 Systems may monitor any and all areas of the NeonCRM System to oversee compliance with this Agreement and the Rules.Customer will so inform its users that their use of the NeonCRM System constitutes consent to such monitoring.
- Customer shall take all reasonable measures to ensure the security of the NeonCRM System. Customer shall notify Z2 Systems within twenty-four hours of any unauthorized password use, Customer account access, suspected security issues, or known security breaches.
- Non-Identifiable or Aggregated Data: Client agrees and acknowledges that when accessing the NeonCRM System, Z2 Systems also receives and stores certain personally non-identifiable information. Such information, which is collected passively using various technologies, cannot presently be used to specifically identify Customer. Z2 Systems may store such information itself or such information may be included in databases owned and maintained by Z2 Systems affiliates, agents or service providers. Z2 Systems may use such information and pool it with other information to track, for example, the total number of visitors or users of the NeonCRM System, the number of visitors to each page of Z2 Systems website, the domain names of Z2 Systems visitors’ Internet service providers, and how Customers use and interact with the NeonCRM System. Also, in an ongoing effort to better understand and serve the users of the NeonCRM System, Z2 Systems may conduct research on its customer demographics, interests and behavior based on the Personal Data and other information provided to Z2 Systems. This research may be compiled and analyzed on an aggregate basis. Z2 Systems may share this non-identifiable and aggregate data with its affiliates, agents and business partners, but this type of non-identifiable and aggregate information does not identify Customer personally. Z2 Systems may also disclose aggregated user statistics in order to describe Z2 Systems services to current and prospective business partners and to other third parties for other lawful purposes. To opt out of data collection, email email@example.com.