Neon Platform Partner Agreement

Welcome to our Platform Partner Agreement! This Agreement lays out how we work together so that you can use our databases to serve your customers.

Legal terms can be detailed and wordy so here is a summary of our intent:

Ownership: Our database Platform remains under our ownership, while you retain ownership of your product.
Acknowledgment: When incorporating the Neon Platform into your product, a simple “powered by” acknowledgment (in the product or on your website) is all we request to maintain transparency and trust with customers. Of course, we can do much more in co-marketing to developers with you.
Compliance and support: End users of the Bundled Product must agree to our Terms of Service. You are responsible for providing initial support to these end users. We will of course provide you support to ensure a reliable scalable service.
Autonomy: You have the freedom to independently establish the pricing of your product. You pay Neon the agreed fees set out in the Order Form.

We are excited to work with you and bring reliable, scalable Postgres to your customers.

Notice: This is the Neon Platform Agreement applicable to Neon’s Platform Partners. Neon requires a signed Partner Order Form. Please contact our Partnerships team by emailing partnerships@neon.tech.

Last Updated: 15 February 2024

PARTNER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON PARTNER’S BEHALF REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THE PARTNER TO THIS AGREEMENT.

This Neon Platform Agreement (“Agreement”) is entered between Neon Inc., a Delaware company with its registered address at: 209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801 (“Neon”, “we”, “us”) and the partner identified in the applicable Order Form (“Partner”) and is effective as of the date the Order Form is signed (“Effective Date”). By accepting the Order Form in any manner, the Partner accepts this Agreement and other related Contracts. Certain capitalized terms are defined in Annex A “Definitions” and others are defined contextually in this Agreement.

GRANT OF RIGHTS
1. Software License. During the Term, provided that this Agreement has not been terminated by either party and in consideration of the payment of the Fees, the Partner and its Authorised Users may access and use the Platform pursuant and subject to the terms of the outstanding Order Form.
2. Distribution License. Subject to the terms of this Agreement, Neon grants to the Partner a limited, non-exclusive, non-transferable, royalty-free, revocable license to market and sublicense the Bundled Products, provided that the Partner refers to the Bundle Product being powered by Neon as detailed in the Trademark section of this Agreement. Further, Partner shall ensure that all End Users of the Bundled Products agree to comply with the Neon Terms of Service available at www.neon.tech/terms-of-service (“Neon Terms”) and Partner further agrees that, in the event that Partner becomes aware that an End User is violating the Neon Terms, the Partner shall promptly notify Neon. Partner shall cooperate with Neon to enforce the limitations imposed by this Section.
3. Access to the Platform. The Partner will get access to the Platform via the Console as defined in the Documentation, APIs, and third-party driver. The Partner shall ensure that each Authorized User will get access to the Platform via connection strings provided by Neon’s API or the Console. The Partner may provide access to Neon via a connection string in any format the Partner deems appropriate as long as it is compatible with Neon’s latest technical configurations (the “Partner User Access“). The Partner shall be responsible for maintaining the records and associations of the connection strings in the Partner’s environment and systems.
4. Platform Revisions. Neon may from time to time, at its sole discretion, develop and release certain revisions, upgrades and updates for new features, bug fixes and enhancements on the Platform (the “Updates”) available to the Partner for free or at an extra cost. All free Updates will be available automatically without a specific notice sent to the Partner. When Neon introduces paid Updates with greater functionality and/or performance and a higher price than agreed in the Order Form, Neon will notify the Partner before the implementation of the Updates. The Partner will be able to access the paid Updates by paying extra Fees or continue using the Platform without Updates until the new billing cycle/renewal of the Order Form. Partner agrees that the form and nature of the Platform that Neon provides may change without prior notice and that future versions of the Platform may be incompatible with applications developed on previous versions of the Software. Partner agrees that Neon may stop (permanently or temporarily) providing the Platform (or any features within the Platform) to Partner or End Users at Neon’s sole discretion, without prior notice. Neon shall have no obligation to support the Platform or Services or any applications developed by Partner pursuant to this Agreement
5. Beta Releases. Besides access to the Platform as purchased in the effective Order Form, Neon from time to time may make available to the Partner and its Authorized Users certain features, technologies, and services that are not yet generally available, including, but not limited to, any products, services, or features labelled “alpha”, “beta”, “preview”, “pre-release”, or “experimental”, and any related content (each, a “Beta Release”) or access and use of the Platform in regions that are not generally available, including, but not limited to, any regions identified by Neon as “alpha”, “beta”, “preview”, “pre-release”, or “experimental” (each, a “Beta Region”). The Partner and its Authorized Users must comply with all terms related to any Beta Service or Beta Region as posted on the Neon Website or otherwise made available to the Partner and the Authorized Users. Neon may add or modify terms, including lowering or raising any usage limits, related to access to or use of any Beta Services or Beta Regions at any time. Beta Services or Beta Regions may not be covered by Partner support and/or service-level agreements. Neon may change or discontinue Beta Services and Beta Regions at any time without notice. Neon also may choose not to release Beta Services and Beta Regions into general availability. Beta Services and Beta Regions may be inoperable, incomplete or include features that Neon may never release, and their features and performance information are Neon’s IP.
6. Third-Party Products. The Platform may include links to other third-party applications, websites, products and services that could be integrated with Neon’s Services (the “Third-Party Products”). Neon does not endorse any Third-Party Products and is not responsible or liable for the behaviour, features, or content of any Third-Party Products. Neon does not provide Partner with any rights or remedies regarding such Third-Party Products. Neon further makes no express or implied warranties regarding the information, material, products, or services that are contained on or accessible through any Third-Party Products. Any access or use of a Third-Party Product is solely at the Partner’s own risk, directly governed between the Partner and the applicable third-party provider.
SUPPORT
Partner will provide support to End Users for the Bundled Products. If the Partner’s customer support organization reasonably determines that the source of a problem relates to the Platform, Partner’s customer support organization will escalate the problem to Neon’s customer support organization for resolution. If Neon’s customer support organization reasonably determines that the source of the problem is related to a Partner Product, Neon will escalate the problem to the Partner’s customer support organization for resolution. Each party will use its own then-current published customer support response times for applicable plans in fulfilment of its respective obligations herein.
PAYMENT TERMS
1. Fees Basis. The Partner shall pay Neon the Fees as specified in the outstanding Order Form.
2. Payment of Fees. The Partner will be invoiced the Fees before the commencement of each billing cycle unless otherwise specified in the Order Form. The Partner will pay the Fees in U.S. dollars within thirty (30) calendar days from the receipt of a Neon invoice unless otherwise set forth in the Order Form.
3. Independent Pricing. Partner will independently establish the fees for the Bundled Products.
4. Disputable Amounts. If the Partner reasonably disputes any amount invoiced by Neon, the Partner shall pay the amount of the invoice when due and provide Neon with written notice stating the nature of the dispute prior to or on invoice’s due date. The Partner and Neon shall use reasonable commercial diligence to resolve disputes in a timely manner. Neon shall continue performing its obligations in accordance with this Agreement during resolution of the dispute. All portions of the disputed amount determined to be owed to the Partner shall be refunded to within ten (10) calendar days of the dispute resolution.
5. Downgrades. Unless otherwise set forth in the Order Form, the Partner shall not be eligible for any refunds or credits during the existing or any future billing cycle if it decides to decrease or not use the Platform’s full functionality and service capacity available per the effective Subscription.
6. Taxes. All the Fees are exclusive of, and the Partner is responsible for, applicable federal or national, state or provincial, or local sales, use, excise, export or other applicable taxes, except for taxes on the net income of Neon. Should any payment for the Services be subject to withholding tax by any government, the Partner will reimburse Neon for said withholding tax in full. Neon may add any such taxes to the applicable Fees.
DATA PROTECTION
1. Privacy Policy. All Transfers of the Partner Data through the Platform not expressly regulated herein shall be governed by the Privacy Policy and Partner Data Processing Agreement, if applicable.
2. Partner Personal Data. Neon will only process the Partner Personal Data in accordance with the terms of this Agreement. Neon will use all commercially reasonable efforts to maintain sufficient administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of the Partner Personal Data. Neon will not cause or permit any Partner Personal Data to which it may have access in connection with this Agreement to be collected or processed in any manner or for any purpose other than the performance of the Services in compliance with this Agreement.
3. Partner’s Authorisation. The Partner (for itself and all of its Authorized Users) grants Neon the right to use Partner Data solely as necessary (a) to provide, maintain, improve, promote, protect and update the Services and the Platform; (b) to prevent or address service, security, support or technical issues related to the Services and the Platform; (c) as required by law or as permitted by the Privacy Policy; or (d) as expressly permitted in writing by the Partner.
4. Sub-processors. The Partner hereby authorizes Neon to engage sub-processors for the purposes of providing the Services. Neon will use all commercially reasonable efforts to ensure that all persons authorized to process Partner Data on behalf of Neon have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
5. Required Disclosure. Notwithstanding the foregoing, Neon may disclose the Partner Data, including any Confidential Information, as required by applicable laws and requirements or regulatory body or governmental authority. Neon shall give the Partner prompt notice, if permitted by applicable law, of any such legal or governmental request. Neon will use all commercially reasonable efforts to cooperate with the Partner in any effort to seek a protective order or otherwise to contest such required disclosure, at the Partner’s expense.
6. EU Data Transfers. The Services may be performed using equipment or facilities located outside the European Union. If Neon transfers the Partner Personal Data to a jurisdiction for which the European Commission has not issued an adequacy decision, Neon will ensure that appropriate safeguards have been implemented for the transfer of the Partner Personal Data within the meaning of Article 46 of the EU Directive 95/46/EC (General Data Protection Regulation) and any other applicable Data Protection Laws.
7. End-User Personal Data and Content. Neon does not knowingly process or collect any Sensitive Information Transferred through the Platform. The Partner shall be responsible for ensuring that any Personal Data relating to its Authorized Users is Transferred through the Platform in compliance with any applicable Data Protection Laws and any applicable Data Processing Agreement. The Partner shall be solely liable for any and all liabilities arising from or relating to Sensitive Information, Authorized Users Personal Data and generated Content Transferred through the Platform. The Partner is responsible for providing any notices and obtaining any consents and approvals required to collect, process, transfer, maintain and use the data collected by Partner in connection with its use of the Products.
8. Data Accuracy. Neon will have no responsibility or liability for any Partner Data Transferred through the Platform, nor for any actions taken by the Partner or the Authorized Users as a result of Partner Data Transfers. Neon shall not bear any liability or responsibility in relation to the accuracy of the Partner Data, nor does Neon endorse any opinion contained in any of the Content Transferred through the Platform.
IP, FEEDBACK
1. Ownership. Each party retains ownership of their respective IP rights. The Partner owns all IP Rights to their Content Transferred through the Platform, while Neon retains ownership of the IP Rights relating to the Platform, including all software, system software, applications, updates, improvements, enhancements, modifications, inventions, content, graphics, media, user interfaces, logos, and trademarks used to provide the Platform. The Agreement grants Neon a limited license to use the Partner’s Content solely for the purpose of providing and improving the Services.
2. License to Use the Platform. During the Term, Neon grants to the Partner a non-exclusive, non-transferable, sub-licensable, revocable, worldwide, royalty-free and conditional on the compliance with this Agreement right to: (a) access the Platform and use the Services in accordance with the terms of this Agreement and the effective Order Form; and (b) use any Documentation associated with the Services to support the Partner’s use of the Services (the “Partner’s License”).
3. Reserved Rights. For the avoidance of doubt, nothing in this Agreement prohibits the Partner’s Authorized Users from purchasing the Products via the Platform and contracting with Neon directly. Neon expressly reserves the right to market the Platform, itself or through any other partner or reseller in any territory to any individuals and legal entities on any terms and conditions determined in Neon’s sole discretion, and the Partner shall not be entitled to any compensation, commission or other rights whatsoever in relation with such marketing or provision of the Services.
4. Bundled Products. Subject to those rights reserved by Neon in and to the Software, Neon agrees that it obtains no right, title or interest from Partner under this Agreement in or to any software applications or Bundled Products developed by Partner hereunder.
5. Trademarks a) Subject to the Partner’s compliance with the Neon Partner Branding and Logos Usage Guidelines as provided to the Partner (the “Guidelines”), Neon grants to the Partner a revocable, nonexclusive, non-sublicensable, non-transferable license to use any Neon logos. No other license to any other Trademark is provided by Neon under this Agreement. Upon Neon’s request, the Partner will provide sample uses of the Neon Partner Logo. Use of the Neon Partner Logo must conform to the Guidelines or such other Neon trademark use requirements that Neon may provide. The partner will not use any Trademark, in whole or in part, as part of any Partner mark, name, logo, and/or domain name. Partner agrees not to register any Trademark (in whole or in part), or any mark confusingly similar to a Trademark. The Partner will not contest the validity of the Neon Partner Logo. The Partner will reasonably cooperate with Neon, at Neon’s expense, in the defence and protection of Neon Logos. The Partner acknowledges the value of the goodwill in the Trademarks, including the Neon Logos, and that Neon is the exclusive beneficiary of such goodwill.
6. Usage Data and Feedback. Neon may generate and use technical logs, data and learnings about Partner’s and its Authorized Users’ use of the Platform, the Partner Data in aggregate, anonymized form (the “Usage Data”) to operate, improve, analyze and support the Platform and/or the Services and for other lawful business purposes. Neon may use the Partner Data without de-identification, aggregation and anonymization only for troubleshooting purposes. If the Partner and/or an Authorized User provides Neon with Feedback regarding the Platform and/or the Services or other Neon’s offerings, Neon may use the Feedback without restriction, obligation or compensation to the Partner or its Authorized Users.
USER’S RESTRICTIONS
1. Acceptable Use. The Partner (and all its Authorized Users) shall use Neon in compliance with all applicable laws, the terms of this Agreement, any related Documentation and the Contracts (as applicable). The Partner’s and/or any Authorized User’s failure to maintain database instances within the support perimeter (as specified in the Documentation) may result in Service failure, for which Neon is not responsible. Any customization, copies, and use of any additional software with the Platform and/or the Services may result in the instance falling outside the support perimeter and causing Service failure for which Neon is not responsible. The Partner (and all of its Authorized Users) is prohibited from: (a) modifying and/or making derivative works of, disassembling, extracting, reverse compiling and/or reverse engineering the source code or any part of the Platform; (b) reselling, offering, selling, renting, leasing, distributing, assigning and/or otherwise commercially exploiting the Services and/or the Platform for any purposes, in whole or in part, except where specifically permitted by Neon; (c) using and/or accessing the Services and/or the Platform in order to build a similar and/or competitive website, platform, product and/or service or for other benchmarking or competitive purposes; (d) framing or otherwise incorporating the Platform or the Services, or any part of Platform, as part of another website or service; (e) removing and/or destroying any copyright notices and/or other proprietary markings contained in the Platform; (f) taking any action that imposes or may impose (as determined by Neon’s sole and absolute discretion) an unreasonable and/or disproportionately large load on Neon’s and/or our third-party providers’ infrastructure; (g) accessing the Platform by any other means than through the Partner User Access; (h) providing Platform passwords or other login information to any third party other than Authorized Users; (j) exceeding any usage allowances and service capacity agreed in the applicable Order Form (l) promoting and/or providing information about illegal activities and/or physical harm and/or injury to any group, individual, institution and/or property; and (m) Transferring through the Platform any Prohibited Content (jointly referred to as the “Prohibited Activities”).
2. Suspension. If Neon discovers or suspects that the Partner or any of its Authorized Users have violated any user restrictions contained in this Section of this Agreement, Neon may, at its sole discretion and without advanced notice, suspend the provision of Services to the Partner and/or block access to the Platform for the offending Authorized User(s). This action is taken without prejudice to any other remedies Neon will be entitled to under any applicable law. This Agreement does not require that Neon take any action against the Partner or any Authorised User or other third party for violating this Section or this Agreement, but Neon is free to take any such action it sees fit. Where practicable, Neon will use reasonable efforts to provide the Partner with prior notice of the suspension or blockage. Once the Partner resolves the issue requiring suspension or blockage, Neon will promptly restore the Partner’s access to the Platform in accordance with this Agreement.
3. Users & Platform Access. The Partner shall control the Authorized Users’ access to the Platform and is responsible for their use of the Services in accordance with this Agreement and any applicable laws, including, without limitation, any Authorised User’s conduct that would violate the provisions of Section 5.1 hereof. Any breach of this Agreement caused by an Authorized User when accessing the Platform and/or using the Services will be deemed as a breach by the Partner itself.
4. Unauthorized Access. The Partner shall take all commercially reasonable efforts to prevent unauthorized access to the Platform. The Partner shall notify Neon immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop such unauthorized use.
CONFIDENTIALITY
1. Confidential Information. Definition. “Confidential Information” means (a) terms and conditions of this Agreement, the Order Form and any technical or performance information about the Services that is not publicly available; (b) any carve-outs from this Agreement agreed between Neon and the Partner in writing; (c) any Partner Data that is not publicly available; (d) any other information relating a party that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure (and, in the case of oral disclosures, summarized in writing within five (5) calendar days of the initial disclosure and delivered to the receiving party), or that due to the nature of the information the receiving party would clearly understand it to be confidential information of the disclosing party.
2. Exclusions. Confidential Information shall not include any information that: (a) was or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) was rightfully in the receiving party’s possession at the time of disclosure without restriction on use or disclosure; (c) was independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) was rightfully obtained by the receiving party from a third party not under a duty of confidentiality and without restriction of use or disclosure. For the avoidance of doubt, the fact the Partner uses Neon Services shall not be treated as confidential.
3. Restricted Use and Non-disclosure. During and after the Term, the party receiving Confidential Information will: (a) use the Confidential Information of the other party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its directors, officers, representatives, investors, attorneys, consultants, sub-contractors and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature
4. Injunction. Each party agrees that breach of this Section 6 would cause a Disclosing Party substantial harm, for which monetary damages would not provide adequate compensation, and that in addition to any other available remedy, a disclosing party will be entitled to appropriate equitable relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
5. Termination & Return. Upon termination of this Agreement or at any time upon written request of the disclosing party, the receiving party shall return all copies of Confidential Information to the disclosing party or certify, in writing, the destruction thereof.
REPRESENTATIONS & WARRANTIES
1. From Both Parties. Each party represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no other legally binding contract, document or instrument, no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform its obligations as required by this Agreement; (b) it is a corporation or another entity authorized to do business pursuant to the applicable law; (c) this Agreement is signed by a duly authorized person who has the legal capacity to execute and deliver this Agreement.
2. Limited Remedies. In the event of a breach of the warranty in Section 7.3, Neon, at its own option and expense, will promptly take the following actions as might be needed: (a) secure for Partner the right to continue using the Platform; (b) replace or modify the Platform to make it non-infringing, thus terminating the infringing features of the Platform; (c) replace the Platform’s features in question with software features of substantially similar functionality; or (d) if such attempts do not succeed, refund to the Partner any prepaid Fees under the Order Form, in proportion to the balance of the Term left after such termination. In conjunction with the Partner’s rights to terminate for breach, where applicable, the preceding sentence states Neon’s sole obligation and liability, and the Partner’s sole remedy for breach of any warranty in Section 7.2.
3. From Neon. Neon represents and warrants that it is the owner of the Platform and of each and every proprietary component thereof, or the recipient of a valid licence thereto, and that it has and will maintain the full power and authority to grant the rights to use the Platform to the Partner and its Authorized Users.
4. From the Partner. The Partner represents and warrants that it will comply with acceptable use requirements set forth in this Agreement and any technical restrictions set forth in the Contracts and the Documentation.
DISCLAIMERS
1. Except as expressly provided for in Section 7.2. herein, the Platform, the Services and all related components and information are provided on an “as is” and “as available” basis without any warranties of any kind, and Neon expressly disclaims any and all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a particular purpose, course of performance, and non-infringement. Without limiting the generality of the foregoing, and save as otherwise set out in section 7.2(b), Neon does not represent or warrant that the Platform and/or the Services will be uninterrupted, timely, secure from hacking or other unauthorized intrusion, or error-free.
2. Neon provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Platform’s features or functionality made by anyone other than Neon, unless Neon approves such modification in writing; or (b) use of the Platform in combination with any operating system not authorized in the Documentation or with hardware or software specifically forbidden by the Documentation.
3. Without limiting any disclaimers in the Agreement or the respective Order Form, Beta Services and Beta Regions are not ready for general commercial release and may contain bugs, errors, defects, or harmful components. Accordingly, and notwithstanding anything to the contrary in the Agreement or the respective Order Form, Neon will provide Beta Services and Beta Regions to the Partner and the Authorized Users “as is.” Neon shall make no representations or warranties of any kind, whether express, implied, statutory, or otherwise regarding Beta Services and Beta Regions, including any warranty that the Beta Services and Beta Regions will become generally available, be uninterrupted, error-free, or free of harmful components, or that any content, including the Partner Content, will be secure or not otherwise lost or damaged. Except to the extent prohibited by law, Neon disclaims all warranties, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, and any warranties arising out of any course of dealing or usage of trade. Neon’s aggregate liability for any Beta Services and Beta Regions will be limited to the amount of ten US dollars (US$10).
INDEMNIFICATIONS
1. Neon’s Indemnity. Neon shall defend and indemnify the Partner and the Partner’s Associates (as defined below) against any and all third-party claims, suits, or proceedings arising out of or resulting from (a) any allegation that access to the Platform and/or use of the Services infringes or misappropriates a third party’s IP rights, (b) any disclosure or exposure of Personal Data or other Partner’s Confidential Information in violation of any applicable Data Protection Laws caused by the act or omission of Neon or any of its agents, contractors, or employees; (c) any wilful misconduct of Neon in performing the Services that caused losses or damages to the Partner (the “Indemnified Claim”). The “Partner’s Associates” means the Partner, its Affiliates, and their respective officers, directors, employees, successors, and assigns. Neon’s obligations set forth in this Section do not apply to the extent that an Indemnified Claim arises out of: (a) Partner’s breach of this Agreement; (b) revisions to the Platform made without Neon’s written consent; (c) use of the Platform in combination with integrated products, hardware or software not provided by Neon; (d) the allegation that does not state with specificity that the Services are the basis of the Indemnified Claim; (e) the Partner’s failure to incorporate Updates that would have avoided the alleged infringement, provided such Updates are offered without extra charges in addition to the Fees set forth in the Order Form.
2. Partner’s Indemnity. The Partner shall defend and indemnify Neon and the Neon Associates (as defined below) against any and all third-party claims, suits, or proceedings arising out of or resulting from (a) the Transfer of the Prohibited Content through the Platform, (b) any disclosure or exposure of Personal Data or other Partner’s Confidential Information in violation of applicable Data Protection Laws caused by the act or omission of the Partner or any of its Authorised Users, (c) any wilful act or omission of the Partner or its Authorised Users while using the Services that causes losses or damages to Neon. “Neon’s Associates” means Neon, its Affiliates, and their respective officers, directors, employees, successors, and assigns. agrees to indemnify, hold harmless, and defend Neon from and against any claims or lawsuits, including attorneys’ fees, that arise or result from the use or distribution of the Bundled Products.
3. Indemnified Claims’ Procedure. The obligations of each party in the capacity of the indemnifying party within the meaning of Section 9.1 and 9.2 respectively are subject to the following: (i) the indemnified party shall provide the indemnifying party with prompt written notice of the third party claim or action; (ii) the indemnifying party shall have the option of assuming control over the defense and/or settlement of such claim; (iii) the indemnified party shall cooperate with the indemnifying party as reasonably requested; provided, however, that such cooperation is at the indemnifying party’s sole cost and expense; and (iv) the indemnifying party shall not settle any claim or action on behalf of the indemnified party without first notifying the indemnified party of all details related to such settlement, and receiving the indemnified party’s prior written consent not to be unreasonably withheld, provided that the indemnified party will have the absolute right to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
LIMITATIONS OF LIABILITY
1. Exclusion of Consequential Damages. In no event will a party be liable to the other party for any consequential, indirect, special, incidental, punitive damages as well as any direct damages in the form of lost profits arising out of or related to this Agreement, even if the party knew or should have known that such damages were possible and even if direct damages are not a satisfactory remedy.
2. Dollar Cap. Unless otherwise stated in this Agreement, each party’s maximum aggregate liability to the other party for damages of any kind that the other party suffers in connection with this Agreement is limited to the amount of the Fees paid by the Partner to Neon in the twelve (12) month period immediately preceding the date of the last event giving rise to the liability. These limitations are independent from all other provisions of this Agreement and shall apply whether an action is in contract or tort and regardless of the theory of liability, notwithstanding the failure of any remedy provided herein.
3. Specific Exemptions. Neon shall have no liability or responsibility for (a) legitimacy and/or accuracy of the Partner Data, IP rights claims related to, or arising from, the Content; (b) any Transfers of Sensitive Information; (c) any scheduled or unscheduled downtime or unavailability of the Platform and/or the Services because of Force Majeure; (d) for any claims arising from incorrect Partner User Accesses, unauthorized access to the Platform due to the Partner’s or the Authorized Users gross negligence or wilful misconduct or failure of the Partner to provide Authorized User Accesses in compliance with Neon’s technical requirements; or (e) suspension of the Partner’s and of its Authorized Users access to the Platform for cause and termination of this Agreement for any of the reasons set forth in Section “Termination for Cause”.
4. Clarifications. The liabilities limited by this Section apply: (a) to liability for negligence; (b) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (c) even if the party is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (d) even if the remedies fail of their essential purposes. If applicable law limits the application of the provisions of this Section, the indemnifying party’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, a party’s liability limits and other rights set forth in this Section apply likewise to that party’s associates (either Neon’s Associates or Partner’s Associates).
OPEN SOURCE
If Partner uses open source software or any other third party software not supplied by Neon in conjunction with the Bundle Product, Partner must ensure that its use does not: (a) create, or purport to create, obligations of use with respect to the Platform; or (b) grant, or purport to grant, to any third party any rights to or immunities under Neon’s intellectual property or proprietary rights in the Platform.
AUDIT RIGHTS
You will keep accurate and complete records relating to your activities under this Agreement, including records related to your and your customers’ installation and use of the Products and other information necessary to demonstrate your compliance with this Agreement, e.g., any deployment information generated by the Products (“Records”). Within ten (10) days following our written request, you will certify to us in writing, signed by an officer of your company, that your installation and use of the Products comply with the terms of this Agreement and will provide us any Records we specify in such request. In addition, within ten (10) days following our written request, we may audit your Records and your installation and use of the Products at your applicable facility during normal business hours and subject to your reasonable facility security requirements.
TERM AND TERMINATION
1. Term. The term of this Agreement shall commence on the Effective Date indicated in the applicable Order Form and continue for the Subscription period indicated in the outstanding Order Form (the “Term”). Thereafter, this Agreement will be automatically renewed on the same terms set out in the Order Form unless a new Order Form is agreed between the parties.
2. Termination for Cause. Either Party may terminate this Agreement or the Order Form if the other Party: (i) fails to cure any material breach of this Agreement within fourteen (14) calendar days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding.
3. Effects of Termination. Upon termination of this Agreement, the Partner and its Authorized Users shall have no access to the Platform and the Services unless the Partner shall continue to provide Partner User Accesses to their end users; in this case, the Authorized Users shall have the right to access the Platform and use the Services under any Free Tier pricing plan available on the Website by then. Upon Neon’s written request, the Partner shall cease all use of the Services and delete, destroy, or erase any Confidential Information in its possession or control. Upon the Partner’s request, Neon shall delete, destroy, or erase all the Partner Data, including any Personal Data and Confidential Information, in its possession or control, unless storage of such information is required under the applicable laws. Neon shall not be liable for any loss of the Content by the Partner and its Authorized Users in case of termination of this Agreement.
MISCELLANEOUS
1. Affiliates’ Orders. An Affiliate of the Partner may enter its own Order(s) as mutually agreed with Neon. This creates a separate agreement between the Affiliate and Neon incorporating this Agreement with the Affiliate treated as “Partner”. Neither Partner nor any Partner’s Affiliate shall have any rights under each other’s agreement and/or the Order Form with Neon unless explicitly set forth herein, and breach or termination of any such agreement and/or the Order Form is not breach or termination under any other Affiliate’s applicable documents.
2. Amendment. This Agreement may not be amended except by a written agreement by authorized representatives of each party.
3. Sub-contractors. Neon may use sub-contractors to provide Services to Partner under this Agreement, so long as Neon (a) requires such sub-contractors to comply with applicable Data Protection Laws, confidentiality obligations and other terms of this Agreement as though they were parties hereto, and (b) remains fully responsible for the performance or non-performance by any sub-contractors to the same extent as if Neon itself performed or failed to perform.
4. Technology Export. The Partner shall comply with all relevant U.S. and foreign export and import laws in using the Services. The Partner (a) represents and warrants that either the Partner or its Authorized Users are not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access the Platform or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (c) will not Transfer through the Platform any information controlled under the U.S. International Traffic in Arms Regulations.
5. Partner’s Business Practices. The Partner shall (a) comply with all applicable laws and regulations, including all anti-bribery laws, (b) avoid deceptive, misleading or unethical practices, and (c) conduct business in a manner that reflects favorably at all times on Neon and Neon’s goodwill and reputation.
6. FCPA and Related Matters. You and your subcontractors will comply with all applicable anti-mafia, anti-bribery and anti-corruption statutes, rules or regulations of any national, federal, state or local jurisdiction, including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the U.K. Bribery Act of 2010 (in force on July 1, 2011).
7. Notices. Any notice given pursuant to this Agreement shall be in writing and may be effectively given if sent in electronic format to each party’s address indicated in the applicable Order Form. Either party may change its notice address by delivery of the proper notice to the other Party.
8. Force Majeure. Except for payment obligations, neither party will be liable by reason of any failure or delay in the performance of any obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, cyber-attacks, malware attacks, a failure by a third-party hosting provider or utility provider, riots, fires, pandemics, acts of God, war, strikes, terrorism, and governmental action (the “Force Majeure”). Either party may terminate this Agreement within five (5) calendar days of a Force Majeure event. In this case, the Partner will have the right to claim a refund of the prepaid but unused Services.
9. Assignment & Successors. A party may not assign this Agreement or any of its rights or obligations hereunder without the other party’s express written consent except to (a) such party’s Affiliate or (b) a party that acquires all or substantially all of such party’s assets as part of a corporate merger or acquisition or corporate restructuring. Except to the extent forbidden in this Section this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns. Any purported assignment, delegation or transfer in violation of this Section is void.
10. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause or section of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
11. Survival. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of the Partner to pay the Fees (unless the termination is by the Partner for cause); (b) Section 4 “IP & Feedback”, Section 6 “Confidential Information”, Section 7 “Representations and Warranties”, Section 8 “Disclaimers”, Section 9 “Indemnification”, Section 10 “Limitation of Liability”, Section 13 “Miscellaneous” and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
13. Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Delaware, without reference to: (a) any conflicts of law principles that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties’ consent to the personal and exclusive jurisdiction of the Chancery Court of the State of Delaware.
14. Conflicts. This Agreement, together with all the Order Forms, annexes, schedules and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Order Forms or Contracts, the following order of precedence shall govern: (a) first, the effective then Order Form; (b) second, this Agreement with all the annexes and schedules; and (c) third, the effective then Contracts. For the avoidance of doubt, any Partner purchase orders or business forms, requests for proposal (quotation), supplier/vendor forms and questionnaires will not amend or modify this Agreement and are expressly rejected by Neon; any of these Partner’s documents are for administrative purposes only and have no legal effect.
15. Headings. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
16. Independent Contractors. This agreement does not create an agency, partnership, or joint venture. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
17. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

ANNEX A “Definitions”

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorized User” means an individual that directly or indirectly through another user Account, including Partner’s end-users, employee, business partners, contractors, affiliates, representatives or whosoever the Partner granted permission to access the Platform and/or use the Services under the Partner’s account subject to this Agreement and the Order Form. For the avoidance of doubt, the term “Authorized User” does not include individuals or entities when they access the Platform and/or use the Services under their own accounts at the Platform, rather than via Partner User Accesses.

“Bundle Products” means the Platform which is combined with the Partner product, such that together they comprise a single unique software that is being provided by Partner to an End User.

“Confidential Information” has the meaning ascribed to it in Section 7 hereof.

“Content” means information, including but not limited to, measurable data units, source code, files, folders, texts, design layouts, pictures, video and other images, audio materials, graphics, document or data files, messages and other communications, personalization settings and other information and/or content, which is or may be Transferred through the Platform by the Partner or the Authorized Users, including the Content generated by any Authorized User’s end-users, and any computational results that the Partner or any Authorized User may derive from the foregoing through their use of the Services.

“Contracts” means the Neon Terms of Service and Neon Privacy Policy.

“Partner” means a legal person that has accepted this Agreement and purchased a subscription for Neon’s enterprise plan.

“Partner Data” means jointly the Content, the Partner Personal Data as well as any other information that the Partner and/or its Authorized Users Transfers to Neon in connection with the use of the Services.

“Order Form” means an outstanding and effective document specifying details of the Partner’s Subscription. Each Order Form executed by the Partner and Neon will be deemed an integral part of this Agreement.

“Partner Personal Data” means Personal Data that Neon processes as a data processor for the Partner for the purpose of providing the Services. The Partner Personal Data includes Personal Data that the Partner and/or any Authorized User Transfers through the Platform in connection with its use of the Services.

“Data Protection Laws” means all laws and regulations, including laws and regulations of the United States of America, the European Union (the “EU”), the European Economic Area (the “EEA”) and their member states, Switzerland and the United Kingdom, applicable to the Processing of Partner Personal Data for the purposes of the Services.

“Documentation” means Neon’s documentation related to use of the Platform and the Services, posted on the Website and provided to the Partner in connection with this Agreement.

“EU Personal Data” means Partner Personal Data that is (a) originating from or located in the EEA, or (b) is Personal Data of EEA data subjects, or any combination of the foregoing.

“Fees” means a payment for using the Platform under the Subscription as agreed between Neon and the Partner in the Order Form and/or any other regular payments for using the Services as agreed herein or specific Order Forms.

“Feedback” means any suggestions, comments, bug reports, feedback, or suggested modifications for the Neon Platform and/or Services from our Partners and Authorized Users or any other person.

“IP Rights” means any right, title and interest in any registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Personal Data” means information about an identified or identifiable natural person that (a) can be used to identify, contact or locate a specific individual; (b) can be combined with other information that can be used to identify, contact or locate a specific individual; or (c) is defined as “personal data” or “personal information” by applicable Data Protection Laws relating to the collection, use, storage or disclosure of information about an identifiable individual.

“Prohibited Content” means any Partner Data (including source code, software, text, images or other information) that: (a) is unlawful and/or promotes unlawful activities; (b) defames, harasses, abuses, threatens or incites violence towards any individual or group; (c) is pornographic, discriminatory and/or otherwise victimizes and/or intimidates an individual and/or group on the basis of religion, gender, sexual orientation, race, ethnicity, age and/or disability; (d) is spam, is machine- or randomly-generated, constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation and/or any form of lottery and/or gambling; (e) contains any Sensitive Information; (f) contains and/or installs any viruses, worms, malware, Trojan horses and/or other content that is designed or intended to disrupt, damage and/or limit the functioning of any software, hardware, and/or telecommunications equipment and/or to damage and/or obtain unauthorized access to any data and/or other information of any third party; (g) infringes upon any IP Rights of any party; (h) impersonates any person or entity, including any of our employees or representatives; and/or (i) violates the privacy of any third party.

“Platform” means Neon’s proprietary cloud computing platform accessible via the Website (including connected APIs, sample code; software libraries; command line tools; proofs of concept; templates and any other proprietary technologies) as made available by Neon to the Partner and its Authorized Users to use the Services from time to time. For the avoidance of doubt, all references to the “Platform” in this Agreement also include the Neon’s Services and excludes any Third-Party Products.

“Privacy Policy” means Neon’s privacy policy, currently posted at Neon’s Website.

“Sensitive Information” means any personal data of a Partner’s end-users and/or any other Partner Data that is subject to heightened security requirements as a result of the Partner’s internal policies or practices or by any law or regulation applicable to the Partner (examples include but are not limited to the U.S. Health Insurance Portability and Accountability Act (HIPAA), the Gramm–Leach–Bliley Act (GLBA), Family Educational Rights and Privacy Act (FERPA)).

“Services” means the set of means the products and services Neon makes available through the Platform and any other proprietary technologies, software, or services offered by Neon in connection to any of those. The Services do not include Third-Party Products.

“Subscription” means confirmation of the Partner’s enrolment and rights to access the Platform and/or use the Services as described in the Order Form in exchange for payment of the applicable Fees during a twelve-month period or another period indicated in the outstanding Order Form.

“Taxes” means any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, applicable in any jurisdiction.

“Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform.

“Transfers” and cognates means hosted, computed, stored, provided, uploaded, downloaded, created, generated, submitted, distributed, imported, exported, posted and/or otherwise available through the Platform.

“Website” means an interface of the Platform compiled of all web documents (including images, CSS, and HTML files) made available via https://neon.tech or its sub-domains or domains under other top domains that are owned by Neon.