Terms Of Services

· CUSTOMER AND PERSONAL DATA

4.1 Customer Data. Customer is responsible for the Customer Data and entering it into the Services. Customer grants to NPS Desk (including NPS Desk’s Affiliates and subcontractors) a nonexclusive right to process and use Customer Data to provide and support the Services and as set out in the Agreement.

4.2 Personal Data. Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.

4.3 Security. Customer will maintain reasonable security standards for its Authorized Users’ use of the Services. Customer will not conduct or authorize penetration tests of the Services without advance approval from NPS Desk.

4.4 Access to Customer Data.

(a) During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case NPS Desk and Customer will find a reasonable method to allow Customer access to Customer Data.

(b) Before the Subscription Term expires, if available, Customer may use NPS Desk’s self-service export tools to perform a final export of Customer Data from the Services. Alternatively, if self-service export tools are unavailable, Customer may request data export through support ticket.

(c) After the end of the Agreement, NPS Desk will delete the Customer Data remaining on servers hosting the Services unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.

(d) In the event of third party legal proceedings relating to the Customer Data, NPS Desk will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.

· FEES AND TAXES

5.1 Fees and Payment. Customer will pay fees as stated in the Order Form. If Customer does not pay fees in accordance with the terms of the Agreement, then, after prior written notice, NPS Desk may suspend Customer’s use of the applicable Services until payment is made. Any fees not paid when due shall accrue interest at the maximum legal rate. Purchase orders are for administrative convenience only. NPS Desk may issue an invoice and collect payment without a corresponding purchase order. Customer will not withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term. All Order Forms are non-cancellable. All fees are non-refundable except as set forth in Sections 6.3 and 7.4.

5.2 Taxes. Customer will pay fees as stated in the Order Form. If Customer does not pay fees Fees and other charges imposed under an Order Form will not include Taxes, all of which will be for Customer’s account. Customer is responsible for all Taxes. Customer must provide to NPS Desk any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If NPS Desk is required to pay Taxes, Customer will reimburse NPS Desk for those amounts and related costs paid or payable by NPS Desk attributable to those Taxes.

· TERM AND TERMINATION

6.1 Term. CThe Subscription Term is as stated in the Order Form.

6.2 Termination. A party may terminate the Agreement:

(a) upon 30 days’ prior written notice of the other party’s material breach of the Agreement unless the breach is cured during that 30-day period,

(b) as permitted under Sections 3.4(b), 7.3(b), 8.1(c), or 12.4 (with termination effective 30 days after receipt of notice in each of these cases), or

(c) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 12.6.

6.3 Refund and Payments. For termination by Customer or an 8.1(c) or 12.4 termination, Customer will be entitled to:

a) a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination (unless such refund is prohibited by Export Laws), and

(b) a release from the obligation to pay fees due for periods after the effective date of termination.

6.4 Effect of Expiration or Termination. Upon the effective date of expiration or termination of the Agreement:

(a) Customer’s right to use the Services and all NPS Desk Confidential Information will end,

(b) Confidential Information of the disclosing party will be retained, returned, or destroyed as required by the Agreement or applicable law, and

(c) termination or expiration of the Agreement does not affect other agreements between the parties.

6.5 Survival. Sections 1, 5, 6.3, 6.4, 6.5, 8, 9, 10, 11, and 12 will survive the expiration or termination of the Agreement.

· WARRANTIES
7.1 Compliance with Law. Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:

(a) in the case of NPS Desk, the operation of NPS Desk’s business as it relates to the Services, and

(b) in the case of Customer, the Customer Data and Customer’s use of the Services.

7.2 Good Industry Practices. NPS Desk warrants that it will provide the Services:

(a) in substantial conformance with the Documentation; and

(b) with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Services.

7.3 Remedy. Customer’s sole and exclusive remedies and NPS Desk’s entire liability for breach of the warranty under Section 7.2 will be:

(a) the correction of the deficient Services, and

(b) if NPS Desk fails to correct the deficient Services, Customer may terminate its subscription for the affected Services and receive a refund as set forth in Section 6.3. Any termination must occur within three months after NPS Desk’s failure to correct the deficient Services.

7.4 Warranty Exclusions. The warranties in Section 7.2 will not apply if:

(a) the Services is not used in accordance with the Agreement or Documentation,

(b) any non-conformity is caused by Customer, or by any product or service not provided by NPS Desk, or

(c) the Services was provided for no fee.

7.5 Disclaimer. The warranties in Section 7.2 will not apply if:

Except as expressly provided in the Agreement, neither NPS Desk nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of NPS Desk or product roadmaps in obtaining subscriptions for any Services.

· THIRD PARTY CLAIMS
8.1 Claims Brought Against Customer.

(a) NPS Desk will defend and indemnify (as set forth in the next sentence) Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s or its Affiliates’ use of the Services infringes or misappropriates a patent claim, copyright, or trade secret right. NPS Desk will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement NPS Desk enters into) with respect to these claims.

(b) NPS Desk’s obligations under Section 8.1 will not apply if the claim results from (i) use of the Services not permitted under the Agreement, (ii) use of the Services in conjunction with any product or service not provided by NPS Desk, or (iii) use of the Services provided for no fee.

(c) If a third party makes a claim or in NPS Desk’s reasonable opinion is likely to make such a claim, NPS Desk may at its sole option and expense (i) procure for Customer the right to continue using the Services under the terms of the Agreement, or (ii) replace or modify the Services to be non-infringing without a material decrease in functionality. If these options are not reasonably available, NPS Desk or Customer may terminate Customer’s subscription to the affected Services upon written notice to the other and Customer may receive a refund as set forth in Section 6.3.

8.2 Claims Brought Against NPS Desk. Customer will defend and indemnify (as set forth in the next sentence) NPS Desk against claims brought against NPS Desk and its Affiliates and subcontractors by any third party related to Customer Data. Customer will indemnify NPS Desk against all damages finally awarded against NPS Desk and its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
8.3 Third Party Claim Procedure. All third party claims under Section 8 shall be conducted as follows:

(a) The party against whom a third party claim is brought (the “Indemnified Party”) will timely notify the other party (the “Indemnifying Party”) in writing of any claim. The Indemnified Party will reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the Indemnifying Party subject to Section 8.3(b).

(b) The Indemnifying Party will have the right to fully control the defense.

(c) Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the Indemnified Party.

(d) The Indemnifying Party’s obligations will not apply if the Indemnified Party’s failure to timely notify the Indemnifying Party in writing of any such claim prejudices the Indemnifying Party.

8.4 Exclusive Remedy. The provisions of Section 8 state the sole, exclusive, and entire liability of the parties and their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.
· LIMITATION OF LIABILITY
9.1 Unlimited Liability. Neither party’s liability is capped for damages resulting from:

(a) the parties’ obligations under Section 8.1(a) and 8.2,

(b) death or bodily injury arising from either party’s gross negligence or willful misconduct, or

(c) Customer’s unauthorized use of any Services or any failure by Customer to pay any fees due under the Agreement.

9.2 Liability Cap. Except as set forth in Section 9.1, the maximum aggregate liability of either party (or its respective Affiliates or NPS Desk’s subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any 12-month period will not exceed the annual fees paid for the applicable Services or Professional Service associated with the damages for that 12-month period. Any “12-month period” commences on the Subscription Term start date or any of its yearly anniversaries.
9.3 Exclusion of Damages. . In no case will:

(a) either party (or its respective Affiliates or NPS Desk’s subcontractors) be liable to the other party for any special, incidental, consequential, or indirect damages, loss of goodwill or business profits, work stoppage or for exemplary or punitive damages; or

(b) NPS Desk be liable for any damages caused by any Services provided for no fee.

· INTELLECTUAL PROPERTY RIGHTS
10.1 NPS DESK Ownership.Except for any rights expressly granted to Customer under the Agreement, NPS Desk, NPS Desk’s Affiliates or licensors own all intellectual property rights in and related to the Services, Cloud Materials, Documentation, Professional Services, design contributions, related knowledge or processes, and any derivative works of them.
10.2 Customer Ownership. Customer retains all rights in and related to the Customer Data. NPS Desk may use Customer-provided trademarks solely to provide and support the Services.
· CONFIDENTIALITY
11.1 Use of Confidential Information.
(a) The receiving party shall:

(1) maintain all Confidential Information of the disclosing party in strict confidence, taking steps to protect the disclosing party's Confidential Information substantially similar to those steps that the receiving party takes to protect its own Confidential Information, which shall not be less than a reasonable standard of care;

(2) not disclose any Confidential Information of the disclosing party to any person other than its Representatives whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11;

(3) not use or reproduce any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement; and

(4) retain any and all confidential, internal, or proprietary notices or legends that appear on the original and on any reproductions.

(b) Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 11.

(c) The receiving party may disclose the disclosing party's Confidential Information to the extent required by law, regulation, court order, or regulatory agency, on the condition that the receiving party required to make such a disclosure uses reasonable efforts to give the disclosing party reasonable prior notice of such required disclosure (to the extent legally permitted) and provides reasonable assistance in contesting the required disclosure, at the request and cost of the disclosing party. The receiving party and its Representatives shall use commercially reasonable efforts to disclose only that portion of the Confidential Information that is legally requested to be disclosed and shall request that all Confidential Information that is so disclosed is accorded confidential treatment.

11.2 Exceptions.
The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:

(a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,

(b) has become generally known or available to the public through no act or omission by the receiving party,

(d) is lawfully acquired free of restriction by the receiving party from a third party having the right to furnish such Confidential Information, or

(e) the disclosing party agrees in writing is free of confidentiality restrictions.

· MISCELLANEOUS
12.1 Severability.If any provision of the Agreement is held to be wholly or in part invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
12.2 No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
12.3 Counterparts. The Agreement may be signed in counterparts, each of which is an original and together constitute one Agreement. Electronic signatures that comply with applicable law are deemed original signatures.
12.4 Trade Compliance. The Agreement may be signed in counterparts, each of which is an original and together constitute one Agreement. Electronic signatures that comply with applicable law are deemed original signatures.
11.2 Exceptions.

(a) NPS Desk and Customer shall comply with Export Laws in the performance of this Agreement. NPS Desk’s Confidential Information is subject to Export Laws. Customer shall not directly or indirectly export, re-export, release, or transfer Confidential Information in violation of Export Laws. Customer is solely responsible for compliance with Export Laws related to Customer Data, including obtaining any required export authorizations for Customer Data. Customer shall not use the Services from Cuba, Iran, the People's Republic of Korea (North Korea), Syria, Donetsk People's Republic (DNR), Luhansk People's Republic (LNR), or Crimea/Sevastopol regions.

(b) Upon NPS Desk’s request, Customer shall provide information and documents to support obtaining an export authorization. Upon written notice to Customer, NPS Desk may immediately terminate Customer’s subscription to the affected Services if:

(1) the competent authority does not grant such export authorization within 18 months; or

(2) Export Laws prohibit NPS Desk from providing the Services or Professional Services to Customer.

(d) is lawfully acquired free of restriction by the receiving party from a third party having the right to furnish such Confidential Information, or

(e) the disclosing party agrees in writing is free of confidentiality restrictions.

12.5 Notices. All notices will be in writing and given when delivered to the address set forth in an Order Form. Notices from NPS Desk to Customer may be in the form of an electronic notice to Customer’s authorized representative or administrator. NPS Desk may provide system notifications and information relating to the operation, hosting, or support of the Services within the Services or make such notifications available via the NPS Desk support portal. Customer shall maintain up-to-date notice contact information within the Services.
12.6 Assignment. Without NPS Desk’s prior written consent, Customer may not assign, delegate, or transfer the Agreement (or any of its rights or obligations) to any party. NPS Desk may assign the Agreement to NPS Desk’s Affiliates.
12.7 Subcontracting. NPS Desk may subcontract parts of the Services or Professional Services to third parties. NPS Desk is responsible for breaches of the Agreement caused by its subcontractors.
12.8 Relationship of the Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
12.9 Force Majeure. Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
12.10 Governing Law.The Agreement and any claims arising out of or in connection with this Agreement and its subject matter will be governed by and construed under the laws of the Bangladesh, without reference to its conflicts of law principles. The parties submit to the exclusive jurisdiction of the courts located in Salt Lake City, Utah. The parties waive any objections to the venue or jurisdictions identified in this provision. The mandatory, sole and exclusive venue, place or forum for any disputes arising from the Agreement (including any dispute regarding the existence, validity or termination of the Agreement) shall be Salt Lake City, Utah. Each party waives any right it may have to a jury trial for any claim or cause of action arising out of or in relation to the Agreement. Each party waives any right it may have to a jury trial for any claim or cause of action in relation to the Agreement. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
12.11 Entire Agreement. The Agreement constitutes the complete and exclusive statement of the agreement between NPS Desk and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under the Agreement. Terms and conditions of any Customer-issued purchase order will have no force and effect, even if NPS Desk accepts or does not otherwise reject the purchase order.
12.12 Feedback. Customer may at its sole discretion provide NPS Desk with Feedback, in which case, NPS Desk Affiliates may retain and freely use such Feedback without restriction, compensation, or attribution to the source of the Feedback.
12.13 Data Processing Agreement. The DPA will govern the processing of any personal data in the Services.