Cloud Terms of Service
CLOUD TERMS OF SERVICE between NonProfit Technologies, Inc. (“we” or “NPT”) and the customer who orders NonProfit Technologies, Inc. services (“you” or “Customer”).
THE AGREEMENT. Your use of the NPT cloud services is governed by these Cloud Terms of Service which includes the Country Specific Terms at Schedule 1, the Cloud Acceptable Use Policy, and the terms of your Order. Your Order may have additional terms that apply to the particular services in your Order. When we use the term “Agreement” in any of the Order, Cloud Terms of Service or Acceptable Use Policy we are referring collectively to all of them, including any product specific terms that apply to the NPT cloud services. Schedule 1 of these Cloud Terms of Service details additional terms which are specific to the country in which your NPT cloud services are hosted. Your use of the NPT cloud services includes the ability to enter into agreements and make purchases electronically. You acknowledge that your electronic assent constitutes your acceptance to the Agreement for each electronic purchase or transaction you enter.
If you are entering into this Agreement for an entity, such as the company you work for, you warrant and represent to us that you have the legal authority to bind that entity to this Agreement.
1. DEFINED TERMS
2. NPT’s OBLIGATIONS
3. YOUR OBLIGATIONS
4. ACCESS TO THE SERVICES
5. SERVICE LEVEL AGREEMENTS
8. TAXES ON SERVICES
9. FEE INCREASES
11. TERMINATION FOR CONVENIENCE
12. TERMINATION FOR BREACH
13. ACCESS TO DATA
14. ACCESS TO YOUR CUSTOMER DATA OR USE OF THE SERVICES
15. PROMISES WE DO NOT MAKE
16. EXPORT MATTERS
17. CONFIDENTIAL INFORMATION
18. LIMITATION ON DAMAGES
20. WHO MAY USE THE SERVICES
22. OWNERSHIP OF INTELLECTUAL PROPERTY
23. OWNERSHIP OF OTHER PROPERTY
24. INTELLECTUAL PROPERTY INFRINGEMENT
25. IP ADDRESSES
26. SERVICES MANAGEMENT AGENT
29. SERVICES PROVIDED BY THIRD PARTIES
30. FORCE MAJEURE
31. GOVERNING LAW AND JURISDICTIOM
32. SOME AGREEMENT MECHANICS
SCHEDULE 1: COUNTRY SPECIFIC TERMS
- DEFINED TERMS.
Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Acceptable Use Policy set out at http://cpaz-cloudhosting.com/acceptable-use-policy/as of the date you submit the Order.
“Affiliate” means any and all legal entities which now or hereafter the ultimate parent of a party to this Agreement controls. For the purpose of this definition, “control” shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity.
“API” means application programming interface.
“Business Day” or “Business Hour” means 9:00 a.m. – 7:00 p.m. Monday to Friday Eastern Time, excluding public holidays in the location where the Services are hosted, as per the Order.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, non-public information of the parties relating to their business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through breach of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Country Specific Terms” means those terms listed at Schedule 1;
“Customer Data” means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Services.
“Hosted System” means a combination of hardware, software and networking elements that comprise an information technology system.
“Order” means: (i) the online order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by NPT for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and (iii) your use or provisioning of the Services through the NPT customer portal.
“Personally Identifiable Information” or “PII” means a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as a combination of the individual’s name, address, or phone number with the individual’s social security number or other government issued number, financial account number, date of birth, address, biometric data or mother’s maiden name.
“Services” means the software and services described in the Order and includes any services which you self-provision through the NPT customer portal or which you utilize via an API.
“Support” means (i) NPT employees with training and experience relative to the Services will be available ‘live’ by telephone and e-mail Monday through Friday from 8am ET to 8pm ET, year round, and (ii) any additional level of support offered by NPT applicable to the specific Services ordered by you.
2. NPT’s OBLIGATIONS.
NPT’s obligations to begin providing to you the Services and Support described in your Order is contingent on your satisfaction of NPT’s credit approval criteria and subject to these Cloud Terms of Service. NPT will maintain security practices that are at least as stringent, in NPT’s reasonable judgment, as those described in the Country Specific Terms.
3. YOUR OBLIGATIONS.
You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy, (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in connection with your use of the Services, including encrypting any PII transmitted to and from, and while stored on, the Services (including the underlying servers and devices), (iv) cooperate with NPT’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date via the online NPT customer portal, and (vi) immediately notify NPT of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, NPT’s reasonable determination shall control. If there is a dispute with respect to any portion of an invoice, you shall pay the undisputed portion of the fees promptly and provide written details specifying the basis of any dispute. Each of us agrees to work together to promptly resolve any disputes.
Customer Data Security: You must maintain the security of your login credentials and may not share login credentials except as required to establish and authorize users in your account. You are responsible for designating authorized users under your account and limiting access of login credentials associated with your account.
4. ACCESS TO THE SERVICES.
You may access the Services via the online NPT customer portal, via RemoteAPP webfeed provided to you, or via a private URL provided to you.
5. SERVICE LEVEL AGREEMENTS.
The Service Level Agreement(s) listed in the Country Specific Terms are part of this Agreement for those Services you are buying. http://cpaz-cloudhosting.com/service-level-agreement/
The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one (1) month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one (1) month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow NPT’s non-renewal process accessible from the NPT customer portal to give effective notice of non-renewal.
NPT will charge you and you agree to pay when due the fees for the Services in accordance with your Order. Unless you have made other arrangements, NPT will charge your credit card. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that NPT first makes the Services available to you. NPT may suspend all Services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. NPT may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and NPT brings a legal action to collect, or engages a collection agency, you must also pay NPT’s reasonable costs of collection, including legal fees and court costs. Unless stated otherwise, fees are stated and will be charged in the same currency as per your Order. Any “credit” that we may owe you, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund. If there is a dispute with respect to any portion of an invoice, you shall pay the undisputed portion of the fees promptly and provide written details specifying the basis of any dispute. Each of us agrees to work together to promptly resolve any disputes. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You authorize NPT to obtain a credit report at any time during the term of the Agreement.
8. TAXES ON SERVICES.
Any and all prices applicable to the services that NPT provides to its customers are exclusive of taxes. If NPT is required by law to collect taxes on the provision of the Services, you must pay NPT the amount of the tax that is due or provide NPT with satisfactory evidence of your exemption from the tax. You must provide NPT with accurate factual information to help NPT determine if any tax is due with respect to the provision of the Services.
9. FEE INCREASES.
For those Services provided on a month-to-month term, we may increase fees at any time on thirty (30) days’ advance written notice. If your Order contains Services with a specified term longer than one (1) month, then we may increase your fees effective as of the first day of the renewal term that begins thirty (30) days from the day of our written notice of a fee increase.
10.1 We may suspend the Services without liability if:
10.1.1 we reasonably believe that the Services are being used (or have been or will be used) in breach of the Agreement;
10.1.2 we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past;
10.1.3 you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement;
10.1.4 we reasonably believe that the Services have been accessed or manipulated by a third party without your consent;
10.1.5 we reasonably believe that suspension of the Services is necessary to protect our network or our customers;
10.1.6 a payment for Services is overdue for more than 45 days;
10.1.7 we are required by law or a regulatory or government body to suspend your Services; or
10.1.8 there is another event for which we reasonably believe that the suspension of Services is necessary to protect the NPT network or our other customers.
10.2 We will give you advance notice of a suspension under this clause of at least two (2) Business Days unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect NPT or its other customers from imminent and significant operational, legal, or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (at our discretion) upon reinstatement of the Services. If your Services are compromised, then you must address the vulnerability prior to NPT placing the Services back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a supplementary service.
11. TERMINATION FOR CONVENIENCE.
You may terminate the Agreement for convenience at any time provided that any recurring or minimum fees for the month in which you terminate remain due and payable for such month. You must follow NPT’s non-renewal process accessible via the customer portal in order to give an effective notice of termination.
12. TERMINATION FOR BREACH.
12.1 You may terminate the Agreement on written notice for breach if we:
12.1.1. materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure; or
12.1.2. materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
12.2 We may terminate the Agreement on written notice for breach if:
12.2.1. we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete;
12.2.2. you did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer;
12.2.3. your payment of any invoiced amount is overdue and you do not pay the overdue amount within ten (10) Business Days of our written notice;
12.2.4 you have made payment arrangements via credit card or other third party, and the third party refuses to honor our charges;
12.2.5. you fail to comply with any other obligation stated in the Agreement and do not remedy the failure within thirty (30) days of our written notice to you describing the failure;
12.2.6. you breach the AUP more than once even if you remedy each breach;
12.2.7 a credit report indicates that you no longer meet our reasonable credit criteria, provided that we will give you a reasonable opportunity to migrate your environment out of NPT in an orderly fashion before we terminate on these grounds;
12.2.8 you use the Services in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice; or
12.2.9. your agreement for any other NPT service is terminated for breach of the acceptable use policy applicable to that service.
12.3 Either of us may terminate the Agreement if the other is unable to pay its debts or enters into liquidation or ceases for any reason to carry on business or takes or suffers any action which means that it may be unable to pay its debts.
13. ACCESS TO DATA.
13.1 You will not have access to your data stored on the Services during a suspension or following termination. Database backup files delivered via out secure website will continue to be available for 5 days following termination if your subscription includes this optional service.
14. ACCESS TO YOUR CUSTOMER DATA OR USE OF THE SERVICES.
14.1 NPT is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from NPT’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
14.2 NPT agrees that it will not use or disclose Customer Data, except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. NPT agrees not to disclose the Customer Data to any third person except as follows:
14.2.1 to a law enforcement or government agency if requested or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law;
14.2.2 as required by law; or
14.2.3 in response to a court order or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Customer Data under this subsection (or prompt notice in advance of disclosure, if seven (7) days’ advance notice is not reasonably feasible), unless the law forbids such notice.
14.3 Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
15. PROMISES WE DO NOT MAKE.
15.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information, and property. NPT has no obligation to provide security other than as stated in this Agreement or applicable Order. We disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including the implied warranties relating to satisfactory quality and fitness for a particular purpose. You are solely responsible for the suitability of the Service chosen, including the suitability as it relates to your Customer Data and the security of your Hosted System. The Services are provided AS IS subject to any applicable Service Level Agreement (as described at Section 5 (Service Level Agreements) above). Any services that we are not contractually obligated to provide but that we may perform for you at your request and without additional charge is provided AS IS.
15.2 Some of the services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those services in a manner that complies with the applicable requirements.
15.3 You are solely responsible for determining the suitability of the Services for your use in light of any applicable regulations such as data privacy laws and data protection regulations.
16. EXPORT MATTERS.
You represent and warrant that you are not located in or a national of any country that is embargoed or highly restricted under export regulations or are otherwise a person to whom NPT is legally prohibited to provide the Services. You represent and warrant and undertake that you will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any information or technical data provided by NPT to you under this Agreement in any manner which would cause NPT or its Affiliates to breach any applicable export control laws, rules, or regulations of any jurisdiction (including without limitation those under US law). Without limitation, you represent and warrant and undertake that you will not provide or facilitate administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under applicable export laws, rules or regulations, including but not limited to United States export regulations.
17. CONFIDENTIAL INFORMATION.
17.1 Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
17.1.1 to each of our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these Cloud Terms of Service;
17.1.2 to a law enforcement or government agency if requested or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law;
17.1.3 as required by law; or
17.1.4 in response to a court order or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days’ advance notice is not reasonably feasible), unless the law forbids such notice.
18. LIMITATION ON DAMAGES.
18.1 Subject to clause 18.2, but without prejudice to your right to service credits under the applicable Service Level Agreement:
18.1.1 the maximum aggregate liability of NPT for direct loss or damages whether in tort (including, without limitation, negligence), contract or otherwise in connection with the Services shall not exceed the greater of (i) the amount of fees you paid for the Services for the six (6) months prior to the occurrence of the event giving rise to the claim, or (ii) Five hundred dollars ($500.00) or the equivalent sum in the currency applicable to your Order.
18.1.2 neither of us (nor any of our employees, agents, Affiliates, or suppliers) shall be liable to the other for:
18.104.22.168 any indirect, special, incidental or consequential loss or damages of any kind;
22.214.171.124 any loss of profit;
126.96.36.199 any loss of business;
188.8.131.52 any loss of data;
184.108.40.206 any anticipated savings or revenue; or
220.127.116.11 any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages.
18.2 Nothing in this Agreement limits or excludes either party’s liability for any loss or damages resulting from:
18.2.1 death or personal injury caused by its negligence;
18.2.2 any fraud or fraudulent misrepresentation; and
18.2.3 any claims identified in the applicable Country Specific Terms.
18.3 Unless otherwise provided in the applicable Country Specific Terms, the service credits stated in the Service Level Agreement are your exclusive remedy for NPT’s failure to meet the guarantees for which service credits apply.
19.1 If we, our Affiliates, or any of our or their respective employees, agents, or suppliers (the “Indemnitees”) are faced with a legal claim by a third party arising out of your actual or alleged negligence, breach of law, failure to meet the security obligations required by the Agreement, breach of the AUP, breach of your agreement with your customers or end users, or breach of Section 16 (Export Matters) of these Cloud Terms of Service, then you will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine, or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this clause include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. You must also pay reasonable legal fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with NPT, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
19.2 We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defence of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld, delayed or conditioned.
You must pay reasonable legal fees and expenses due under this clause as we incur them.
20. WHO MAY USE THE SERVICES.
You may resell the Services, except as provided below or otherwise restricted by NPT. If you resell Services you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. There are no third party beneficiaries to the Agreement, meaning that your customers, subsidiaries, Affiliates, and other third parties do not have any rights against either of us under the Agreement.
Your routine communications regarding the Services, including any notice of non-renewal, should be sent to your NPT Cloud account team using your NPT customer portal. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first-class post to:
NonProfit Technologies, Inc., 631 N. US Highway 1, Suite 101, North Palm Beach, FL 33408
NPT’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, first class post, or overnight courier, except that NPT may give notice of an amendment to the AUP by posting the notice on the NPT customer portal. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined above, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to the NPT customer portal after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
22. OWNERSHIP OF INTELLECTUAL PROPERTY.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by NPT during the performance of the Services shall belong to NPT unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
23. OWNERSHIP OF OTHER PROPERTY.
You do not acquire any ownership interest in or right to possess the Hosted System, and you have no right of physical access to the Hosted System. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your NPT servers or other devices or media.
24. INTELLECTUAL PROPERTY INFRINGEMENT.
If NPT or any of its customers is faced with a credible claim that the Services infringe the intellectual property rights of a third party, and NPT is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then NPT may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
25. IP ADDRESSES.
Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by NPT in connection with Services, including pointing the DNS for your domain name(s) away from NPT Services. You agree that NPT may, as it determines necessary, make modifications to DNS records and zones on NPT managed or operated DNS servers and services.
26. SERVICES MANAGEMENT AGENT.
You agree that you will not interfere with any services management software agent(s) that NPT installs on your Services. NPT agrees that its agents will use only a minimal amount of computing resources, and will not interfere with your use of the Services. NPT will use the agents to track system information so that it can more efficiently manage various service issues. You agree that NPT may access your Services to reinstall services management software agents if you disable them or interfere with their performance.
Neither party may assign the Agreement without the prior written consent of the other party except that NPT may assign the Agreement to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a bona fide corporate reorganisation or a sale of its business. NPT may use third party service providers to perform all or any part of the Services, but NPT remains responsible to you under this Agreement for Services performed by its third party service providers to the same extent as if NPT performed the Services itself.
You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases. We will not use your name or logo in a manner that suggests an endorsement or affiliation.
29. SERVICES PROVIDED BY THIRD PARTIES
NPT personnel may from time to time recommend third-party software or other products and services for your consideration and may also make available to you third-party products or services, including third-party applications through deployment or implementation tools. NPT MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM NPT. Your use of any such third-party products and services is governed by the terms of your agreement with the provider of those products and services.
30. FORCE MAJEURE.
Neither of us will be in breach of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
31. GOVERNING LAW AND JURISDICTION
31.1 Unless otherwise agreed, this Agreement is governed by the law and jurisdiction according to the following:
31.1.1 If your primary address is located in any country other than the United States of America, the governing law described in Part B of the Country Specific Terms.
31.1.2 If your primary address is in the United States of America, the governing law described in Part A of the Country Specific Terms.
32. SOME AGREEMENT MECHANICS.
32.1 Changes to the Terms on Website. These Cloud Terms of Service may have been incorporated in your Order by reference to a page on the NPT website. Although we may from time to time revise the Cloud Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Cloud Terms of Service posted on the effective date of the Order until the earlier of (i) your acceptance of any amended Cloud Terms of Service, (ii) your continued use of the Services after notice of any amended Terms of Service, or (iii) thirty days after the date NPT posts amended Terms of Service on the NPT website. In addition, if over time you sign multiple Orders for a single account, then the Cloud Terms of Service incorporated into the latest Order posted on the effective date of the latest Order will govern the entire account. NPT may accept or reject any Order you submit in its sole discretion. NPT’s provisioning of the Services described in an Order shall be NPT’s acceptance of the Order.
32.2 Modifications. An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, which includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
32.3 The Agreement constitutes the complete and exclusive agreement between the parties regarding the subject matter and supersedes and replaces any prior understanding or communication, written or oral. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of NPT which is not set out in the Agreement.
32.4 Order of Precedence. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Cloud Terms of Service, and the Acceptable Use Policy. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” Sections 1, 7, 17, 18, 19, 21, 22, 30 and 31 and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
32.5 No Waiver. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
32.6 Unenforceable Provisions. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable but still consistent with the business and financial objectives of the parties underlying the Agreement.
32.7 No Partnership. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other, and neither party has the right to bind the other to any agreement with a third party.
32.8 Changes Not Made Known. If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
32.9 The headings used in this Agreement are for reference only and form no part of the contract between you and NPT.
This Agreement is the complete and exclusive agreement between you and NPT regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
SCHEDULE 1: COUNTRY SPECIFIC TERMS
PART A: Services provided from United States of America
If you have purchased Services that will be provided from data centers or other NPT facilities located in the United States, then the following terms shall also form part of the Agreement.
In addition to the Disclaimers set forth in Section 15, to the maximum extent permitted by law, we disclaim the implied warranty of merchantability and any warranty of noninfringement.
2. Limitation on Remedies
The limitations on damages set forth in Section 18.2 and limitation on remedy for Service Level Agreement failures set forth in Section 18.3 shall also exclude claims based on wilful misconduct.
3. Governing law
The Agreement is governed by the laws of the State of Florida, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the city in which you reside. The arbitration shall proceed in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from the AAA or a comparable arbitration service, and who is selected pursuant to the applicable rules of the AAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. We will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favor. Each of us waives any right to a trial by jury, and agrees that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
4. Service Level Agreements
The Service Level Agreements described at Section 5 of the Agreement means those conditions and procedures at http://cpaz-cloudhosting.com/service-level-agreement/.
The term “PII” also includes any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1§ 6809(4), and (iii) “protected health information” as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.