Service and Software Agreement

THIS IS IMPORTANT — PLEASE READ IT FULLY

THIS WEBSITE REQUIRES CONSIDERATION FOR AND AS A CONDITION OF ALLOWING YOU ACCESS.

READING AND ACCEPTING THE TERMS OF USE AND READING AND ACCEPTING THE PROVISIONS OF THE PRIVACY POLICY OF THIS WEBSITE ARE REQUIRED CONSIDERATIONS FOR THE WEBSITE GRANTING YOU THE RIGHT TO VISIT, READ OR INTERACT WITH IT. YOU ALSO AGREE TO THESE TERMS BY UTILIZING ANY SERVICE OR PRODUCT PROVIDED BY NEON RAIN INTERACTIVE, LLC.

BY VIEWING, VISITING, USING, OR INTERACTING WITH THIS WEBSITE OR WITH ANY BANNER, POP-UP, OR ADVERTISING THAT APPEARS ON IT, YOU ARE AGREEING TO ALL THE PROVISIONS OF THIS TERMS OF USE POLICY AND THE PRIVACY POLICY OF THIS WEBSITE.

ALL PERSONS UNDER THE AGE OF 18 ARE DENIED ACCESS TO THIS WEBSITE. IF YOU ARE UNDER 18 YEARS OF AGE, IT IS UNLAWFUL FOR YOU TO VISIT, READ, OR INTERACT WITH THIS WEBSITE OR ITS CONTENTS IN ANY MANNER. THIS WEBSITE SPECIFICALLY DENIES ACCESS TO ANY INDIVIDUAL THAT IS COVERED BY THE CHILD ONLINE PRIVACY ACT (COPA) OF 1998.

THIS WEBSITE RESERVES THE RIGHT TO DENY ACCESS TO ANY PERSON OR VIEWER FOR ANY REASON. UNDER THE TERMS OF THE PRIVACY POLICY, WHICH YOU ACCEPT AS A CONDITION FOR VIEWING, THE WEBSITE IS ALLOWED TO COLLECT AND STORE DATA AND INFORMATION FOR THE PURPOSE OF EXCLUSION AND FOR MANY OTHER USES.

THE TERMS OF USE AGREEMENT MAY CHANGE FROM TIME TO TIME. VISITORS HAVE AN AFFIRMATIVE DUTY, AS PART OF THE CONSIDERATION FOR PERMISSION TO VIEW THIS WEBSITE, TO KEEP THEMSELVES INFORMED OF CHANGES.

THE TERMS YOU ARE AGREEING TO ARE AS FOLLOWS:

You are defined below as the “Client”.

Client hereby contracts Neon Rain Interactive, LLC., a Colorado corporation with offices at 2330 Broadway Suite 103 Denver, CO 80205 (referred to here as Neon Rain) for support and services as identified herein, for the provision by Neon Rain, it’s corporate affiliates, and its subcontractors of certain services.
IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS SET FORTH HEREIN, NEON RAIN AND CLIENT AGREE TO BE BOUND BY THIS AGREEMENT AND ATTACHMENTS HERETO.

1. Term/Renewal

The term of this Agreement shall commence as of the date this Agreement is accepted by Neon Rain (the “Effective Date”) and extends from the Service Commencement Date for the number of years/months specified herein (the “Initial Term”.) Upon expiration of the Initial Term, this Agreement and requested services will automatically renew for successive terms of the same number of years/months as the initial Term unless a written notice of cancellation is given by either party at least 30 days prior to the expiration of the then-current term. The start date for the term for recurring services starts at the first billing of such service. Pricing for each renewal term shall be at Neon Rain’s then current pricing.  Initial Term is one (1) year.

2. Payments and Invoicing

Client agrees to pay all Recurring and Non-Recurring Charges specified in the contract. Payment in US currency shall be due within fifteen days of the beginning of the month. Interest charges of 2 percent (2%) per month on all accounts past due.

For all Services, Non-Recurring charges including installation or setup fees plus the first increment of the agreed upon Recurring Charges will be invoiced upon execution of this Agreement. The setup fees outlined under “Fees” in Section 9 or per an external proposal are due upon signing of this Agreement. The remainder of the non-recurring charges will be invoiced and due within (15) fifteen days of the Web Site revision and completion by Neon Rain and Client dependant on agreed upon payment terms based on individual proposals.

3. Allowances for Service Interruptions (Web Hosting)

Client may be entitled to credits for Service interruptions. Any claim for credit must be submitted in writing by the Client to Neon Rain within ten business days of the event which caused the interruption.

If the accumulated interruption within any seven (7) day period equals or exceeds forty-eight (48) hours, Client shall receive a credit equal to the pro-rated charges for 1 week’s service and may terminate this Agreement with no additional penalty except payment of any due invoices and payment for hosting of the remainder of the term.

Client shall not receive credit if an interruption is (a) caused by the negligence or willful misconduct of Client or others authorized by Client to use the services provided by Neon Rain; (b) due to failure of power, or any problem of any type occurring at the Clients side; (c) a result of scheduled maintenance, or (d) due to any cause beyond Neon Rain’s control.

4. Termination

For convenience – If Client terminates this Agreement before the end of the Term; Client shall pay Neon Rain the full balance for the remainder of the term.

For Cause – Neon Rain reserves the right to suspend Services to Client for failure to comply with the provisions of “this Agreement”, failure to pay invoices when due, refusal to accept delivery of service  when ready, or other material breach of “this Agreement”. Such suspension will remain in effect until Client has corrected the problem to Neon Rain’s satisfaction. Neon Rain reserves the right to terminate this Agreement entirely if such problems recur. Termination under this Section will obligate Client to pay termination penalties as calculated in above paragraph.

For Cause – Client has the right to terminate this agreement based on downtime provisions as stated in Section 3. Allowance for Service Interruptions.

5. Warranties and Limitation on Liability

THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Neon Rain shall not be liable for claims or damages caused by Client’s fault, negligence or failure to perform Client’s responsibilities; claims against Client by any third party; or any act or omission of any other party furnishing products or services to Client. For any claim, Client’s damages, if any, shall be limited to those proven as directly attributable to Neon Rain.

Neon Rain will not be liable under any circumstances for any lost profits or other consequential damages, even if Neon Rain has been advised of the possibility of such damages. In no event will Neon Rain’s liability exceed one month’s recurring fees payable under this Agreement for the applicable Services.

6. Proprietary Rights and Information Protection

Where the Service contains programming or software proprietary or licensed to Neon Rain, Neon Rain grants to Client a non-exclusive, non-transferable license to use such programming or software during the term of this Agreement, for the sole purpose of enabling Client to use such Services.

Title and property rights including intellectual property rights to the Service or Work Product are and shall remain with Neon Rain.

Where Client utilizes programming or software in connection with the Service which is licensed to Neon Rain or to Client by a third party; Client shall adhere to the terms and conditions of the Vendor’s license agreement pertaining to each such software program. Except where expressly permitted in the documentation, downloading copies of third party software from Neon Rain servers is a violation of the terms of this Agreement.

Client recognizes that the Services, programming and software used hereunder constitute valuable trade secrets of Neon Rain. Client shall use its best efforts to protect and keep confidential all Neon Rain programming and software used by it and, shall make no attempt to examine, copy, alter, “reverse- engineer,” tamper with, or otherwise misuse such Services, programming and software.

7. Indemnification

Neon Rain’s Undertakings

If promptly notified in writing of any claim made against Client based on a claim that the Service infringes a United States patent, copyright, or trade secret, Neon Rain will indemnify Client against all costs and expenses incurred by Client in connection with such claim (including any reasonable attorney’s fees) and will defend any action at its expense and pay any and all fees, costs or damages that may be finally awarded in such action or resulting settlement. In the event that a final injunction is obtained against Client prohibiting use of the Service or any part thereof by reason of infringement of a United States patent or copyright, Neon Rain will at its option either: 1.) At its expense, procure the right for Client to continue using the Service, or; 2.) Procure alternative Services which furnish the same or similar functionality, or; 3.) Terminate such Services in which event, this Agreement shall no longer be effective as it relates to such terminated Services and a prorated portion of the prepaid charges, if any, will be refunded to Client.

Client’s Undertakings

Client agrees to defend, indemnify and hold harmless Neon Rain, its officers, directors, stockholders, employees, agents and representatives, and the successors, heirs and assigns of the forgoing, from and against any and all claims, demands, actions, suits, proceedings, losses, damages, costs and expenses, including attorneys fees, arising out of or in connection with the use by Client, or use by its downstream clients, of Neon Rain’s products or services, and any act, error, or omission of Client or its downstream clients in connection with (a) the provision by Client of any of its own or third-party products or services; (b) product liability claims; (c) damages arising from any violation by Client of its export control obligations; any libel, invasion of privacy, or disparagement claims; and (e) any violation of rights of any third party.

Client will indemnify Neon Rain for claims for infringement of any intellectual property rights arising from the use of equipment and software, apparatus and systems not leased or purchased from Neon Rain in connection with the Service.

8. Insurance

Each party shall be responsible for assessing its own need for any type of insurance, including property, casualty, and liability Insurance and shall obtain such insurance coverings its risks as it sees fit.

9. Scope of Services

Scope of services will be outlined external estimates, work orders, email requests, phone requests, or proposals or by request of client with individual requests.

Fee Schedule:

Fee Schedule will be outlined in the attached Estimate or Invoice.  When an estimate is not requested but development or consulting is requested, then Neon Rain assumes we have permission to continue with that request at an hourly rate.

10. General

Client shall not assign or transfer this Agreement in whole or in part without the prior written consent of Neon Rain, which shall not be unreasonably withheld. Any act or derogation of the foregoing shall be null and void; provided, however, that any such assignment shall not relieve the Client of its obligations under this Agreement. Neon Rain may assign this Agreement in whole or in part to an entity which (i) controls, is under common control with or is controlled by Neon Rain or (ii) succeeds (whether by merger, reorganization, sale of assets or otherwise) to the business of Neon Rain. Client agrees to allow Neon Rain a visible credit line on the bottom of the web site that has a follow link to the Neon Rain website via HTML.

Neither party shall be responsible for performance of its obligations hereunder where delayed or hindered by war, riots, embargoes, strikes or other occurrences beyond the party’s control. Each party shall notify the other party in the event of any of the foregoing occurrences. Should such occurrence continue for more than sixty (60) days, the adversely affected party can cancel this Agreement for the affected Services with no further liability other than charges prorated to the date of such occurrence.

Client agrees to preserve Neon Rain’s business reputation by refraining both during the term of any business relationship with Weber, and after the termination of any such relationship, from engaging in, transmitting, conveying, or publishing any form of communication which constitutes a disparagement of Neon Rain, whether such communication is oral, written, or a digitally coded message such as an email-message.  A communication which constitutes a disparagement of Neon Rain shall mean any communication, statement, representation, or characterization made with the general intent of harming or injuring the business reputation of Neon Rain, or for acquiring some economic advantage or benefit to the communicator or to a third party, which statement, representation, or characterization relates to the quality or competence of Neon Rain, its employees, agents, or of their service and work product.  Client further acknowledges that certain forms of disparaging communications may afford Neon Rain various forms of legal redress against the person who so communicates, such as a suit for money damages, including a statutory action for treble damages resulting from an intentional injury to business reputation if the disparaging communication is accomplished through the combined action or conspiracy of another in violation of Colorado law.

In adversarial proceedings, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.

This Agreement supersedes all previous representations, understands, or agreements and shall prevail notwithstanding any variance with terms and conditions of any purchase order submitted. This agreement may not be modified except by written amendment by the parties.

This Agreement shall be governed by the laws of the State of Colorado in the United States of America.

Notice to Neon Rain under this Agreement shall be sent to: Neon Rain Interactive, LLC. 3879 E. 120th Ave. #95
Thornton, CO 80233.

Updated: November 29, 2016