Terms AND CONDITIONS

[Updated October 26, 2017]

THE FOLLOWING DESCRIBES THE UNIVERSAL TERMS AND CONDITIONS FOR DELIVERY AND ACCESS OF, AND TO, ANY PRODUCT OR SERVICE (HEREAFTER “PRODUCT,” “PRODUCT’S,” “SERVICE,” “SERVICES,” “MANAGED SERVICES,” OR “PROFESSIONAL SERVICES”) NPG SOLUTIONS, LLC (“NPG SOLUTIONS” OR “NPG”) OFFERS TO ITS AUTHORIZED CUSTOMERS AND/OR USERS OF (HEREAFTER “CUSTOMER,” CUSTOMER’S,” “CLIENT,” “CLIENTS,” “YOU,” “YOUR,” “YOURSELF,” “USER,” OR “USERS”).

WELCOME TO NPG.  NPG delivers trusted INFORMATION TECHNOLOGY ADVISORY SERVICES, MANAGED SERVICES, PROFESSIONAL SERVICES and OTHER TECHNOLOGY AND CLOUD-ENABLED AUTOMATION APPLICATIONS SERVICES to its CLIENTS. By specializing in mainly FIVE technology buckets: Cloud, Connectivity, Collocation, Security and Spend Management Services, NPG has been delivering proven and trusted RESULTS to it’s CLIENTS since 2009.  Using our DECADES of combined industry experience and the power of our immense intellectual property, technology platform and industry assets, NPG continues to deliver the best-in-class technology solutions, trusted advice and assistance it CLIENTS and USERS by helping them to understand the ins-and-outs of every major technology provider AND providing access to cloud spend management tools that offer “PEACE OF MIND” to our CLIENTS.

YOU ARE OBLIGATED TO READ, AGREE TO AND ACCEPT ALL THE TERMS CONTAINED IN THIS AGREEMENT BEFORE YOU PURCHASE SERVICES FROM NPG. IN CONSIDERATION OF YOUR USE OF ANY SERVICE PROVIDED BY NPG, YOU REPRESENT THAT YOU ARE OF LEGAL AGE (18 YEARS OR OLDER) TO FORM A BINDING CONTRACT AND ARE NOT A PERSON BARRED FROM RECEIVING SERVICES UNDER THE LAWS OF THE UNITED STATES OR OTHER JURISDICTION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT; THEN DO NOT USE OR ACCESS NPG’S SERVICE(S).

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY WHEN YOU ARE ACCESSING THE SERVICES AND/OR NPG’S PROPRIETARY SOFTWARE TECHNOLOGY PLATFORM DELIVERED BY NPG AND/OR ITS PARTNERS AND THIRD-PARTY AFFILIATES. IF YOU HAVE QUESTIONS PERTAINING TO THE USE OF NPG’S SERVICE, PLEASE REFER TO OUR ‘CONTACT US’ SECTION OF OUR WEBSITE (“WEBSITE”) AT HTTPS://WWW.NPGSOLUTIONS.COM OR CONTACT YOUR ACCOUNT MANAGER OR OUR WEBMASTER. THESE TERMS AND CONDITIONS ("TERMS") GOVERN THE USE OF THE NPG SERVICE(S) AND RELATED SERVICES ("SERVICE") AND ALL RELATED SOFTWARE (THE "SOFTWARE" AND TOGETHER WITH THE SERVICE, THE "PRODUCT(S)"). BY YOU COMPLETING ANY ELECTRONIC ACCEPTANCE PROCESS, CLICKING ANY "SUBMIT" OR "ACCEPT" LINKS OR BUTTONS, SIGNING AN AGREEMENT, USING ANY OF THE PRODUCTS AND SERVICES OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AUTHORIZED TO SIGN FOR AND BIND YOURSELF AND ANY OTHER PARTY ON WHOSE BEHALF YOU USE THE SERVICE AND/OR SOFTWARE (THE "OTHER AUTHORIZED USERS") AND/OR (II) AGREE FOR YOU AND ANY OTHER AUTHORIZED USER TO BE BOUND BY ALL OF THESE TERMS (INCLUDING THE DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY SECTIONS SET FORTH BELOW) TO THE EXCLUSION OF ANY OTHER RIGHTS AND OBLIGATIONS, SUCH AS ANY RIGHTS, OBLIGATIONS OR OTHER TERMS LISTED ON A PURCHASER ORDER, OR THE LIKE, YOU, OR ANY OTHER AUTHORIZED USER, MAY PROVIDE TO NPG AND YOU AGREE THAT ANY SUCH RIGHTS, OBLIGATIONS OR OTHER TERMS LISTED ON SUCH A PURCHASE ORDER, OR THE LIKE, ARE HEREBY NULL AND VOID AND (III) YOU ARE AUTHORIZED BY AN INDIVIDUAL WITHIN YOUR ORGANIZATION TO USE THE SERVICE AS PROVIDED BY NPG.

NPG Universal Terms

1. GENERAL

1.1. ACCEPTANCE AND APPLICATION OF TERMS.

These NPG Solutions, LLC Business Terms and Conditions (which, together with all amendments hereto and all other documents expressly incorporated by reference herein, are referred to throughout as the “Terms”) form part of a legally binding contract between NPG Solutions, LLC an Ohio company (“NPG”), and the individual or legal entity in whose name NPG agrees to provide Services to (“Customer,” “Client(s),” “You,” “Your” “Yourself,” or “User(s)”). These Terms, and the Customer Agreement, generally govern your acquisition and use of Products and Services  (“Product(s)“ or “Service(s)”) offered by NPG.

PLEASE READ THESE TERMS CAREFULLY BECAUSE THEY AFFECT THE LEGAL RIGHTS BETWEEN YOU AND NPG BY, AMONG OTHER THINGS, (1) LIMITING NPG’S LIABILITY TO YOU, (2) REQUIRING ARBITRATION OF CERTAIN DISPUTES AND (3) REQUIRING PAYMENT OF EARLY TERMINATION CHARGES.

When you accept these Terms in conjunction with ordering Services (for example, by signing a Service Agreement or Service Order that references these Terms, or clicking a box online that is adjacent to an acknowledgement), or when you access or use the Services after you are notified that these Terms apply to the Services, you agree to be bound by these Terms. If the individual who accepts these Terms is acting on behalf of a corporation, company, partnership, organization, association or other legal entity, then that individuals hereby represents and warrants to NPG that he or she has the authority to bind such entity.

IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH THESE TERMS, THEN YOU SHOULD NOT ACCEPT THESE TERMS AND YOU SHOULD NOT ACCESS OR USE, OR AUTHORIZE ANYONE TO ACCESS OR USE, NPG’s SERVICES.

These Terms shall amend and restate, supersede and replace in their entirety any earlier versions of the NPG’s “Business Terms and Conditions” previously applicable to your Services, effective as of the date indicated in the introductory note above.

1.2 SERVICE ORDERS AND SERVICE AGREEMENTS.

Customer may order Services from time to time by entering into Service Orders with NPG. Each Service Order will be subject to these Terms and, if Customer enters into a Service Agreement with NPG, any additional and/or modified terms as the Service Agreement may specify. When Customer enters into its first Service Order or Service Agreement with NPG, Customer establishes a Customer Agreement with NPG that has the term (the “Initial Term”) specified in that first Service Order or in the Service Agreement, as applicable. Unless otherwise stated or agreed upon in writing, all subsequent Service Orders shall be subject to and coterminous with (i.e., have the same expiration date as) the Customer Agreement. Upon their effectiveness, such Service Orders shall be deemed to amend and become part of the Customer Agreement.

1.3 AMENDMENTS.

The numbered provisions of this document, together with any Amendments, are referred to collectively as the “Universal Terms.” The Universal Terms apply to all customers of NPG regardless of location.

2. SERVICES.

2.1 GENERAL.

NPG shall, itself or through one or more of its Affiliates, vendors, subcontractors or other service-providers (each, an “NPG Partner”), provide the Services ordered by Customer from time-to-time in accordance with the terms and subject to the conditions of the Customer Agreement.

2.2 PLATFORM SERVICES.

2.2.1 General. NPG hereby grants Customer the non-exclusive, non-transferable (except as provided herein) right to access and use the Platform Services that may be part of a managed services offering or ordered directly by Customer from time to time, together with all related components of the NPG Platform, during the term of the applicable Service Order, for Customer’s own internal business purposes, subject to the terms and conditions of the Customer Agreement.

2.2.2 User Limits. Customer’s use of NPG’s Platform Services may be subject to limitations on the number of Agents authorized to use the Platform Services. Unless the Customer Agreement provides otherwise: (a) a specified quantity of Users of Services in a Service Order limits the number of Agents and corresponding account logins to the specified quantity; (b) an Agent’s login credentials may be used only by the designated Agent until his or her account is reassigned; and (c) an Agent’s account login may be reassigned to a new individual only when replacing a previously authorized Agent who will no longer use the Services. Customer may designate as Agents only individuals over whom Customer has sufficient control (contractual or otherwise) to ensure compliance with these Terms, such as employees and consultants.

2.2.3 Customer Requirements. Customer shall be responsible for ensuring that its Internet connection, any local network equipment, hardware and software used in connection with the Services, and all related configurations (collectively, “Environment”), adhere to the minimum standards and technical requirements specified in applicable Documentation. Customer agrees to: (a) grant NPG access to Customer’s personnel, facilities and other resources under Customer’s control as NPG may reasonably request in order to perform its obligations under the Customer Agreement; (b) allow NPG, upon reasonable request and subject to compliance with Customer’s security policies, to conduct an initial assessment of Customer’s network; and (c) make any adjustments to Customer’s Environment that NPG reasonably determines necessary to satisfy the minimum technical prerequisites specified in the applicable Documentation.

2.3 IMPLEMENTATION SERVICES.

NPG shall use commercially reasonable efforts to perform the Implementation Services ordered by Customer as promptly as practicable following Customer’s placement of an order or (if applicable) in accordance with the schedule specified in the Customer Agreement. Implementation Services shall be provided remotely unless Customer’s Support Plan provides for on-site deployment.

2.4 PROFESSIONAL SERVICES.

From time to time, Customer may request, and NPG may agree to perform, work beyond the scope of the Implementation Services and/or Support Services to be provided by NPG under the Customer Agreement. The fees for such additional services (“Professional Services”) shall be based on NPG’s standard time, material and travel rates, unless the parties agree otherwise in writing. Professional Services shall be subject to these Terms and such other terms as the parties may agree in a Statement of Work (“SOW”). Customer acknowledges that Professional Services are performed on a reasonable efforts basis, and that NPG cannot guarantee a particular outcome or result.

2.5 TECHNICAL SUPPORT.

NPG provides technical support for Services to its customers via telephone, e-mail and, if available, web-chat. Support shall be available during NPG’s regular business hours, unless otherwise specified in the applicable Support Plan. Customer is entitled to basic Support Services for all Platform Services free of charge. At NPG’s discretion, these Support Services may have set limitations on hours and days that NPG personnel may be available to support the Customer. NPG may charge Customer (at Professional Service rates) for its time and expenses in investigating and attempting to remedy service issues that are (a) related to Unsupported Services or (b) reasonably diagnosed as problems with Customer’s Environment rather than the Services.

2.6 UNSUPPORTED SERVICES.

Notwithstanding anything the contrary herein, neither NPG nor any of its designated Affiliates shall be required to provide technical support for, and NPG disclaims all service level commitments, representations and warranties as to the performance of, Services that are either (a) used for a purpose or in a manner inconsistent with the Documentation (for example, as part of an alarm or paging system), (b) used with Unsupported Devices or with supported equipment that does not comply with Section 6.5; or (c) accessed in an Environment for which the Customer has waived a network assessment or failed to make requested adjustments under Section 2.2.3 above (the Services described in clauses (a) through (c) are referred to collectively as “Unsupported Services”).

3. BILLING AND PAYMENT.

3.1 GENERAL.

NPG, or a designated Affiliate, shall bill Customer, and Customer shall pay when invoiced, all fees, charges, Taxes and other amounts in respect to Services  in accordance with this Section 3.

3.2 BILLING.

Unless the Customer Agreement provides otherwise: (a) monthly Service Fees shall be billed in advance of each month’s Service, and toll and other usage charges shall be billed in arrears; (b) billing of Service Fees and other monthly recurring charges shall commence on the date that is seven days after Customer’s order of Services, or on the date NPG provisions such Services, whichever is earlier; (c) fees for Implementation of Services and Professional Services and other one-time Service charges shall be billed upon order of the Services; and (d) shipping and related charges, if applicable to Service ordered, shall be billed upon shipment. Service Fees for any additional Services added during a calendar month shall be pro-rated based on the number of days billed during that month.

FOR AVOIDANCE OF DOUBT, UNLESS THE SERVICE AGREEMENT EXPRESSLY STATES OTHERWISE, BILLING WILL COMMENCE WITHIN FIVE (5) BUSINESS DAYS OF THE INITIAL ORDER. The initial Customer provisioning process, which creates a unique account and enables a Customer to proceed to log-in, set a password and then access the Services, is generally completed within five (5) business days.

3.3 PAYMENT AND CREDIT TERMS.

Unless the Customer Agreement provides otherwise, all amounts due and payable under the Customer Agreement may be payable by Customer via ACH, check  or credit card (if service is available), and payment is due 15 days from the invoice date (Net 15). Any Services that may be provided to a Customer on credit shall be subject to NPG’s credit review and approval of Customer’s credit worthiness, and NPG, in its reasonable discretion, may discontinue or limit Customer’s credit at any time, require a deposit or bank guarantee, or place a limit on the amount of charges that Customer can incur before making a payment. If available, with any Customer payments by credit card, NPG does not collect or store Customer credit card information but alternatively would be processed by a third-party credit card processing company. Customer will receive electronic invoice for all amounts due and payable hereunder in respect of the Services  ordered by Customer. Customer agrees to notify NPG promptly of any change to such billing information. Unpaid balances are subject to a late payment charge that accrues from the due date at the rate of 1.5% per month or the maximum amount permitted by applicable law, whichever is less.

3.4 TAXES AND FEES.

Customer is responsible for paying all taxes, levies, imports, duties, charges, fees or similar governmental assessments, including value-added tax (“VAT”), sales, use, withholding that may be assessed or assessable by any governmental, fiscal or other authority relating to the sale and provision of Services to Customer and Customer’s use of Services (collectively, “Taxes and Fees”), other than those assessable against NPG based solely on its income. NPG shall invoice Customer for all such Taxes that NPG reasonably believes it has a legal obligation to collect and remit (or in respect of any obligations that NPG is permitted to pass on to its customers, as in the case of certain government assessed fees and/or similar taxes) under applicable Law, and Customer agrees to pay all Taxes and Fees invoiced. Any Taxes set forth in a quote or Service Order shall be calculated by NPG in good faith based on the service address or addresses provided by Customer but shall be non-binding estimates only. If Customer asserts an exemption from any Taxes, Customer shall deliver to NPG a valid tax exemption certificate authorized by the appropriate taxing authority, and Customer shall be liable for any Taxes assessed prior to such delivery. In no event shall Customer make any deduction or short-pay to any amount payable under the Customer Agreement for or on account of any Taxes and Fees, or withholdings of any nature imposed by any governmental, fiscal or other authority, except as required by law. If Customer is required by Law to make any such deduction, it will (a) first notify NPG of such obligation, (b) furnish NPG with receipts evidencing remittance of the money, and (c) pay such additional amounts as are necessary to ensure receipt by NPG of the full amount that NPG would have received but for the deduction. Customer acknowledges that NPG may not invoice or charge for any value-added goods and services or similar Taxes and Fees in certain jurisdictions that permit reverse charge of such Taxes and Fees. Customer is responsible for withholding, accounting  for and remitting any such Taxes and Fees on Services in such jurisdictions.

3.5 DISPUTED CHARGES.

Customer agrees to pay all charges due and payable under the Customer Agreement without counter-claim, set-off or deduction, other than amounts disputed in accordance with this Section 3.5. To dispute a charge, Customer shall provide notice by email to info@NPGSolutions.com within thirty (30) days of the charge, setting forth the amount in dispute and the basis of the dispute in reasonable detail. Failure to so dispute a charge within such 30-day period shall constitute an irrevocable waiver of Customer’s right to dispute the charge. The parties shall attempt to resolve the dispute in good faith for a period of 30 days from the notice, in accordance with the procedures for Claims under Section 16.2. If any charges remain in dispute at the end of the 30-day period, Customer shall pay the full amount due within 10 days, otherwise NPG may exercise any available remedies for breach (without regard to any further notice requirement or opportunity for cure under these Terms, which shall be deemed waived).

3.6 THIRD-PARTY SERVICES.

If applicable and agreed upon by Customer, NPG may offer to bill and collect payment for certain Services that may be offered to Customer but provided to Customer by a third-party provider pursuant to a separate service contract between Customer and such third-party (“Third-Party Services”). Customer authorizes NPG to bill, collect and remit to the Third-Party Service provider any amounts chargeable for Third-Party Services in accordance with the procedures applicable to Services under this Section 3. Customer acknowledges that: (a) NPG makes no representations or warranties regarding, and shall have no responsibility or liability whatsoever for, Third-Party Services; (b) NPG shall not be deemed a reseller of Third-Party Services; and (c) Customer shall look solely to the Third-Party Service provider for any remedies relating to said Services.

3.7 SERVICE FEE RATES; PRICING CHANGES.

When NPG and Customer execute a Service Order for Customer’s initial order of NPG Services, the Service Fee rates specified in that Service Order establish the pricing for those Services, and those rates shall not be increased for the duration of the then-current Term. Subject to the foregoing, NPG may increase Service Fee rates during any Renewal Term provided that (a) NPG gives Customer notice of such increase at least 60 days prior to the commencement of respective Renewal Term or (b) Customer materially reduces its dollar volume of NPG Services. NPG may increase Service Fees for a customer on Month-to-Month Service at any time, up to what would be determined the then-applicable list prices (i.e. non-discounted multi-year term available Service offerings). Except as provided in this Section 3.7, the rates and pricing for Services  ordered in a Service Order shall not constitute a commitment of NPG to offer such rates and pricing for future related or non-related Service orders.

3.8 MISCELLANEOUS.

Unless otherwise provided in the Customer Agreement or prohibited by applicable Law:

3.8.1 Refund Policy. All prepaid fees and other payments by Customer under these Terms are non-refundable and non-creditable.

3.8.2 Reactivation Fee. NPG may charge Customer a fee in order to reactivate and re-establish Customer’s account following Customer’s termination of Services or NPG’s termination or suspension of Services due to Customer’s breach.

3.8.3 Promotions. From time to time, NPG may offer promotional rates or discounts for Services. Any promotions or discounts must be accounted for at the time Services are ordered. Promotions and discounts may not be used cumulatively or applied retroactively and, in its sole discretion, may be modified or discontinued by NPG at any time. In no event shall promotional pricing be guaranteed for a term longer than the term for which Customer has ordered the Services.

4. TERM AND RENEWAL

4.1 INITIAL TERM.

The Customer Agreement shall become effective upon effectiveness of the initial Service Order or Service Agreement, as applicable, and shall remain in effect through the last day of the Initial Term, subject to automatic renewal or continuation under Section 4.2, and unless terminated sooner under Section 5.1.

4.2 RENEWAL.

At the end of the Initial Term and each Renewal Term (as defined below), the Customer Agreement (including all Service Orders then in effect) shall be renewed automatically and continue in effect for an additional term of twelve (12) months (each, a “Renewal Term“), unless (a) either party gives notice of its election to terminate the Customer Agreement or any of the Services thereunder or (b) Customer gives notice of its election to continue the Services on a month-to-month basis (i.e. for automatically renewing, successive, one-month terms) at the list price for such Services (“Month-to-Month Service”), with notice in each case given at least 30 days prior to the end of the Term. Service Fee rates are subject to increase after the Initial Term as provided in Section 3.7.

Notwithstanding the foregoing, if the parties have entered into any non-coterminous Service Orders, the renewal provisions of this Section 4.2 shall be applied separately to each set of coterminous Services associated with such orders.

5. TERMINATION AND SUSPENSION

5.1 TERMINATION.

Except as other provided in the Customer Agreement or prohibited by law, a party may terminate the Customer Agreement or any or all Services thereunder by giving notice to the other party as follows:

5.1.1 Month-To-Month Service. If Customer orders Services on Month-to-Month term, either party may terminate the Customer Agreement or any Services thereunder at any time. The termination shall be effective on the last day of the next calendar month after the notice was given, or such later date as may be specified in the notice. No penalties shall apply to such termination and should there be any payments due on the account upon such termination, they are required to be payed in full.

5.1.2 Material Breach. Either party may terminate the Customer Agreement and all Services thereunder in the event of a material breach by the other party, provided such breach (if capable of cure) is not cured within 30 days’ notice thereof by the non-breaching party. For avoidance of doubt, a material breach hereunder shall include (a) Customer’s failure to make timely payment hereunder (subject to Section 3.5 above) and (b) Customer’s breach of any representation or covenant under Section 10.2 or 10.3.

5.1.3 Bankruptcy, etc. Either party may terminate immediately the Customer Agreement and all Services thereunder if (i) the other party dissolves or becomes insolvent or bankrupt, (ii) the other party makes any assignment for the benefit of creditors or (iii) any bankruptcy, reorganization, insolvency or similar proceedings is instituted by or against the other party and not dismissed within 30 days.

5.1.4 Compliance with Law. NPG may terminate Services provided to a Customer Location if NPG determines, in good faith, such termination is necessary to comply with a court order or other Law applicable to Services at that Customer Location, provided NPG shall refund any unused prepaid Service Fees in respect of the terminated Services.

5.1.5 For Convenience. Customer may terminate the Customer Agreement or any Services thereunder, for any reason or for no reason, at any time during the Initial Term or a Renewal Term by giving 30 days’ written notice, provided Customer shall be liable for any early termination charges under Section 5.2 below.

5.2 EARLY TERMINATION AND RELATED CHARGES.

5.2.1 General. All payment obligations under the Customer Agreement are non-cancellable, and the dollar volume of Service ordered cannot be modified below the original value during the relevant Term, except as expressly provided in this Section 5 or elsewhere in the Customer Agreement.

5.2.2 Early Termination Charges. If the Customer Agreement and/or any of the Services ordered thereunder are cancelled or terminated by Customer for convenience, or by NPG due to Customer’s breach, before the end of the Initial Term or then-current Renewal Term (as applicable), Customer shall pay NPG immediately upon termination an early termination charge equal to the monthly recurring charges associated with the terminated Service(s) (including Service Fees and applicable Taxes due), multiplied by the number of months then remaining in the terminated Service Term. Any reduction of Service or downgrading of Services (for example, to a Service with a reduced monthly Service Fee) shall be treated as a termination of Service for purposes of this paragraph, and early termination charges shall be calculated based on the reduction in monthly recurring charges attributable to such reduction or downgrade. Customer acknowledges and agrees that the Service fee rates offered to customer are based upon customer’s promise to pay early termination charges hereunder and those aforementioned rates may have been offered at substantially higher rates absent such an agreement.

5.3 SUSPENSION OF SERVICE.

Without limiting NPG’s rights or remedies hereunder, NPG may suspend some or all Services if NPG determines, in its reasonable judgement, that the Services are being used (a) in a fraudulent or illegal manner or (b) in a manner that is likely to (i) disrupt or compromise the integrity or security of the NPG Platform, the network of NPG or any NPG Partner, or the privacy of any NPG customers or (ii) cause imminent and material damage to NPG or any NPG Partner, but only for as long as reasonably necessary to mitigate the risk of such harm. NPG shall notify Customer in advance of such suspension, if practicable, and otherwise promptly thereafter. Suspension of Services shall not release Customer from its obligations under the Customer Agreement; provided, Customer shall receive credit for the full suspension period if Customer is determined not to have breached the Customer Agreement.

6. CONFIDENTIALITY

6.1 DEFINITION.

Either party may, directly or through an Affiliate, vendor, subcontractor or other NPG Partner or advisor, or any workforce member or agent of the foregoing (collectively, “Representatives”), disclose or otherwise make available to the other party or its Representatives (collectively, the “Receiving Party”) information concerning the disclosing party or its Representatives (collectively, the “Disclosing Party”) which the Disclosing Party indicates is confidential or proprietary, or which, by its nature, would reasonably be expected to be confidential or proprietary (collectively, “Confidential Information”), including, for example, trade secrets, technical information, pricing data and product plans, but excluding Customer Data (which is addressed in Section 8 below, applicable provisions of the Privacy Policy). In addition, the pricing and other terms of the Customer Agreement shall be deemed the Confidential Information of each party. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can demonstrate (a.) is already or later becomes disclosed to the general public other than through the fault or negligence of Receiving Party or (b.) is lawfully obtained by Receiving Party from a third party which has the right to transfer or disclose it.

6.2 OBLIGATIONS.

The Receiving Party agrees: (a) to keep the Disclosing Party’s Confidential Information confidential and disclose it only (i) to its Representatives to whom such disclosure is reasonably necessary to accomplish the purpose for which the Confidential Information was disclosed to the Receiving Party and who are bound to reasonable confidentiality obligations with respect to such Confidential Information, (ii) in response to a judicial order or other lawful process, as and to the extent required by such order or process or (iii) as approved in writing by the Disclosing Party; (b) not to use Disclosing Party Confidential Information except for the purpose(s) for which the Confidential Information was disclosed or as approved in writing by the Disclosing Party; and (c) to protect the confidentiality of the Disclosing Party’s Confidential Information with the same degree of care as Receiving Party uses to protect its own Confidential Information of like kind, but in no event less than reasonable care. Each party shall use reasonable efforts to ensure that its Representatives observe these obligations as if they were parties to the Customer Agreement.

6.3 SURVIVAL.

Each party’s obligations under this Section 7 shall survive any termination or expiration of the Customer Agreement and remain in effect for three (3) years thereafter or, in the case of trade secrets, as long as permitted by applicable Law. The parties agree that, in the event this Section 7 conflicts or is inconsistent with a non-disclosure or confidentiality agreement (an “NDA”) previously entered into by the parties, this Section 7 shall govern as to disclosures from and after the effective date of the Customer Agreement.

7. DATA PROTECTION AND SECURITY

7.1 PRIVACY POLICY.

Customer acknowledges that it has read and understood NPG’s Customer Privacy Policy (available at www.NPGSolutions.com “Privacy Policy”).

7.2 GENERAL.

NPG shall maintain commercially reasonable administrative, physical and technical safeguards designed to protect the confidentiality and integrity of Customer Data. To the extent any Customer Data includes Personal Data, NPG shall comply with any applicable data protection Laws requirements associated with delivery of Service.

7.3 CUSTOMER DATA.

7.3.1 Limited Use. Customer grants NPG a non-exclusive and non-transferable (except as provided herein) right to access Customer’s account(s) and to collect, process, transfer, use, modify, reproduce, store, record, transmit, distribute, display, view, print, translate and disclose Customer Data (which may include Personal Data of Agents, other users of the Services and other third parties), subject to the limitations and conditions set forth in the Privacy Policy and solely for the purposes set forth therein.

7.3.2 Permitted Use(s). Customer acknowledges and agrees that NPG may, subject to the terms and conditions of the Privacy Policy: (a) disclose and transfer Customer Data to an NPG Affiliate or other NPG Partner as and to the extent necessary to provide Services to Customer; (b) disclose Customer Data to courts, government agencies and other Third Parties as and to the extent required by Law, including in response to subpoenas, court orders and other legal process; (c) collect and aggregate Customer Data with data from other customers, and use and disclose Customer Data in anonymized form, including for the purpose of (i) compliance with reporting requirements under applicable Laws, (ii) quality control and assurance or (iii) improving the Services and developing new services; and (d) collect, use and disclose Customer Data to third parties when NPG determines, in its reasonable judgement, that such disclosure is necessary to protect the safety of an Agent or another individual, to investigate suspected fraud, or to trace debtors.

7.4 CUSTOMER RESPONSIBILITIES.

Customer shall use all reasonable efforts to prevent unauthorized access to and use of Services and agrees to notify NPG promptly of any such unauthorized access or use or other breach of security relating to its account. Among other safeguards, NPG recommends that Customer instruct its authorized users and Agents to (a) choose robust password combinations, change their passwords regularly and not disclose their passwords except to authorized NPG Support agents, and (b) perform a “log off” / exit of their accounts at the end of each session.

7.4.1 USER PASSWORDS

Customer and its authorized users and Agents are responsible for safeguarding any password that is used to access any secure areas of NPG’s Platform. Customer and its authorized users and Agents agree not to disclose any password(s) to any third party. Customer and its authorized users and Agents also agree to take sole responsibility for any activities or actions under your password, whether or not you have authorized such activities or actions. of any If there is any knowledge of any unauthorized use of a password, NPG is to be immediately notified of such.

7.5 DATA STORAGE.

Customer acknowledges that the Services are not intended and should not be used for long-term data storage. Customer is encouraged to back-up regularly any Customer Data that it wishes to retain and use other than in connection with the Services. NPG shall not be responsible for any Customer Data exported from the Services, including without limitation via third-party integrations or applications, or storage on devices or external media or accounts. NPG reserves right to periodically purge Customer Data from its servers, subject to any data retention requirements under applicable Laws or the Customer Agreement.

7.6 INTERNET.

Customer acknowledges that its use of the Services requires the transmission of electronic data over the Internet and various other networks that are not owned or operated by, or otherwise under the control of NPG.  And Customer acknowledges that NPG cannot ensure that such transmissions will not be accessed by unauthorized parties. Except as expressly provided in the Customer Agreement, NPG shall not be not responsible or liable for any delay, loss, alteration or interception of Customer Data in the course of its transmission through and between networks not owned and/or operated by NPG.

8. SERVICE LIMITATIONS

8.1 AVAILABILITY.

NPG shall use commercially reasonable efforts to make the Services available continuously and without interruption at all times during the Term, other than during scheduled maintenance and repair, and to minimize the loss of data in Customer’s communications. However, Customer acknowledges and agrees that the Services will not be uninterrupted, error-free or available 100% of the time. NPG shall have no obligation to provide credit allowances for interruption of the Services except as expressly provided in the Customer Agreement.

8.2 QUALITY OF SERVICE.

Cloud-enabled Services and IP-based communications have inherent limitations relative to analog and other traditional communications methods. While NPG’s Services have been engineered to address and manage these limitations, NPG cannot guarantee that all access attempts to the NPG Platform will be successful. Customer acknowledges and understands that accessing NPG’s Platform will depend not only on the specification and availability of the IP service to which Customer is connected but also on the telecommunications network to which its connected.

9. CUSTOMIZATIONS AND DEVELOPMENT.

NPG may agree or refuse, in its sole discretion, any Customer requests for custom modifications or additions to any Service or other aspects of the NPG Platform (“Customizations”) for Customer’s benefit. Any Customization work performed by NPG shall be charged as Professional Services and shall be undertaken via a Service Order and/or Scope and on a reasonable effort’s basis. Customer acknowledges that NPG does not provide support for Platform Customizations under its standard Terms.

9.1 BETA SERVICES.

From time to time, NPG may make available, to some or all of its customers, new or modified Services, or features or functionalities of existing Services, which are designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a similar description (“Beta Services”), prior to their general release. Beta Services are intended for evaluation purposes only and not for production use, are not supported by NPG, and may be subject to additional terms. Beta Services are not considered “Services” under the Customer Agreement for purposes of any representations, warranties, service level agreements or commitments or other agreements of NPG; however, all restrictions and limitations applicable to Customer’s use of Services shall apply to Beta Services. NPG may discontinue Beta Services at any time in its sole discretion and may never make them generally available. NPG will have no liability for any harm or damage arising out Customer’s use of a Beta Service.

10. USE RESTRICTIONS AND CUSTOMER RESPONSIBILITIES

10.1 CUSTOMER ACCOUNTABILITY FOR USE OF SERVICES.

Customer shall be responsible and liable for all access and use of the Services by Customer’s Agents or otherwise through Customer’s Platform account (“Customer Use”), other than unauthorized activities and charges resulting from the gross negligence or willful misconduct of NPG or an NPG Partner. Customer understands and acknowledges that the right of its Agents to access and use the Services shall also be subject to each Agent’s acceptance of NPG’s standard Terms of Use (“TOU”), as amended from time to time (available at https://www.NPGSolutions.com).

10.2 COMPLIANCE WITH LAW.

Customer agrees to comply with all applicable United States and other international, national, state, provincial and local laws, regulations, codes, ordinances, treaties, conventions, and court and administrative orders and rulings (collectively, “Laws”) in relation to its access and use of the Services and the NPG Platform generally. Customer shall be solely responsible for familiarizing itself with such Laws and shall not treat or rely on any statements, communications or materials provided by NPG or its Representatives as legal advice.

Without limiting the foregoing:

Import and Export. Customer shall comply with all export and import Laws of the United States and other jurisdictions applicable to its use of the NPG Platform and to its use. Customer shall not access or use any Service in a United States embargoed country. Customer represents and warrants that it is not named on any United States government denied-party list.

NPG retains the right to investigate and prosecute violations of any of the above, including intellectual property rights’ infringement and Platform security issues, to the fullest extent permitted by law. NPG may also involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms and Conditions. You acknowledge that NPG Solutions has no obligation to monitor your access to or use of the Platform, Content and Services, but has the right to do so for the purpose of operating the Service and to ensure compliance with the Terms and Conditions, or if to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

10.3 OTHER USE RESTRICTIONS.

Customer agrees to comply, and to cause its Agents and other users of the Services through its account, to comply with the following provisions to these Terms as follows:

Without limiting any other provision of these Terms, in connection with Your use of the Services and the NPG Platform, You represent, warrant and covenant as follows:

(a) You shall use the Services solely for your own internal business use only and not as agent or on behalf of any third party;

(b) You shall promptly install all upgrades, bug fixes, patches and other corrections relating to the Services that NPG makes available from time to time;

(c) You shall not take any action or omission that would reasonably be expected to (i) disrupt or compromise the integrity or security of the NPG Platform, any network of an NPG partners or vendor, or the privacy of any other NPG customer or (ii) cause imminent and material damage to NPG or any of NPG’s partners, vendors or other customers;

(d) You shall not use or access the Services or any portion of the NPG Platform under your control:

i.  for any fraudulent, criminal, defamatory, harassing or tortious purpose, or to participate in or promote any illegal activity;

ii. to breach, violate or infringe intellectual property, privacy or other rights, or misappropriate the property of, any third party;

iii. to input or store any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or similar programs or materials;

(e) You shall not inspect, possess, use, copy, reverse engineer, or attempt to discover the source code of or used to create any program or other component of the NPG Platform, except as expressly permitted by applicable Laws;

(f) You shall not attempt to hack or gain unauthorized access to any network, environment, or system of NPG or any of NPG’s partners, vendors or other customers;

(g) You shall not sell, resell, license, sub-license, distribute, offer, rent or lease any Service, or otherwise make any Service available to any third party;

(h) You shall not access any Service in order to build a competitive Product or Service

10.4 PROFILE INFORMATION.

Customer shall ensure that all of its account and user profile information (collectively, “Customer Profile”) is accurate, current and complete at all times during the Term.  This information could  include, for example, Customer’s legal name, address, email address, telephone number, and the service address and other information of its users. Customer agrees to promptly notify NPG of any changes in Customer Profile Information and to verify such information upon reasonable request from NPG.

11. CHANGES TO SERVICES AND TERMS

11.1 SERVICE CHANGE.

NPG shall be permitted to perform upgrades and make other modifications to the Platform Services that may be ordered by Customer (each, a “Service Change”) from time to time, if such Service Changes do not materially reduce the overall functionality or security of the Service. NPG will use commercially reasonable efforts to notify Customer in advance any such Service Change.

11.2 CHANGE IN TERMS.

NPG may amend or make modifications to these Terms from time to time by posting notice of such changes to www.NPGSolutions.com, which changes shall be effective upon posting; provided, however, NPG shall give Customer at least 30 days’ prior written notice of any change that would materially reduce Customer’s rights or benefits, or materially increase Customer’s obligations or liability, under the Customer Agreement (each, a “Material Change”). Customer shall have the right to opt out of any Material Change by sending notice of objection to info@NPGSolutions.com within 30 days of notice of the Material Change, in which case the Material Change shall not apply for the duration of Customer’s then-current Term. However, if Customer delivers such an objection notice, NPG shall thereafter have the right to terminate the Customer Agreement by giving Customer 30 days’ written notice of termination.

12. INTELLECTUAL PROPERTY RIGHTS AND LICENSES.

12.1 INTELLECTUAL PROPERTY RIGHTS.

Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the NPG Platform, including intellectual property rights, will remain with NPG and/or its Affiliates and belong exclusively to NPG and/or its Affiliates. To the maximum extent permitted by Law, NPG shall own all intellectual property rights in and to all software code, Service configuration designs and other work product produced or developed by NPG in the course of providing Services hereunder to Customer (including Customizations and other deliverables under a SOW), except to the extent (a) such work product embodies Customer’s pre-existing intellectual property or (b) the parties expressly agree otherwise in a Service Agreement.

12.2 USE OF FEEDBACK.

Customer hereby assigns to NPG all right, title and interest (including intellectual property rights) in and to any new feature improvement, suggestion, enhancement request, recommendation, correction, idea or other feedback that Customer may provide to NPG relating to the Services or NPG’s operations (collectively, “Feedback”), and Customer agrees that NPG shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever without compensation to Customer.

13. REPRESENTATIONS AND WARRANTIES

13.1 NPG REPRESENTATIONS AND WARRANTIES.

NPG (a) represents and warrants to Customer that NPG has the power and authority to enter into and perform its obligations under the Customer Agreement, (b) warrants that NPG shall perform Managed Services and Professional Services in a professional and workmanlike manner and with reasonable skill and care and (c) warrants that the Services shall perform to any agreed upon service levels. Note that the aforementioned and foregoing representations and warranties do not apply to any free trial Services, Beta Services or Unsupported Services.

13.2 EXCLUSIVE REMEDY.

Unless other provided in the Customer Agreement, Customer’s sole and exclusive remedy for breach of the warranties in clause (c) and of Section 13.1 is to be determined at the election of NPG.

13.3 DISCLAIMER OF WARRANTIES.

EXCEPT AS EXPRESSLY PROVIDED IN SECTION 13.1, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NPG MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES IN RELATION TO THE SERVICES , WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NPG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR AVAILABLE 100% OF THE TIME, OR THAT ALL ATTEMPTED CUSTOMER ACCESS TO PLATFORM WILL BE FULFILLED.

13.4 CUSTOMER REPRESENTATIONS AND WARRANTIES.

Without limiting any other provision of these Terms, Customer represents and warrants to NPG that (a) Customer has the power and authority to enter into and perform its obligations under the Customer Agreement, (b) Customer is not relying upon any statements, commitments, representations or warranties other than those expressly set forth in the Customer Agreement and Documentation, (c) Customer is a bona fide business and is procuring the Services for its own internal business use only and not as agent or on behalf of any third party, (d) Customer has not received or been offered any bribe, kickback or illegal or improper payment, gift or thing of value from any of NPG’s employees or agents in connection with the Customer Agreement or the Services and (E) Customer’s purchases of Services are not contingent on the delivery of any future functionality or features, except otherwise expressly provided in the Customer Agreement.

14. INDEMNIFICATION

14.1 BY CUSTOMER.

Customer agrees to defend NPG, its Affiliates and their respective Representatives from and against any action, claim, demand, suit, investigation, inquiry or proceeding (collectively, “Claims”) threatened or brought against NPG or any of its Affiliates or their respective Representatives by any third party that arises out of or results from (a) Content transmitted on the NPG Platform or (b) any actual or alleged (i) Customer Use in violation of applicable Laws or breach of any third-party contract terms to which Customer is subject or (ii) actions or omissions that would constitute a material breach of the Customer Agreement (including any breach of Section 10 (Use Restrictions and Customer Responsibilities) of these Terms), without regard to any notice or cure right hereunder. Customer agrees to indemnify and hold harmless NPG, its Affiliates and their Representatives against any damages, attorneys’ fees, defense costs and other losses (collectively, “Losses”) payable by NPG pursuant to the adjudication or settlement of, or otherwise incurred by NPG in connection with, any such Claims.

14.2 BY NPG.

NPG agrees to defend Customer, any Affiliate of Customer that has ordered Services under the Customer Agreement, and their respective Representatives from and against any Claims threatened or brought against Customer, such Affiliate or their Representatives by any third party alleging that the Services, when used in accordance with the Documentation, infringe or misappropriate any patent, trademark or copyright enforceable under the laws of the United States or other foreign countries. NPG agrees to indemnify and hold harmless Customer, such Affiliate and/or such Representatives against any Losses payable by them pursuant to the adjudication or settlement of, or otherwise incurred by Customer in connection with, any such Claims.

14.3 PROCEDURE.

An indemnified party shall (a) provide the indemnifying party prompt written notice of such Claim as soon as the indemnified party becomes aware of the Claim, (b) permit the indemnifying party to have sole and exclusive control over the defense and settlement of any such Claim, if it elects, and (c) provide reasonable assistance to the indemnifying party in connection therewith; provided, the indemnifying party shall not enter into any settlement agreement that would result in any payment or other obligation, or restriction on the business of, the indemnified party without its prior written consent.

15. LIMITATION OF LIABILITY

15.1 EXCLUSION OF CONSEQUENTIAL DAMAGES.

EXCEPT AS EXPRESSLY CONTEMPLATED BY SECTION 14, TO THE MAXIMUM EXTENT SUCH DAMAGES CAN BE EXCLUDED UNDER APPLICABLE LAW, NEITHER NPG, ITS AFFILIATES OR ANY OTHER NPG PARTNERS, NOR ANY OF THEIR REPRESENTATIVES, SHALL BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR COVER DAMAGES, LOSS OF PROFITS, REVENUES OR GOODWILL, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, OR DELAY IN PERFORMANCE, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, FROM OR IN CONNECTION WITH THE CUSTOMER AGREEMENT OR THE SERVICES PROVIDED THEREUNDER, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15.2 LIMITATION OF LIABILITY.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF NPG AND ITS AFFILIATES UNDER THE CUSTOMER AGREEMENT, OR ARISING OUT OF THE SERVICES PROVIDED THEREUNDER, TO ANY AND ALL PERSONS, WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY OR OTHERWISE, SHALL IN NO CASE EXCEED THE TOTAL AMOUNT OF TWELVE (12) MONTHS OF FEES PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES TO NPG AND ITS AFFILIATES FOR THE SERVICES PROVIDED HEREUNDER (EXCLUDING EQUIPMENT PURCHASES) DURING THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY (A) ON A CUMULATIVE BASIS (RATHER THAN PER INCIDENT), (B) REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) REGARDLESS OF WHETHER THE LIMITED REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

15.3 RELIANCE ON LIMITATIONS.

Customer acknowledges and agrees that the essential purpose of Sections 15.1 and 15.2 is to allocate the risks under the Customer Agreement between the parties and to limit NPG’s potential liability in light of the agreed-upon pricing for the Services, which would have been substantially higher if NPG were to assume the risk of Customer’s incidental or consequential damages, or other types of losses listed in Section 15.1, or the risk of liability in excess of the limit described above. NPG relied on these limitations when offering to provide the Services to Customer.

16. DISPUTES

16.1 GENERAL.

The provisions of this Section 16 shall apply to any and all Claims that either party may intend to assert against the other party, its Affiliates or any of their respective Representatives, other than (a) an injunction to prevent the disclosure or use of its Confidential Information, or a provisional remedy related to intellectual property infringement or misappropriation Claims, (b) disputes regarding Personal Data that are governed by procedures specified in the Privacy Policy, (c) Claims of NPG relating to Customer’s non-payment of undisputed charges and (d) Claims that the other party is required to defend under Section 14 (all other Claims are referred to as “Covered Claims”). For the avoidance of doubt, NPG remains responsible for the actions and omissions of its Affiliates and Representatives.

16.2. PREFILING NOTICE OF CLAIM.

Before either party initiates an arbitration, court or other action, suit or proceeding (a “Proceeding”) against the other party in respect of any Covered Claim, such party agrees to send a written notice describing in sufficient detail the specific issues in dispute (and referencing the specific portions of the Customer Agreement which are allegedly being breached, if applicable) and to work with the other party diligently and in good faith to attempt to resolve the dispute. Any such notice directed to NPG shall be sent to info@NPGSolutions.com. Within 30 days of such notice, the parties shall cooperate to ensure knowledgeable executives of each party hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute. If the parties fail to resolve the dispute within 30 days of such notice, either party may thereafter initiate a Proceeding in accordance with these Terms (and without satisfying any further notice or cure period hereunder). NEITHER PARTY SHALL COMMENCE A PROCEEDING UNLESS AND UNTIL IT HAS COMPLIED WITH THIS SECTION 16.2, AND THIS SECTION 16.2 MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO, AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY PROCEEDING INSTITUTED IN BREACH OF THIS SECTION.

16.3 TIME LIMITATION.

Customer agrees that regardless of any statute or law to the contrary, any litigation or arbitration arising out of or related to use of the Services or the Customer Agreement must be initiated through the filing of a complaint no later than one year after the earlier of (a) the date such claim or cause of action arose or (b) termination of the Customer Agreement, or be forever barred.

16.4 MANDATORY ARBITRATION (U.S. CLAIMS).

16.4.1 GENERAL. IF CUSTOMER IS DOMICILED IN THE UNITED STATES, OR THE COVERED CLAIMS RELATE TO SERVICES PROVIDED IN THE UNITED STATES, CUSTOMER AND NPG AGREE TO ARBITRATE ANY AND ALL SUCH COVERED CLAIMS IN ACCORDANCE WITH THIS SECTION 16.4. PLEASE READ THIS PROVISION CAREFULLY. This Section 16.4 shall not apply if Customer is domiciled outside the United States and Services are provided outside of the United States.

16.4.2 ADMINISTRATION; VENUE. CLAIMS SUBJECT TO THIS SECTION 16.4 SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY AMERICAN ARBITRATION ASSOCIATION (“AAA“). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services provided or billed to Customer if Claims are asserted against NPG in the same proceeding. Arbitration will be conducted under the AAA’s published commercial arbitration rules. Customer and NPG agree to bear their own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. The place of arbitration shall be Franklin County, Ohio U.S.A. The language of the arbitration shall be English.

17. MISCELLANEOUS

17.1 NOTICE.

Except as expressly stated otherwise in the Customer Agreement, any notice to be given under these Terms may be provided by e-mail, and each party hereby consents to receiving notice by e-mail. Either party may change its designated notice address by giving notice to the other party. Notices shall be deemed effective (a) upon personal delivery, (b) on the fifth business day after it is sent by regular mail, or (c) on the day it is sent by e-mail, if delivered on a business day before 5 pm Eastern Time, and otherwise on the next business day.

Customer’s address for notice shall be the e-mail address specified by Customer in connection with its initial order of Services, unless otherwise stated in a Service Agreement.

NPG’s e-mail address for all notices for any billing disputes under Section 3.5, notice of breach under Section 5.1 , notice of Claims under Section 16, or any other notices under these Terms is: info@NPGSolutions.com. NPG’s physical address for notice is NPG Solutions, Attn: Support Services, 8000 Walton Parkway, Ste. 200, New Albany, Ohio 43054.

17.2 GOVERNING LAW; EXCLUSIVE JURISDICTION.

These Terms and the Customer Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to its choice or conflicts of law rules. Subject to Section 16, Customer and NPG agree to submit to the jurisdiction of the state and federal courts within Franklin County, Ohio (which jurisdiction shall be exclusive if Customer is domiciled in the United States), and waive any objection as to venue or inconvenient forum in such courts.

17.3 SURVIVAL.

Sections 5, 6, 7, 14, 15, 16 and 17 shall survive the expiration or termination of the Customer Agreement, along with applicable provisions governing payment obligations and any other provision that by its terms would reasonably be expected to survive.

17.4 FORCE MAJEURE.

Except as otherwise expressly provided in the Customer Agreement, neither party shall be considered in breach of the Customer Agreement as the result of any failure or delay in the performance of such party’s obligations hereunder that is caused by or results from events beyond such party’s reasonable control, including, for example, acts of God (including fire, flood, hurricane, earthquake and tsunami), riot, war, terrorism, government actions and intervention, embargoes, strikes, destruction of facilities, late or failed delivery by suppliers, unavailability of power or Internet services, or network or carrier issues; provided, the foregoing shall not apply to either party’s payment obligations hereunder.

17.5 ENTIRE AGREEMENT.

These Terms (including all materials incorporated by reference herein) and the other documents comprising the Customer Agreement, together with any additional Documentation and Terms posted on www.NPGSolutions.com that apply to Customer’s Agreement, constitute the entire agreement between the parties with respect to the Services and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services.

17.6 CONFLICTS.

17.6.1 Order of Precedence. In the event of any conflict between (a) these Terms and the terms of a Service Order or Service Agreement, the terms of the Service Order or Service Agreement shall govern, except as otherwise expressly provided herein or (b) the Universal Terms and any Amendments shall govern.

17.6.2 Objection to Customer Terms. These Terms shall not be modified or superseded by the terms of any Service order or similar document delivered by Customer to NPG in connection with an order or use of Services unless the Service Agreement states otherwise. NPG HEREBY OBJECTS TO ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY PURCHASE ORDER OR SIMILAR DOCUMENT ISSUED BY CUSTOMER AT ANY TIME.

17.7 WAIVER.

The failure of either party to exercise or enforce any right or remedy under the Customer Agreement shall not constitute a waiver of such right or remedy, except as expressly provided herein. Except as provided in Sections 3.5 and 11, no waiver or amendment to any provision of the Customer Agreement shall be enforceable against a party unless it is in writing and otherwise conforms to the requirements of these Terms.

17.8 SEVERABILITY.

If any provision of the Customer Agreement and Terms and Conditions is found by a court of competent jurisdiction to be invalid or unenforceable in whole or in part, such provision shall, as to such jurisdiction, be ineffective to the extent such invalid or unenforceable provision without in any manner affecting the validity or enforceable nature thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction. However, if such invalid or unenforceable provision may be modified so as to be enforceable as a matter of Law, such provision of the Customer Agreement shall be deemed amended to the extent necessary to render its terms valid, and, insofar as possible, consistent with the original intent of the parties.

17.9 ASSIGNMENT; BINDING EFFECT.

This Agreement shall be binding upon the heirs, successors, and permitted assigns of NPG and Customer. Customer shall not assign the Customer Agreement or delegate its obligations thereunder without NPG’s prior written consent, except that no such consent shall be required in connection with a bona fide sale of Customer or substantially all of its assets to a third party as long as NPG receives notice at least 10 days prior to such an assignment. If Customer proposes to assign its rights or delegate its obligations under the Customer Agreement to an Affiliate, Customer shall provide such information and documentation concerning the Affiliate as NPG may reasonably request, and Customer shall remain jointly liable for the obligations of such Affiliate. Without limiting the foregoing and for avoidance of doubt, NPG may assign its rights and delegate its obligations under the Customer Agreement, in part or in full, to one or Affiliates, and/or subcontract with such Affiliates, for the performance or delivery of Services.

17.10 AFFILIATES.

If NPG permits an Affiliate of Customer to order Services under the Customer Agreement, references to “Customer” in these Terms shall be deemed to include such Customer Affiliate. Customer shall be jointly liable for the actions and omissions of such Affiliate under the Customer Agreement such Affiliate under the Customer Agreement.

To provide Services requested by Customer in certain jurisdictions, NPG may designate an Affiliate to enter into one or more Service Orders with Customer. Any such Service Order shall be subject to these Terms and the Customer Agreement generally, and references to “NPG” hereunder shall be deemed to include such NPG Affiliate. The NPG Affiliate shall be deemed the service-provider for all purposes under any such Service Order, but NPG shall remain jointly liable for the actions and omissions of such Affiliate under the Customer Agreement.

17.11 NO THIRD-PARTY BENEFICIARIES.

Except as expressly stated herein, these Terms are intended for the sole benefit of, and shall only be enforceable by, each party and its permitted assigns. Without limiting the foregoing, NPG shall have no obligation or liability hereunder to any Agent or other end user of the Services that is not a direct customer of NPG.

17.12 DOCUMENT ACCEPTANCE AND SIGNATURE.

A Service Order, SOW or similar document setting forth a Service proposal that has been prepared by NPG and sent to Customer for acceptance shall be deemed accepted, and shall become effective and legally binding on both parties, when an authorized representative of Customer (or an individual that NPG reasonably believes to be such) manifests its assent in the manner indicated by the document (for example, by signature or if applicable “click to accept”). Notwithstanding the foregoing, a quotation or Service Order attached as an Exhibit to a Service Agreement shall become effective as a Service Order when the parties enter into the Service Agreement, without any further Customer acceptance. If available for use and agreeable by both parties, the use of E-Signatures, or any other legally acceptable method of verifiable electronic signature and delivery, shall be a valid method for signature and delivery of all documents hereunder.

17.13 INTERPRETATIONS.

The headings in the Customer Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of the Customer Agreement. References to an NPG web address (URL) shall be deemed to include (a) any subpages that are accessible through one or a series of clearly-labelled hyperlinks and (b) such successor websites as may be designated by NPG. The word “include” and its variants shall be interpreted as if followed by the words “without limitation.” The word “person” shall mean an individual or a corporation, company, partnership, organization, association or other legal entity.

17.14 EXTERNAL LINKS

The NPG Platform or NPG Website may contain links to third-party websites or resources. Customer acknowledges and agrees that NPG is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by NPG of such websites or resources or the content, products or services available from such websites or resources. Customer acknowledges sole responsibility for and assumes all risk arising from the use of any such external websites or resources.

18. DEFINITIONS

The proceeding terms, when used within these Terms, shall have the meanings indicated as follows:

NPG Platform  means the Platform Services and any software applications, functionalities, APIs, tools, interfaces and Documentation provided by NPG in connection therewith.

Affiliate means, with respect to a person, any entity that directly or indirectly controls, is controlled by, or is under common control with such person.

Agent means an individual authorized to use a Service through Customer’s account (as an agent, administrator or otherwise), as identified through a unique login.

Customer Agreement means the agreement between NPG and Customer in respect of Customer’s acquisition and use of Services which includes (for example) these Terms, the Service Agreement (if applicable), and all Service Orders and SOWs entered into by the parties.

Customer Data means any of the following data and information provided by Customer, or collected or obtained in connection with, Customer’s acquisition or use of the NPG Platform: (a) Content; (b) Profile and Registration Information; (c) information stored in customer portal, support, billing and similar records and databases used by NPG or its Affiliates or subcontractors; (d) Customer asset and/or inventory information and similar records; or (e) other data concerning Customer’s use of the NPG Platform.

Customer Location means a location for which Customer has ordered Services, as identified by a physical address specified in the Customer Agreement.

Documentation means user information technology documentation relating to the Services , which NPG makes available to its customers from time to time (whether by posting to www.NPGSolutions.com, sending in electronic form or otherwise), but in all cases excluding marketing and promotional materials.

Implementation Services means work performed and other services provided by NPG with the implementation of Third-Party related  Services as part of NPG’s Professional Services offerings (such as project management, provisioning and deployment of IT related services).

Non-NPG Applications means online Web-based applications or services and offline software products that may interoperate with NPG’s  Platform Service but are not sold or provided by NPG.

Personal Data means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular, by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity; and includes “personal data” within the meaning of any relevant Amendment.

Professional Services means work performed for Customer by NPG or an Affiliate or subcontractor of NPG that is outside the scope of a Managed Services ordered by Customer (Such as Savings Engagements).

Services means products and services provided by NPG to customers, including (for example) Platform Services, Managed Services, Support Services, Professional Services and training, but excluding Third-Party Services.

Service Agreement means a written contractual document between Customer and NPG which defines the terms and conditions pursuant to which Customer may order and/or use Services from time to time, which contract may also include the initial Service Order.

Service Fees means the base recurring fees that NPG charges Customer for services performed or for access to and use of a Platform Service (exclusive of Taxes, Usage charges and Regulatory Fees).

Service Order or Order Form  means a written order for Services agreed upon between NPG and Customer.

Support Services means any general customer and/or technical support services that NPG agrees to provide to Customer as set forth in these Terms.

Term means the Initial Term or any Renewal Term, as applicable.

Website means a location connected to the Internet that maintains one or more pages on the World Wide Web (i.e. NPG’s Website).