1. DEFINITIONS. For purposes of the Neumo Terms of Use and Service Level Agreement (the “TOU”), the following terms have the meanings set forth below or, if defined elsewhere in the TOU, in the location of such definition.
1.1 “Access Credentials” means any username, identification number, password, license or security key, security token, personal identification number (PIN), or other security code, method, technology, or device used alone or in combination to verify an individual’s identity and authorization to access and use the Services.
1.2 “ACH” means the Automated Clearing House network, a payment system governed by the Operating Rules of the National Automated Clearing House Association (“NACHA”), used for the electronic transfer of funds between U.S. financial institutions, including ACH debit and ACH credit transactions. References in the TOU to ACH payments or transfers include any such transactions processed through the ACH network in accordance with applicable law and NACHA Rules.
1.3 “Aggregated Statistics” means data and information related to Customer’s use of the Services that Neumo may use in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.4 “Agreement” means these Terms of Use, together with all Order Forms executed or otherwise accepted by Customer, and any amendments made in accordance with the Agreement.
1.5 “Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the Agreement, and (b) for whom access to the Services has been purchased hereunder.
1.6 “Customer Data” means information, data, and other content, in any form or medium, collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services, including information derived from Customer’s use of the Services. For the avoidance of doubt, Customer Data does not include Aggregated Statistics, Resultant Data, or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
1.7 “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
1.8 “Documentation” means Neumo’s user manuals, handbooks, and guides relating to the Services provided by Neumo to Customer either electronically or in hard copy form, as updated from time to time.
1.9 “Fees” means the fees set forth in the applicable Order Form, including any subscription fees, implementation fees, professional services fees, payment facilitation fees, and any other fees chargeable to Customer under the Agreement.
1.10 “Government Services Portal” means Neumo’s secure, cloud-based web application and related interfaces made available to Customer for administrative access, reporting, data exchange, and account management associated with the Services, including without limitation taxpayer listings, payment reconciliations, and fund-distribution reports. The Government Services Portal is part of the Neumo Systems and Neumo Materials, and Customer’s access to and use of the Government Services Portal are governed by the Agreement.
1.11 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede any computer, software, firmware, hardware, system, or network, or any application or function thereof, or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Neumo Systems as intended by the Agreement.
1.12 “Order Form” means a written document executed by the Parties that describes the Services, Term, Fees, and any other terms applicable to Customer’s access and use of the Services. Each executed Order Form is incorporated herein by reference.
1.13 “Neumo IP” or “Neumo Materials” means the Services, Specifications, Documentation, and Neumo Systems, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, inventions, and other technologies provided or used by Neumo or any subcontractor in connection with the Services or that otherwise comprise or relate to the Services or Neumo Systems. Neumo IP includes Aggregated Statistics, Resultant Data, and any information derived from Neumo’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
1.14 “Neumo Systems” means the information technology infrastructure used by or on behalf of Neumo in performing the Services, including all computers, software, hardware, databases, electronic systems, and networks, whether operated directly by Neumo or through the use of third-party services.
1.15 “Resultant Data” means data and information related to Customer’s use of the Services that Neumo uses in an aggregated, anonymized, and de-identified manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.16 “Services” means, collectively, the software-as-a-service offerings, professional services, maintenance services, support services, payment processing services, and any other products or services provided by Neumo to Customer under the Agreement, as further described in the applicable Order Form or SOW (and, where applicable, in the specific sections of the Agreement addressing such services).
1.17 “Specifications” means the specifications for the Services set forth in the Documentation or in the applicable Order Form.
1.18 “SOW” means a written document executed by both Parties that describes specific Professional Services to be provided by Neumo under an Order Form, including the applicable scope of work, assumptions, milestones, deliverables, Fees, and payment schedule. Each SOW shall be subject to and governed by the Agreement and shall be deemed incorporated herein by reference. No SOW shall be binding unless and until (a) it is executed by authorized representatives of both Parties, or (b) it is attached to and incorporated into an Order Form accepted by Customer, in which case Customer’s acceptance of the Order Form shall constitute acceptance of the attached SOW. In the event of a conflict between the terms of a SOW and an Order Form, the SOW shall control only with respect to the scope of Professional Services, deliverables, and related Fees expressly set forth therein, and the Agreement shall control in all other respects.
1.19 “Third-Party Materials” means materials and information, in any form or medium, including open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Neumo.
2. ACCESS AND USE OF THE SERVICES
2.1 Incorporation of Terms of Use. These Terms of Use are incorporated by reference into each Order Form executed or otherwise accepted by Customer (subject to limitations indicated in the Order Form). By signing or otherwise accepting an Order Form, or by accessing or using the Services, Customer acknowledges and agrees that it has read, understood, and is bound by these Terms of Use. In the event of a conflict between the terms of an Order Form and these Terms of Use, the Order Form shall govern with respect to commercial terms (including scope of Services, Fees, payment schedules, and implementation details), and these Terms of Use shall govern with respect to all other terms and conditions.
2.2 Grant of Rights. Subject to the terms and conditions of the Agreement, Neumo hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services during the Term, solely for use by Authorized Users for Customer’s internal business purposes in accordance with the Agreement and the applicable Order Form.
2.3 Documentation License. Neumo hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer’s internal purposes in connection with its use of the Services.
2.4 Service and System Control. Except as otherwise expressly provided herein, as between the Parties: (a) Neumo has and will retain sole and exclusive control over the operation, provision, maintenance, and management of the Services, the Neumo Materials, and the Neumo Systems, including the selection of hardware, software, and hosting providers, the provision of updates, enhancements, and modifications, and the engagement of subcontractors; and (b) Customer has and will retain sole responsibility for the operation, maintenance, and management of the Customer Systems and all access to and use of the Services by any Person by or through the Customer Systems or by any Authorized User.
2.5 Neumo Right to Modify. Neumo reserves the right, in its sole discretion, to make changes to the Services or Neumo Materials that it deems necessary or useful, including to: (a) maintain or enhance the quality or delivery of the Services; (b) maintain or enhance the competitive strength of, or market for, the Services; (c) improve cost efficiency or performance of the Services; or (d) comply with applicable Law.
2.6 Suspension of Services. Neumo may, directly or indirectly, and by use of a Neumo Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s or any Authorized User’s access to or use of all or any part of the Services or Neumo Materials, without incurring any resulting obligation or liability, if: (a) Neumo receives a governmental, judicial, or law enforcement demand or order that expressly or by reasonable implication requires Neumo to do so; (b) Neumo believes, in its commercially reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of the Agreement or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized hereunder; (ii) Customer or any Authorized User is, has been, or is likely to be involved in fraudulent, misleading, or unlawful activities relating to the Services; or (iii) such suspension is necessary to protect the security, availability, or integrity of the Services or Neumo Systems; or (c) the Agreement expires or is terminated. Neumo will use commercially reasonable efforts to provide advance notice of suspension where practicable and will restore access promptly after the basis for suspension is cured.
3. USE RESTRICTIONS
3.1 Prohibited Uses. Customer shall not, and shall not permit any other Person (including Authorized Users) to, access or use the Services or Neumo Materials except as expressly permitted under the Agreement. Without limiting the foregoing, Customer shall not: (a) copy, modify, or create derivative works or improvements of the Services or Neumo Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Neumo Materials to any third party, including on or in connection with the internet or any service bureau, software-as-a-service, cloud, or other technology; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Neumo Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or Neumo Materials or access or use the Services or Neumo Materials other than by an Authorized User using valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Services or Neumo Systems any information or materials that are unlawful, injurious, or contain, transmit, or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Neumo Systems, or Neumo’s provision of services to any third party; (g) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Neumo Materials; (h) access or use the Services or Neumo Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party or that violates any applicable Law; (i) access or use the Services or Neumo Materials for purposes of competitive analysis, the development, provision, or use of a competing software service or product, or any other purpose detrimental to Neumo; or (j) otherwise access or use the Services or Neumo Materials beyond the scope of the authorization granted under the Agreement.
3.2 Usage Limits. Customer shall not exceed any usage limits specified in the applicable Order Form, including limits on number of Authorized Users, transaction volumes, storage allocations, or geographic restrictions. Neumo may monitor Customer’s usage to ensure compliance and may charge additional Fees or suspend Services for overuse.
4. CUSTOMER RESPONSIBILITIES
4.1 General Responsibilities. Customer shall: (a) be responsible and liable for all uses of the Services and Neumo Materials resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement; (b) ensure that all Authorized Users are aware of and comply with the Agreement; (c) obtain and maintain all Customer Systems and obtain all consents necessary for Neumo to perform the Services; (d) provide all cooperation and assistance reasonably requested by Neumo to enable Neumo to exercise its rights and perform its obligations under the Agreement; (e) comply with all laws, rules, and regulations applicable to its use of the Services, including but not limited to data privacy, data security, payment card industry standards (PCI DSS), and any applicable card network rules; (f) maintain and promptly update all account and contact information, including bank account information if Neumo is remitting funds or collecting Fees on behalf of Customer; and (g) maintain minimum technical standards for workstations, browsers, scanners, and peripherals as specified by Neumo from time to time.
4.2 Customer Data. Customer is solely responsible for the accuracy, quality, legality, and appropriateness of all Customer Data. Customer shall not provide any Customer Data that infringes, misappropriates, or violates any intellectual property right, privacy right, or other right of any third party or that violates any applicable Law.
4.3 Effect of Customer Failures. Neumo shall not be responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s failure to perform any of its obligations hereunder (“Customer Failure”).
4.4 Corrective Action and Notice. If Customer becomes aware of any actual or threatened unauthorized activity prohibited by the Agreement, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control to stop the activity or threatened activity and to mitigate its effects (including discontinuing and preventing any unauthorized access and permanently deleting any improperly accessed data); and (b) notify Neumo of any such actual or threatened activity.
4.5 Distribution of Funds Changes. Customer is solely responsible for ensuring that all information relating to the distribution of funds, including without limitation designated recipients, account numbers, and allocation or distribution percentages (“Distribution Information”), remains accurate and up to date throughout the Term. If any change to the Distribution Information is required, Customer shall provide written notice to Neumo in accordance with Neumo’s then-current distribution change procedures and using any form or template specified by Neumo (currently referenced as the “Distribution of Funds Change Notice Template”). Customer acknowledges that Neumo may require up to thirty (30) calendar days from receipt of complete and accurate notice to implement such changes. Customer shall regularly review the reports made available through the applicable administrative or government services portal to confirm that all Distribution Information and any requested changes are correctly reflected, and Neumo shall not be responsible for any misdirected payments or delays resulting from inaccurate or incomplete Distribution Information provided by Customer.
5. FEES AND PAYMENT
5.1 Fees. Customer shall pay Neumo the fees set forth in the applicable Order Form and/or SOW (the “Fees”). Fees shall include, without limitation: (a) one-time implementation or configuration fees, which shall be invoiced and payable as specified in the applicable Order Form or SOW; (b) subscription fees for access to the Services, which unless otherwise expressly provided in an Order Form shall be invoiced annually in advance and shall be non-refundable except as expressly provided in the Agreement; (c) time-and-materials service fees, which unless otherwise expressly provided in an Order Form shall be invoiced monthly in arrears based on actual hours worked at Neumo’s then-current rates; and (d) maintenance and support fees, which unless otherwise expressly provided in an Order Form shall be invoiced annually in advance. Customer shall also reimburse Neumo for any expenses, including reasonable travel and out-of-pocket expenses, incurred in connection with the performance of services, provided that such expenses are authorized in the applicable Order Form or SOW. Unless otherwise set forth in an Order Form, all invoices are due and payable within thirty (30) days of the invoice date, in U.S. dollars, without set-off, deduction, or withholding of any kind (except as required by law).
5.2 Invoices and Payment. Neumo shall issue invoices for Fees in accordance with the applicable Order Form. Unless otherwise stated in the Order Form, Customer shall pay all invoiced amounts within thirty (30) days following Customer’s receipt of such invoice. Customer shall make all payments in U.S. dollars by wire transfer, ACH, check, or such other method of payment approved by Neumo in writing, without set-off, deduction, or withholding of any kind (except as may be required by applicable law).
5.3 Payment Facilitation. If Neumo processes payments on behalf of Customer, Neumo shall have the right to deduct its Fees and other charges from gross receipts prior to remitting net amounts to Customer. Neumo acts solely as a payment facilitator and not as a bank, trustee, or fiduciary. Customer may be required to execute additional agreements with Neumo’s third-party payment processors as a condition of using payment processing functionality. Customer shall remain solely responsible for all refunds, chargebacks, reversals, or compliance obligations under applicable law or card network rules.
5.4 Conversion to Net Remit. If any undisputed invoice remains unpaid more than ninety (90) days from the invoice date, Neumo may convert some or all of Customer’s billing terms to net remit for all current and future Services. Upon such conversion, Customer’s continued use of the Services for the applicable period of time shall be conditioned on Neumo’s actual receipt of applicable Fees collected on Customer’s behalf (including, where applicable, amounts deducted or offset from revenues or remittances otherwise due to Customer) before any further disbursement or distribution of funds to Customer. Neumo may, in its discretion, apply any amounts owed to Customer (including revenue-share payments, credits, or distributions of funds) against overdue invoices until all outstanding amounts are satisfied. Once Customer’s account is current and has remained current for at least two consecutive billing cycles, Neumo may, at its option, reinstate Customer’s prior billing terms.
6. SECURITY
6.1 Neumo Security Obligations. Neumo shall implement and maintain a comprehensive written information security program that complies with applicable law and incorporates industry-recognized standards and safeguards appropriate to the sensitivity of Customer Data. Without limiting the foregoing, Neumo shall: (a) maintain SOC 2 Type II certification and provide evidence of certification upon request; (b) require multi-factor authentication for system access; (c) encrypt Customer Data at rest and in transit using no less than TLS 1.2 or equivalent; (d) maintain a documented incident response plan and notify Customer without undue delay of any confirmed security incident involving Customer Data; (e) conduct regular vulnerability scans during development and production cycles; and (f) maintain policies and procedures to assess and monitor security practices of subcontractors and service providers.
6.2 Customer Security Obligations. Customer is responsible for safeguarding its Access Credentials and ensuring that only Authorized Users have access to the Services. Customer shall implement and maintain appropriate administrative, technical, and physical safeguards to prevent unauthorized access to or use of the Services. Customer shall promptly notify Neumo of any suspected or actual breach of security involving the Services, Access Credentials, or Customer Systems.
6.3 Data Security.
(a) Neumo Commitment. Neumo maintains and regularly reviews procedures for the effective management of data security incidents. A “Security Incident” means any actual, attempted, suspected, threatened, or reasonably foreseeable event that results in, or could reasonably be expected to result in, unauthorized access to, use of, disclosure of, or acquisition of Customer Data. If Neumo verifies a Security Incident that compromises or could reasonably be expected to compromise Customer Data, Neumo will notify Customer without undue delay, and in no event later than one (1) business day after discovery. Following such notification, Neumo will, at its own expense: (i) promptly investigate the Security Incident to determine its nature and scope; (ii) take all necessary steps to contain, mitigate, and remediate the Security Incident, including attempting to recover records, revoking unauthorized access, and correcting any identified vulnerabilities; (iii) provide Customer with an initial report of the Security Incident, including (to the extent then known) the nature of the incident, the categories of Customer Data involved, the identity of any unauthorized parties, the remedial measures taken, and any additional steps planned to prevent recurrence; and (iv) provide Customer with timely and material updates until resolution. Unless prohibited by law, Neumo will coordinate in good faith with Customer regarding any regulatory or individual breach notifications arising from a Security Incident.
(b) Customer Obligations. Customer must promptly report to Neumo any actual or suspected Security Incident involving Customer Data or Neumo Confidential Information by contacting legal@neumo.com with “Security Incident” in the subject line and providing appropriate contact information. Without limiting the foregoing, Customer shall: (i) immediately notify Neumo of any unauthorized use of Customer’s account credentials, passwords, or other known or suspected security breaches; (ii) promptly report and use reasonable efforts to stop any unauthorized copying, distribution, or other misuse of content in violation of the TOU or third-party intellectual property rights; and (iii) not impersonate another user or provide false identity information in connection with use of the Services.
7. PROFESSIONAL SERVICES
7.1 Scope of Professional Services. Neumo may perform professional services for Customer, including but not limited to implementation, configuration, data migration, training, consulting, and other non-subscription services (collectively, “Professional Services”). Professional Services shall be provided only as expressly described in an Order Form or in a SOW. No services, deliverables, or results shall be implied, and Neumo shall have no obligation to perform any services not expressly set forth in an Order Form or SOW.
7.2 Performance Standard. Neumo shall perform Professional Services in a professional and workmanlike manner in accordance with generally recognized industry standards. Customer acknowledges that Professional Services are advisory in nature and may include configuration or implementation assistance, but Neumo does not warrant or represent that Professional Services or Deliverables will be error-free, achieve Customer’s specific business objectives, or be compatible with non-Neumo systems except as expressly agreed in an Order Form.
7.3 Customer Responsibilities. Customer shall: (a) provide timely access to Customer’s systems, facilities, records, and personnel as reasonably necessary for Neumo to perform Professional Services; (b) provide qualified personnel, including subject matter experts, to assist with planning, testing, and acceptance of Professional Services; (c) promptly review and provide feedback on all Deliverables and materials provided by Neumo; (d) validate the accuracy and completeness of all data prior to migration or conversion and assume sole responsibility for post-migration data validation; and (e) comply with all other responsibilities expressly allocated to Customer in the applicable Order Form or SOW. Neumo shall not be liable for any delay, deficiency, or failure to perform caused by Customer’s failure to perform its responsibilities (“Customer Delays”). Any such Customer Delays may result in extension of project timelines and/or adjustment of Fees.
7.4 Change Management. Any changes to the scope, schedule, assumptions, or deliverables of the Professional Services must be agreed in a written change order executed by both Parties. Neumo shall be entitled to additional Fees for changes requested by Customer. Neumo shall have no obligation to commence work on any change until the applicable change order has been executed.
7.5 Deliverables and Ownership. Any work product, configurations, or deliverables (collectively, “Deliverables”) created in connection with Professional Services that are derivative of, enhancements to, or otherwise incorporate Neumo IP shall remain the sole property of Neumo. Customer shall receive only a non-exclusive, non-transferable, non-sublicensable license to use such Deliverables during the Term solely in connection with Customer’s authorized use of the Services. Deliverables consisting solely of Customer Data or Customer-provided content shall remain the property of Customer.
7.6 Acceptance of Professional Services. Unless otherwise specified in the applicable Order Form or SOW: (a) each Deliverable shall be deemed accepted upon the earlier of (i) Customer’s written confirmation of acceptance, or (ii) ten (10) business days following Neumo’s delivery of the Deliverable if Customer has not provided a written rejection specifying in reasonable detail the material non-conformity to the agreed specifications; (b) Customer may only reject a Deliverable for material non-conformity with the agreed specifications; and (c) if Customer timely rejects a Deliverable, Neumo shall use commercially reasonable efforts to correct such non-conformity and resubmit the Deliverable for acceptance, whereupon the acceptance process shall repeat.
7.7 Fees and Expenses. Customer shall pay Neumo the Fees for Professional Services as set forth in the applicable Order Form or SOW. Unless otherwise stated in an Order Form or SOW, Professional Services shall be billed on a time and materials basis at Neumo’s then-current rates, plus reasonable travel and out-of-pocket expenses incurred in performance of the Professional Services.
7.8 Exclusions. Professional Services are separate from Neumo’s standard Support Services described in Section 8. Neumo has no obligation to provide out-of-scope services or modifications except pursuant to a written Order Form or SOW.
8. SUPPORT SERVICES
8.1 Standard Support. Neumo shall provide Customer with standard support services for the Services at no additional charge during Neumo’s normal business hours. Support shall be provided via telephone, email, or Neumo’s designated customer support portal.
8.2 Error Correction. Neumo shall use commercially reasonable efforts to correct reproducible errors or malfunctions in the Services reported by Customer. Neumo does not warrant that it will be able to correct every error, nor that the Services will operate without interruption or be error-free.
8.3 Updates. Neumo may provide updates, enhancements, modifications, or improvements to the Services (“Updates”). Neumo shall determine in its sole discretion whether any Update will be made available at no additional charge or only upon payment of additional Fees. Customer shall promptly implement any required Updates. Neumo shall not be responsible for errors or failures resulting from Customer’s failure to install required Updates.
8.4 Support Classifications. Neumo may classify support requests into severity levels based on the impact of the reported issue on Customer’s operations. Neumo shall use commercially reasonable efforts to respond within the following target times:
| Severity Level: | Target Response Time (business hours): |
| P0 – Critical (total outage) | 15 minutes |
| P1 – High (major functionality impaired) | 2 hours |
| P2 – Medium (moderate impact issue) | 8 hours |
| P3 – Low (minor issue or request) | 12 hours |
8.5 Optional Support. Customer may purchase enhanced support services, including 24/7 support and dedicated technical assistance, at Neumo’s then-current rates.
9. MAINTENANCE SERVICES
9.1 Scope of Maintenance Services. If provided pursuant to an Order Form, and subject to Customer’s compliance with the Agreement, Neumo shall make available to Customer maintenance services (“Maintenance Services”), consisting of:
(a) software maintenance, including (i) updates, enhancements, patches, and fixes made generally available by Neumo to its customers, (ii) upgrades or new releases of the Services that Neumo, in its discretion, elects to make generally available to its customers under maintenance, and (iii) modifications or adjustments reasonably necessary to ensure that the Services remain in substantial conformity with applicable laws and regulations of general applicability that directly govern the Services; and/or
(b) hardware maintenance, but only to the extent that Customer has purchased hardware maintenance coverage under an applicable Order Form. Hardware maintenance, if purchased, shall be limited to repair or replacement of covered hardware in accordance with Neumo’s then-current maintenance policies and procedures, and may be satisfied by (i) replacement with refurbished equipment of like kind and quality, or (ii) referral to the applicable manufacturer’s warranty or support program.
9.2 Exclusions. Maintenance Services do not include: (a) any new modules, products, or functionality for which Neumo charges a separate fee; (b) any custom development, configuration, or professional services, including but not limited to data conversion, integration, or training; (c) support or services related to Customer Systems, third-party hardware or software (other than hardware covered by a purchased maintenance plan under an Order Form), or connectivity; (d) any services required as a result of misuse, accident, negligence, modification, or damage caused by Customer, its personnel, or third parties; or (e) consumables, supplies, or peripheral equipment (such as paper, ink, or cabling).
9.3 Version Support. Neumo shall provide Maintenance Services only for the then-current release of the Services and for the immediately preceding release for a period of twelve (12) months following its replacement. Neumo shall have no obligation to maintain or support obsolete or retired versions of the Services.
9.4 Hardware Risk Acknowledgement. Customer acknowledges that hardware maintenance involves inherent risks, including delays in sourcing replacement parts and reliance on third-party manufacturers. Neumo shall not be liable for delays, unavailability of parts, or manufacturer defects, and Customer’s sole and exclusive remedy for hardware issues shall be repair or replacement as described in Section 9.1(b).
9.5 Relationship to Support Services. Maintenance Services are separate from Support Services provided hereunder. Support Services consist of technical assistance, troubleshooting, and response to reported errors. Maintenance Services consist of Neumo’s ongoing updates, upgrades, compliance modifications, and (if applicable) limited hardware repair or replacement.
9.6 Supplies and Tangible Deliverables. In the event Neumo sells or provides Customer with tangible goods, printed materials, forms, envelopes, consumables, or other physical deliverables (“Supplies”) in connection with the Services. Except as otherwise stated in the applicable Order Form or Exhibit:
(a) Shipment and Risk of Loss. Supplies shall be shipped F.O.B. Destination, and risk of loss shall pass to Customer upon delivery. Customer shall inspect all Supplies within five (5) business days after delivery and shall notify Neumo in writing of any shortage or nonconformity; failure to do so constitutes acceptance.
(b) Limited Warranty. Neumo warrants that Supplies will be free from material defects in workmanship and materials for thirty (30) days after delivery. Customer’s exclusive remedy and Neumo’s entire obligation for any breach of this warranty shall be replacement of the defective Supplies or refund of the purchase price, at Neumo’s option. EXCEPT AS EXPRESSLY PROVIDED, SUPPLIES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(c) Returns. No Supplies may be returned without Neumo’s prior written authorization. Authorized returns must be received within thirty (30) days of delivery and in resalable condition. Customer bears the cost of return shipping unless the Supplies are defective.
(d) Limitation of Liability. Neumo’s total liability for any claim relating to Supplies shall not exceed the amount paid by Customer for the specific shipment giving rise to such claim.
(e) Cancellations. Once accepted by Neumo, orders for Supplies may not be cancelled or modified without Neumo’s prior written consent. Customer shall reimburse Neumo for all costs incurred and commitments made prior to cancellation.
10. ON-PREMISES SOFTWARE LICENSE
10.1 License Grant. Where Neumo provides software for installation and operation within Customer’s environment (“On-Premises Software”), Neumo grants Customer a limited, non-exclusive, non-transferable, perpetual (unless otherwise stated) license to use the On-Premises Software, in object-code form only, for Customer’s internal governmental operations and solely at the locations and in accordance with the license parameters specified in the applicable Order Form.
10.2 Restrictions. Customer shall not (a) copy the On-Premises Software except for two (2) archival copies; (b) modify, translate, reverse engineer, decompile, disassemble, or create derivative works thereof; (c) disclose benchmark results; (d) remove or alter proprietary notices; or (e) use the On-Premises Software for third-party processing, timesharing, or service bureau purposes.
10.3 Operating Environment. Customer shall supply and maintain all hardware, operating systems, databases, and network infrastructure meeting Neumo’s published specifications. Neumo shall not be responsible for performance deficiencies caused by Customer’s environment.
10.4 Third-Party Components. The On-Premises Software may include third-party runtime or middleware components licensed to Neumo. Customer shall comply with all associated third-party license terms and acknowledges that such components are provided “as is.”
10.5 Maintenance and Support. Maintenance and Support for On-Premises Software shall include periodic updates and technical support for the then-current release only. Neumo shall have no obligation to support versions superseded by more than one release.
10.6 Audit Rights. Neumo may audit Customer’s use of the On-Premises Software to verify compliance with license parameters and may inspect Customer’s facilities upon reasonable notice during normal business hours.
10.7 Termination. Upon termination of the license, Customer shall immediately cease all use and return or destroy all copies of the On-Premises Software and certify destruction upon request.
11. CONFIDENTIALITY
11.1 Definition of Confidential Information. In connection with the Agreement, each Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”) information about its business affairs, products, services, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, in any form, whether oral, written, electronic, or other, and whether or not marked or designated as “confidential” (“Confidential Information”). Without limiting the foregoing, (a) all Neumo Materials, including the financial terms and existence of the Agreement, are the Confidential Information of Neumo, and (b) all Customer Data is the Confidential Information of Customer. Confidential Information does not include information that the Receiving Party can demonstrate by written records: (a) was already rightfully known to the Receiving Party without restriction on use or disclosure before receipt from the Disclosing Party; (b) was or becomes generally known to the public other than by breach of the Agreement by the Receiving Party; (c) was or is received by the Receiving Party on a non-confidential basis from a third party not under an obligation of confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
11.2 Open Records Laws. Neumo acknowledges that Customer may be subject to state or local public records, open government, or freedom of information laws (“Open Records Laws”) that may require disclosure of certain documents or information. Nothing in the Agreement shall be construed to restrict Customer’s obligations under such laws. If Customer receives a request that may require disclosure of Neumo’s Confidential Information, Customer shall provide Neumo with prior notice of such request to the extent permitted by law, and shall cooperate with Neumo, at Neumo’s expense, to seek confidential treatment of such information.
11.3 Protection of Confidential Information. Subject to Open Records Laws, the Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own information of like importance, but in no event less than a reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than as necessary to perform its obligations or exercise its rights under the Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know such Confidential Information for the Receiving Party to perform its obligations or exercise its rights under the Agreement and who are bound by confidentiality obligations no less restrictive than those set forth herein.
11.4 Compelled Disclosure. If the Receiving Party is required by applicable law, regulation, or legal process to disclose any Confidential Information, it shall provide the Disclosing Party with prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost, a protective order or other remedy. If the Disclosing Party waives compliance or fails to obtain such protective order, the Receiving Party may disclose only that portion of the Confidential Information that it is legally required to disclose.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Neumo Ownership. As between the Parties, Neumo owns and retains all right, title, and interest, including all intellectual property rights, in and to the Services, Neumo Materials, Neumo Systems, Resultant Data, Aggregated Statistics, Documentation, and any modifications, enhancements, improvements, or derivative works thereof.
12.2 Customer Data. As between the Parties, Customer owns and retains all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer grants to Neumo a limited, non-exclusive, royalty-free, worldwide license to use, host, process, copy, display, and transmit Customer Data solely as necessary to provide the Services and perform Neumo’s obligations under the Agreement.
12.3 Aggregated Statistics and Resultant Data. Notwithstanding anything to the contrary, Neumo may monitor Customer’s use of the Services and collect, compile, and use Aggregated Statistics and Resultant Data for its lawful business purposes, including for improving the Services and developing new products or services, provided that such data does not identify Customer or any individual. Neumo shall own all right, title, and interest in and to Aggregated Statistics and Resultant Data.
12.4 Feedback. If Customer or any Authorized User provides any feedback, suggestions, ideas, enhancement requests, recommendations, or other information regarding the Services (“Feedback”), Customer hereby assigns to Neumo all right, title, and interest in and to such Feedback, including all related intellectual property rights. Neumo may use Feedback without restriction or obligation of any kind.
12.5 Residuals. Neumo shall be free to use for any purpose the general ideas, concepts, know-how, techniques, and skills retained in the unaided memory of its personnel who have had access to Customer’s Confidential Information in the course of providing the Services, provided that Neumo does not disclose or use Customer’s Confidential Information itself.
12.6 Customer Marks. Customer grants Neumo a non-exclusive, royalty-free license to use Customer’s name, trademarks, and logos (“Customer Marks”) solely for the purpose of providing the Services and for Neumo’s reasonable marketing, sales, and reference purposes, subject to Customer’s standard trademark usage guidelines.
13. REPRESENTATIONS AND WARRANTIES
13.1 Mutual Representations. Each Party represents and warrants to the other that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; (b) it has full corporate or governmental power and authority to enter into the Agreement, to perform its obligations hereunder, and to grant the rights granted by it under the Agreement; (c) the execution of the Agreement by its representative whose signature is set forth on the applicable Order Form has been duly authorized by all necessary corporate or governmental action; and (d) the Agreement constitutes the legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms.
13.2 Neumo Warranties. Neumo represents and warrants that: (a) it shall perform the Services in a professional and workmanlike manner consistent with generally recognized industry standards; (b) the Services will materially conform to the Specifications described in the applicable Order Form and Documentation; and (c) it will implement and maintain the information security safeguards described in Section 6.
13.3 Customer Warranties. Customer represents and warrants that: (a) it owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data such that, as processed by Neumo in accordance with the Agreement, such Customer Data does not and will not infringe, misappropriate, or otherwise violate any intellectual property right, privacy right, or other right of any third party, or violate any applicable law; (b) it shall comply with all applicable laws, rules, and regulations in connection with its use of the Services; and (c) it has obtained all necessary approvals and consents required under applicable law to authorize its execution and performance of the Agreement.
13.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE TOU, ALL SERVICES AND NEUMO MATERIALS ARE PROVIDED “AS IS” AND NEUMO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NEUMO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEUMO DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.
14. INDEMNIFICATION
14.1 Neumo Indemnification. Neumo shall indemnify, defend, and hold harmless Customer, its officers, directors, employees, and agents from and against any and all damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of any claim by a third party alleging that the Services, when used by Customer in accordance with the Agreement, infringe or misappropriate such third party’s United States intellectual property rights. This obligation does not apply to claims arising out of: (a) Customer Data or Third-Party Materials; (b) use of the Services in combination with other products or services not provided by Neumo; (c) modifications to the Services made by Customer or a third party; or (d) use of the Services in a manner not authorized by the Agreement.
14.2 Procedures. Customer shall promptly notify Neumo of any claim, permit the Neumo to control the defense and settlement, and cooperate as reasonably requested. Neumo shall not settle any claim without Customer’s prior written consent if such settlement admits liability or imposes obligations on Customer.
14.3 Sole Remedy. This Section 14 sets forth the indemnified Party’s sole and exclusive remedy and the indemnifying Party’s entire liability and obligation for any claims of intellectual property infringement.
15. EXCLUSION OF CERTAIN TYPES OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NEUMO OR ITS AFFILIATES OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, OR LOSS OF GOODWILL, ARISING OUT OF OR RELATING TO THE TOU OR THE SERVICES, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF NEUMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. INSURANCE. Neumo shall maintain, at its own expense, during the Term of the Agreement and for a period of one (1) year thereafter, insurance policies with coverage amounts customary for companies of its size and industry, and no less than the following: (a) Commercial General Liability Insurance with limits of at least $2,000,000 per occurrence; (b) Automobile Liability Insurance with limits of at least $1,000,000 per occurrence; (c) Workers’ Compensation Insurance as required by applicable law; and (d) Technology Errors and Omissions and Cyber Liability Insurance with limits of at least $5,000,000 per claim and in the aggregate. Neumo shall, upon request, provide Customer with certificates of insurance evidencing such coverage. In addition, to the extent Customer provides Neumo with written insurance requirements applicable to contractors or vendors similarly situated, Neumo shall use commercially reasonable efforts to comply with such requirements.
17. TERM AND TERMINATION
17.1 Term. The term of the Agreement shall commence on the Effective Date of the first Order Form accepted by Customer and shall continue until terminated in accordance with this Section. Each Order Form shall specify its subscription term (“Subscription Term”).
17.2 Termination for Convenience. Customer may, upon at least thirty (30) days’ prior written notice, elect to discontinue (in whole or in part) any Services that are not Subscription Services and that are identified in an Order Form as Professional Services, or other non-recurring or non-subscription Service components. Any such discontinuation shall be effective as of the end of the applicable notice period and shall not affect Customer’s obligations with respect to (a) Fees accrued or committed prior to the effective date of discontinuation, or (b) any continuing or recurring Services not identified in the discontinuation notice.
17.3 Termination for Cause. Either Party may terminate the Agreement or an Order Form immediately upon written notice if the other Party materially breaches the Agreement and such breach is not cured within thirty (30) days after receipt of written notice describing the breach.
17.4 Termination for Nonpayment. Neumo may terminate the Agreement or any Order Form immediately if Customer fails to pay any amount due under the Agreement and such failure continues for ten (10) days after written notice of nonpayment.
17.5 Termination for Insolvency. Either Party may terminate the Agreement immediately upon written notice if the other Party (a) becomes insolvent or unable to pay its debts when due; (b) files or has filed against it a petition in bankruptcy or similar proceeding; or (c) ceases to carry on its business in the ordinary course.
17.6 Fiscal Funding Out. Customer may terminate the Agreement or any Order Form without penalty if funds are not appropriated or otherwise made available to pay the Fees. Customer shall provide at least ninety (90) days’ written notice and shall remain responsible for Fees accrued prior to the effective date of termination.
17.7 Effect of Termination. Upon expiration or termination of the Agreement: (a) all rights granted to Customer hereunder shall immediately terminate; (b) Customer shall cease all use of the Services and Neumo Materials; (c) Neumo shall cease use of Customer Data and return or securely destroy such data, except that Neumo may retain archival copies as required by law or for legitimate business continuity purposes; and (d) each Party shall return or destroy all Confidential Information of the other Party, subject to legal retention requirements.
17.8 Survival. The provisions of the TOU that, by their nature, are intended to survive expiration or termination shall survive, including without limitation provisions relating to accrued payment obligations, confidentiality, data security, intellectual property rights, disclaimers, indemnification, limitations of liability, governing law, and dispute resolution. Without limiting the foregoing, the following Sections shall expressly survive expiration or termination of the TOU: Section 1 (Definitions), Section 5 (Fees and Payment), Section 6 (Security), Section 10.7 (Termination), Section 11 (Confidentiality), Section 12 (Intellectual Property Rights), Section 13 (Representations and Warranties), Section 14 (Indemnification), Section 15 (Exclusion of Certain Types of Damages), Section 17.7 (Effect of Termination), Section 17.8 (Survival), and Section 18.
18. MISCELLANEOUS
18.1 Entire Agreement. The TOU, together with all Order Forms accepted by Customer, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, and representations.
18.2 Order of Precedence. In the event of a conflict between these Terms of Use and an Order Form, the Order Form shall control with respect to Fees, scope of Services, and commercial terms, and these Terms of Use shall control with respect to all other terms.
18.3 Notices. All notices required or permitted hereunder shall be in writing and delivered personally, by nationally recognized overnight courier, by certified mail, or by email with confirmation of transmission, to the addresses set forth in the applicable Order Form or to such other address as a Party may designate.
18.4 Assignment. Neither Party may assign or otherwise transfer the Agreement, in whole or in part, without the prior written consent of the other Party; provided, however, that Neumo may assign the Agreement without Customer’s consent in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of its assets, change of control, or to an affiliate capable of performing Neumo’s obligations under the Agreement. Any attempted assignment in violation of this Section shall be void. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
18.5 Governing Law. The Agreement shall be governed by and construed under the laws of the state in which Customer is located, without regard to conflict of laws rules.
18.6 Force Majeure. Neither Party shall be liable for delays or failures caused by events beyond its reasonable control, including acts of God, natural disasters, acts of terrorism, labor disputes, government actions, or failures of internet or telecommunications services.
18.7 Export Compliance. Customer shall comply with all applicable export control and trade sanctions laws and shall not export or re-export any Services or Neumo Materials in violation of such laws.
18.8 Independent Contractors. The Parties are independent contractors. Nothing in the Agreement shall be construed to create any partnership, joint venture, agency, or fiduciary relationship between the Parties.
18.9 Severability. If any provision of the Agreement is determined invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect.
18.10 Waiver. No waiver of any right or remedy under the Agreement shall be effective unless in writing. No waiver shall constitute a continuing waiver unless expressly stated.
18.11 Acceptance of Order Forms. Customer’s acceptance of an Order Form shall constitute acceptance of “the Agreement.” Acceptance may occur by (a) executing the Order Form, (b) issuing a purchase order or other written confirmation referencing the Order Form, (c) obtaining the Services through an authorized reseller, purchasing agent, or procurement cooperative, or (d) accessing or using the Services. Any such action by Customer shall be deemed conclusive evidence of Customer’s agreement to be bound by the terms of the applicable Order Form and Agreement.
18.12 Governmental Powers. It is understood and agreed that by execution of the Agreement, Customer does not waive or surrender any of its governmental powers.
18.13 Interlocal Purchasing Consent; Cooperative Purchasing. With the prior approval of Neumo, which may be withheld for any or no reason within Neumo’s sole discretion, the Agreement may be extended to any public entity in Customer’s “home-state” to purchase at an Order Form’s prices and specifications in accordance with the terms stated in the Agreement. Additionally, to the extent permitted by law, the terms of the Agreement may be extended for use by other local government entities upon execution of a separate agreement, proposal, or other duly signed writing by and between Neumo and such entity, setting forth all of the terms and conditions for such use, including applicable fees and billing terms.
18.14 Third-Party Software. The Services may incorporate or require the use of third-party commercial off-the-shelf software, open-source components, or other products subject to separate license terms (“Third-Party Software”). Rights to use such Third-Party Software are governed solely by the applicable license agreements provided by the relevant third-party vendors, and Customer agrees to comply with those license terms. Customer’s acceptance or use of any Third-Party Software shall constitute acceptance of its license terms. If Customer requests Neumo to install, configure, or enable any Third-Party Software that includes “shrink-wrap,” “click-wrap,” or similar electronic acceptance terms, Customer hereby authorizes Neumo to accept such terms on Customer’s behalf solely for purposes of installation or activation. Neumo makes no representations or warranties regarding Third-Party Software and disclaims all liability arising from such software except to the extent expressly provided in the Agreement.
18.15 No Gratuities; Ethical Conduct. Customer shall not, and shall cause its personnel and representatives not to, offer, give, or provide any gift, gratuity, commission, or other thing of value to any employee, officer, or representative of Neumo in connection with the Agreement, other than items of nominal value customarily used for advertising or public-relations purposes. Any violation of this Section 18.15. constitutes a material breach of the Agreement. Neumo shall not, and shall cause its personnel not to, offer any such gratuity to Customer’s personnel.
This site uses cookies. By continuing to browse this site, you agree to this use.
