1. Definitions

In this agreement, the following definitions apply:

1.1 “Additional Services” means any Services provided other than an Included Service. Additional Services may include any work that is or becomes necessary due to: (1) the Customer’s use of any third-party hardware, software, information, or materials not approved by the Service Provider; (2) hackers or other malicious or accidental destruction of systems or data, including destruction by the Customer’s employees or representatives; (3) the Customer’s performance of technical support functions or the Customer’s unauthorized modification or repair of software; (4) any event beyond the Service Provider’s or the Customer’s control including fire, water damage, power failure, malfunction of affiliated equipment, natural disaster, building modifications, or other events of a magnitude or type for which precautions are not generally taken in the IT service provider industry; and (5) the Customer’s failure to comply with other obligations under this agreement, including notifying the Service Provider of known system malfunctions. Any service that the Service Provider considers necessary because of the occurrence of the preceding events may be treated as an Additional Service regardless of whether it would otherwise be an Included Service.

1.2 “Confidential Information” means nonpublic information disclosed by one party to the other in any form that: (a) is designated as “Confidential”; (b) a reasonable person knows or reasonably should understand to be confidential; or (c) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the agreement; and that is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a nonconfidential basis before disclosure.

1.3 “Customer Configuration” means an information technology system (one or more of hardware, software, and other information technology components) that is the subject of the Services or to which the Services relate.

1.4 “Customer Data” means all data that the Customer receives, stores, or transmits on or using the Customer Configuration.

1.5 “Customer IP” means the Customer’s pre-existing Intellectual Property.

1.6 “Deliverables” means the tangible or intangible materials, specifically identified and described in a Service Order as Deliverables, which the Service Provider delivers to the Customer as a result of any professional Services.

1.7 “Included Services” means the specific Services specified in a Service Order that the Customer signed or accepted.

1.8 “Intellectual Property” means patents, copyrights, service marks/trademarks, trade secrets, and any other proprietary intellectual property rights.

1.9 “Open-Source Software” means open-source software including Linux and software licensed under the Apache, GPL, MIT, or other open-source licenses.

1.10 “Pass-through Expenses” means third-party charges for goods, raw materials, components, equipment, or services that are to be paid directly by the Service Provider and mutually agreed by the parties before any purchase and required by the Service Provider to provide the Services under this agreement.

1.11 “Recurring Services” means Services that are provided on an ongoing basis.

1.12 “Representatives” means a party’s respective service providers, officers, directors, managers, employees, contractors, affiliates, suppliers, and agents.

1.13 “Service Order” means any service order, proposal, quote, sales orders, and statement of work that describes any Included Services to be provided by the Service Provider, all which are referred to in this agreement as a Service Order.

1.14 “Service Provider Configuration Requirements” means those specifications identified by the Service Provider as required to perform the Services, including a required reference architecture or software version, as described in a Service Order.

1.15 “Service Provider IP” means the Service Provider’s Intellectual Property, not otherwise generally licensed to the public under an Open-Source Software license.

1.16 “Services” means all services the Service Provider provides to the Customer as set out in one or more signed Service Orders.

1.17 “Third-Party Fee Increase” means the direct or indirect increase of fees by a third-party vendor charged to the Service Provider for the Customer’s use of Third-Party Products, which might occur at any time.

1.18 “Third-Party Products” means any third-party hardware, services, or software provided by a third party and used with the Services.

2. Services

The Service Provider shall provide the Services in accordance with one or more Service Orders and all laws. If the Customer requests the Service Provider to perform any Service that is not an Included Service, then the Service Provider will provide and the Customer will pay for that Additional Service at the Customer’s cost. The Service Provider’s obligation to provide Services is contingent on verifying that the Customer at all times satisfies the Service Provider’s credit approval criteria. The Service Provider is not obligated to provide Services for Customer Configurations that do not meet the Service Provider Configuration Requirements. Nor is the Service Provider required to provide services necessitated by vandalism, theft, misuse, neglect, acts of third parties, fire, water, casualty, acts of God, mob violence, labor disputes, malfunction of affiliated equipment, electrical failure, accidents, unauthorized material modification of the Customer’s IT environment or repair of software, or from other causes unrelated to the ordinary operation of hardware or software. Any services performed as a result of these events is considered an Additional Service and is outside of the scope of this agreement. If the Service Provider’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants, or employees, the Service Provider will not be deemed in breach of its obligations under this agreement or otherwise liable for any costs, charges, or losses sustained or incurred by the Customer, in each case, to the extent arising directly or indirectly from that prevention or delay.

3. Customer Obligations

The Customer shall:

3.1 Cooperate with the Service Provider in its performance of the Services and provide access to the Customer’s premises, employees, and equipment (including the Customer Configuration) as required to enable the Service Provider to provide the Services.

3.2 Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in the Service Provider’s provision of the Services. The Customer states that it has purchased a sufficient number of licenses for the Service Provider’s use in providing the Services as required by EULAs (End User License Agreements) on all servers, desktops, and laptops and if these software licenses do not exist, the Customer is solely responsible for timely acquiring any currently needed licenses and any licenses for additional servers, desktops, and laptops that are added. The Customer further states that the Customer has not violated any licensing agreements or laws. The Customer shall indemnify the Service Provider for any installation, configuration, or use of software that is not appropriately licensed and for the defense of the Service Provider or remediation necessitated by the Customer’s action or nonaction. The Customer acknowledges that it is solely responsible and liable for all licensing of software that the Customer purchases or uses.

3.3 Use software/hardware in a manner as specified in the instruction manual and to abide by all EULAs and Acceptable Use Policies of the third-party vendor (including Microsoft, Citrix, VMWare, eFolder, Adobe, Cisco products, and the like) for any Third-Party Products provided to the Customer as part of the Services on a Service Order.

3.4 Ensure the integrity and security of Customer Data and regularly back up and validate the integrity of backups of Customer Data on an environment separate from the Customer Configuration. As stated in section 6, the Service Provider will only back up data if stated on a Service Order. If the Service Provider provides backup assistance on its servers, it is provided, without additional charge, as a courtesy to the Customer. The Service Provider is not liable for any lost or corrupted Customer Data resulting from providing that support.

3.5 Comply with the Service Provider’s Acceptable Use Policy (“AUP”). The current AUP is located at https://trustntm.com/privacy-policy. The Service Provider may amend the AUP on one or more occasions and suspend the affected Services immediately on a violation of the AUP. The Customer will be responsible to ensure compliance on the part of its employees, its contractors, and all other nonparties obtaining access to the Services through the Customer and shall indemnify the Service Provider against any losses arising out of or relating to any violation of the AUP by the Customer or any user or other nonparty obtaining access to the Services through the Customer.

4. Fees and Expenses; Payment Terms; Interest on Late Payments

4.1 Fees and Expenses

The Customer shall pay the fees set out in the applicable Service Order. Changes to the Services (including changes in the volume of the Services) and changes in the rights or obligations of the parties under this agreement might result in adjustments to the fees if in those circumstances the change requires the Service Provider to perform Additional Services.

4.2 Time and Materials

Where the Services are provided on a time and materials basis: (a) the fees payable for the Services will be calculated under the Service Provider’s standard hourly fee rates; and (b) the Service Provider shall issue invoices to the Customer monthly in arrears for its fees for time for the immediately preceding month with a detailed breakdown of any expenses for that month incurred under section 4.4.

The Service Provider shall bill the Customer in .25 increments for any Additional Services at the then-current hourly rate. Unscheduled requested Additional Services outside the normal service hours will be billed at 1.5 times the then-current hourly rate.

4.3 Fixed Price Basis

Where the Services are provided for a fixed price, the total fees for the Services will be the amount stated in the Service Order. The total price will be paid to the Service Provider in installments, as stated in the Service Order.

4.4 Expenses; Pass-through Expenses

The Customer shall reimburse the Service Provider for all reasonable travel and out-of-pocket expenses incurred by the Service Provider with performing the Services. In addition, the Customer shall reimburse the Service Provider for the Pass-through Expenses at actual cost, plus a mark-up of not more than 10%.

4.5 Payment

The Service Provider shall invoice the Customer for the amounts due under the applicable Service Order. The invoiced amount will include Monthly Recurring Charges (“MRC”) and Non-Recurring Charges (“NRC”). For Services billed on a flat-rate basis, the Service Provider shall invoice the Customer in advance for those Services, and the Customer shall pay for all those Services in advance before the Services are rendered. For Services billed on a metered or measured basis, the Service Provider shall invoice the Customer after the Services are rendered. Unless otherwise provided in the applicable Service Order, the Customer shall pay all invoiced amounts due to the Service Provider for the Services as described in the applicable Service Order within 30 days from the date of the Service Provider’s invoice, except for amounts disputed by the Customer in good faith under section 4.7. The Customer shall make all payments under this agreement in US dollars by wire transfer, automated clearing house (“ACH”), credit card, or any other payment method agreed to by the Service Provider. If the Customer has arranged for payment by credit card or ACH, the Service Provider may charge the Customer’s card or account on or after the invoice date. The Service Provider may charge its then-current rates if the Customer continues to use any Services after termination of the agreement or applicable Service Order. The Customer is responsible for keeping its billing, account permissions, and other account information up to date.

4.6 Late Payments

Except for invoiced payments that the Customer has successfully disputed, all late payments will bear interest at the lesser of (a) the rate of 1.5% a month and (b) the highest rate permissible under law, calculated daily and compounded monthly. The Customer shall also reimburse the Service Provider for all expenses arising out of the Service Provider’s collection efforts, including legal fees. Besides all other remedies available under this agreement or at law (which the Service Provider does not waive by the exercise of any rights under this agreement), the Service Provider may immediately suspend the Services on written notice if the Customer’s undisputed payment is overdue by at least 15 days. The Service Provider shall undertake collection efforts before suspension for nonpayment. The Service Provider may assess a fee for any payment transaction returned for insufficient funds or not paid when presented for payment.

4.7 Invoice Disputes

The Customer shall notify the Service Provider in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within 60 days of the invoice date. Invoices that are not disputed by the Customer in good faith and in written detail within 60 days of the invoice date will be deemed accepted by the Customer as accurate. The parties shall try to resolve all invoice disputes expeditiously and in good faith. Despite anything to the contrary, each party shall continue performing its obligations under this agreement during any invoice dispute, including paying all undisputed amounts due under this section 4.

4.8 No Setoff

Except as provided in section 4.7, the Customer shall perform its obligations under this agreement and any applicable Service Order without setoff, deduction, recoupment, or withholding for amounts owed or payable by the Customer whether under this agreement, any applicable Service Order, law, or otherwise and whether relating to the Service Provider’s breach, bankruptcy, or otherwise.

4.9 Fee Increases

After the first 12 months of this agreement, the Service Provider may increase its standard hourly rates for Services provided on a time and materials basis on written notice to the Customer, on condition that (a) those increases occur no more frequently than once per year; and (b) the amount of that increase will not exceed 5%. All other charges during the Initial Term or any Renewal Term will be fixed. However, the Service Provider may increase the MRC after the expiration of the then-current term by an amount not to exceed 5% on giving at least 30 days advance written notice. In the event of a Third-Party Fee Increase at any time, the Service Provider may also increase the Customer’s fees by the same percentage amount on 30 days advance written notice. A price adjustment will be deemed accepted if (a) the Customer accepts the increase in writing; (b) the Customer did not reject the affected Services in writing 30 days after the date of the notice of increase; or (c) the Customer continues to use the Services into the Renewal Term.

4.10 Taxes

All amounts due to the Service Provider are exclusive of taxes. The Customer will be responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the Customer under this agreement.

4.11 Credit Approval and Deposits

The Customer shall provide the Service Provider with credit information as requested to evaluate the Customer’s creditworthiness. Customer hereby authorizes the Service Provider to obtain the Customer’s credit report. The Service Provider may require the Customer to make a deposit as a condition of the Service Provider’s acceptance of any Service Order or continuing to provide the Services if the Customer does not timely pay the Service Provider under this agreement. Deposits will not exceed two months’ estimated charges for the Services and are due on the Service Provider’s written request. When Services are terminated, the deposit will be credited to the Customer’s account and the balance refunded.

5. Equipment

If the Service Provider provides and installs any telephony, computer, or network equipment (“Service Provider Equipment”) at the Customer’s premises that the Customer did not pay for, the Service Provider Equipment will remain the Service Provider’s sole property regardless of where the Service Provider Equipment is located or attached. All Service Provider Equipment leased is handled as a Hardware as a Service (HaaS) unless the Service Provider agrees otherwise in writing. The Customer shall not rearrange or move or disconnect the Service Provider Equipment and is responsible for any damage to or loss of the Service Provider Equipment that the Customer, the Customer’s Representatives, end users, or invitees cause. The Customer shall obtain and maintain (a) all-risk insurance against loss of and damage to the Service Provider Equipment for not less than its full replacement value, and (b) combined public liability and property damage insurance. At any time, on three days prior written notice by the Service Provider to the Customer, the Customer shall provide the Service Provider with physical access to the Service Provider Equipment for maintenance and other operational issues, and, in the event of termination of this agreement or any applicable Service Order, the Customer shall either (1) return the Service Provider Equipment to the Service Provider in good repair, condition, and working order, ordinary wear and tear resulting from proper use excepted, by delivering the Service Provider Equipment, at the Customer’s expense, to the Service Provider’s address specified in section 17.6(b); or (2) grant the Service Provider access to allow the Service Provider to remove the Service Provider Equipment. The Customer shall pay the Service Provider the replacement value of any lost, stolen, misappropriated, seized, damaged, or unreturned Service Provider Equipment.

6. Customer Data and Network Security

6.1 The Customer accepts ultimate responsibility and liability for the protection and preservation of the Customer Data and computer network through the creation and supervision of a company-wide network security operational plan. The Service Provider is an advisor only. The Customer acknowledges that the Service Provider is neither a bailee nor a fiduciary of the Customer Data, and that network security is the Customer’s principal and fundamental responsibility and is dependent on the education, training, and cooperation of every one of the Customer’s Representatives who have access to the Customer’s network.

6.2 Viruses and spyware might not be able to be removed without the deletion of files. The Service Provider will inform the Customer before deleting data, if possible. Once any data has been deleted from the Customer Configuration, the data should be considered completely unrecoverable by any means. Backups should be stored in a location other than an onsite area being repaired or upgraded. The Service Provider can back up data for the Customer for an additional charge under a separate service order.

6.3 The Service Provider is not responsible for any loss or damage to the Customer Data resulting from, arising out of, or related in any way to how the Customer backed up the Customer Data.

6.4 The Customer acknowledges that “backing-up” data is not the same as “archiving data.” Data archiving is the process of moving data that is no longer actively used to a separate data storage device for long-term retention. Data archives consist of older data that is still important and necessary for future reference and data that must be retained for regulatory compliance. Data archives are indexed and have search capabilities so that files and parts of files can be easily located and retrieved. Data archives are often confused with data backups, which are copies of data. Data backups are used to restore data in case it is corrupted or destroyed. In contrast, data archives protect older information that is not needed for everyday operations but might occasionally need to be accessed. The Customer assumes responsibility and control for archiving the Customer Data. The Service Provider can provide data backup on request, but until there is a signed service order making this the Service Provider’s responsibility, the Customer assumes responsibility and control for backing-up the Customer Data.

6.5 If the Service Provider provides data backup or management of the Customer’s backup systems, the Service Provider will use reasonable efforts to complete each backup occurring within any area owned or controlled by the Service Provider. Backed-up data is like a snapshot of files at a specific point in time and that snapshot is retained for at least seven days unless otherwise specified. Restoration from a backup will replace only the files contained in the then-current retention period. The Customer shall complete all recommended and necessary steps to ensure successful data backup. Certain exceptions, including backup exceeding time window, files open, backup client not accessible, backup system failure, or inability to restore from backup, might from time-to-time cause interruption to any backup service. Accordingly, the Service Provider does not warrant the validity or availability of the data that is being backed up.

7. Intellectual Property

7.1 IP Ownership

Unless otherwise specifically stated in a Service Order, as between the parties, (a) the Service Provider owns all Intellectual Property in the Services and any Deliverables (excluding Customer IP); and (b) each party otherwise owns Intellectual Property it creates, authors, or invents.

7.2 The Service Provider IP License

If Customer’s use of the Services or any Deliverables requires Customer to use the Service Provider IP, the Service Provider hereby grants Customer a limited, worldwide, nonexclusive, nonsublicensable, nontransferable license (for the Customer’s internal use) to the Service Provider IP: (a) in the Services, as necessary to use the Services in compliance with the agreement during the Services; and (b) in any Deliverables, in perpetuity.

7.3 Customer IP License

If the Service Provider’s provision of the Services or any Deliverables requires the Service Provider to use Customer IP, Customer shall provide access to the Customer IP and hereby grants the Service Provider a limited, worldwide, nonexclusive, nontransferable license (with the right of sublicense where required to perform the Services, but otherwise without the right to sublicense) to Customer IP solely to provide the Services and any Deliverables.

7.4 Service Modification

The Service Provider may modify the Services or Deliverables in response to any claim of nonparty Intellectual Property infringement. If the Service Provider determines that it is not reasonably or commercially practicable to modify or obtain the right to use the allegedly infringing element, the Service Provider may terminate the Services or Deliverables or both on 90 days’ notice without liability except to refund amounts paid for unused Services (prorated as to parts of the Services or Deliverables terminated).

8. Confidential Information

Neither party shall use the other’s Confidential Information except for performing or using the Services, exercising its legal rights under the agreement, or as required by law, and shall use reasonable care to protect Confidential Information from unauthorized disclosure. Neither party shall disclose the other’s Confidential Information to any person other than a party except (a) to its Representatives, on condition that those Representatives agree to confidentiality measures that are at least as stringent as those stated in the agreement; (b) as required by law; (c) in response to a subpoena, court order, or other compulsory legal process, on condition that the party subject to that process shall give the other written notice of at least seven days before disclosing Confidential Information, unless the law forbids that notice; or (d) with the other party’s consent. The Customer acknowledges that the working information, processes, reports, and associated raw source data that the Service Provider compiles and uses to provide the Services under any Service Order (collectively, “Proprietary Information”) belong solely to the Service Provider. Proprietary Information includes logins, configurations data, licensing, and service ticket history contained in the Service Provider’s professional services automation software; the software, database, and reports contained in monitoring tools; server and network logs; and recordings of calls and remote support sessions.

9. Term and Termination; Early Termination Fee

9.1 Term

This agreement will continue until the last Service Order in effect terminates. The term of a Service Order begins on the date that all the Services set out in that Service Order have been installed and activated and will continue for the term set out in that Service Order or 36 months if no term is specified (“Initial Term”). On expiration of the Initial Term, a Service Order will automatically renew for additional successive 12-month periods (each, a “Renewal Term”), unless one party notifies the other party in writing no less than 90 days before the end of the then-current term that the party wants to terminate a Service Order.

9.2 Termination

(a) For Convenience. For Recurring Services, the Customer may terminate all or part of any Service Order for convenience at any time by giving the Service Provider at least 90 days advance written notice, subject to the Early Termination Fee set out in section 9.4. If the Service Provider allows the Customer to cancel or delay the scheduled termination date, the Customer shall provide 90 days written notice of any rescheduled termination date.

(b) For Cause

(i) Either party may immediately terminate a Service Order for cause on written notice if (1) the other party materially breaches this agreement or the Service Order (2) and, if the breach is amenable to cure, does not remedy the breach within 30 days of the nonbreaching party’s written notice describing the breach.

(ii) The Service Provider may immediately terminate a Service Order for breach on written notice if, after suspending the Customer’s Services for nonpayment, any invoiced and undisputed amount remains overdue for an additional ten days.

(iii) Subject to law, either party may immediately terminate a Service Order on written notice if the other party enters into compulsory or voluntary liquidation, or ceases to carry on business, or takes or suffers any similar action that the other party reasonably believes means that it might be unable to pay its debts. The Service Provider’s obligation to provide Services is contingent on verification that the Customer at all times satisfies the Service Provider’s credit criteria.

(iv) Despite anything to the contrary in the agreement, subject to law, the Early Termination Fee set out in section 9.4 will immediately become payable if the Service Provider terminates a Service Order under this section 9.2(b).

9.3 Suspension of Services

The Service Provider may suspend Services without liability if: (a) the Service Provider reasonably believes that the Services are being used in violation of this agreement; (b) the Customer does not cooperate with the Service Provider’s reasonable investigation of any suspected violation of this agreement; (c) the Service Provider is required by law or by a regulatory or government body to suspend the Services; or (d) there is another event for which the Service Provider reasonably believes that the suspension of Services is necessary to protect the Service Provider or its other customers. The Service Provider shall give the Customer advance notice of a suspension under this section of at least 12 business hours unless the Service Provider determines in its reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect the Service Provider or its other customers from imminent and significant operational, legal, or security risk. Any suspension under this section 9.3 will continue until the Customer has cured the underlying breach to the Service Provider’s reasonable satisfaction or the Service Provider elects to terminate the applicable Service Order under section 9.2(b). The Customer accepts full responsibility for any loss and expense the Customer might incur as a result of any suspension under this section 9.3.

9.4 Early Termination

(a) Early Termination Fee. If the Customer terminates any Service Order for convenience before expiration, or if the Service Provider terminates any Service Order early due to the Customer’s breach under sections 9.2(b)(i)–9.2(b)(iii), then, besides any outstanding fees owed at termination, the Customer shall pay the Service Provider, as liquidated damages and not as a penalty, an early termination fee calculated as set out in section 9.4(b) (“Early Termination Fee”). The Customer acknowledges that damages resulting from termination under section 9.2(a) or sections 9.2(b)(i)–9.2(b)(iii) would be impossible or very difficult to accurately estimate, and that the Early Termination Fee is a reasonable estimate of the anticipated or actual harm that might arise from that termination. The Customer’s payment of the Early Termination Fee is the Customer’s sole liability and entire obligation and the Service Provider’s exclusive remedy for any termination by the Customer under section 9.2(a) or for any termination by the Service Provider for breach under sections 9.2(b)(i)–9.2(b)(iii).

(b) Calculation of Early Termination Fee. The Early Termination Fee is equal to the sum of the following:

(i) The depreciated value of any Service Provider Equipment that the Service Provider acquired to provide the Services under the applicable Service Order and that the Service Provider is unable, using reasonable efforts, to repurpose for the Service Provider’s other customers.

(ii) Severance and related costs the Service Provider must pay to personnel it hired to perform the Services under the applicable Service Order whom the Service Provider is unable, using reasonable efforts, to reassign to other projects or customers of the Service Provider.

(iii) All costs, including early termination fees, that the Service Provider incurs under third-party agreements relating to the Services, including but not limited to facility leases, equipment leases, and software licenses, that the Service Provider cannot: (i) assign to the Customer; or (ii) cancel or terminate without cost.

(iv) Any startup or committed costs identified in the applicable Service Order.

(v) 100% of the agreed fees for the remainder of the then-current term for the applicable Service Order.

9.5 Offboarding Services

On the termination of a Service Order for any reason, the Service Provider shall provide, and the Customer shall pay for, offboarding services (“Offboarding Services”). The Service Provider has no responsibility or liability for assisting the Customer in transferring any services or providing any separation services or environment information until the Customer pays all outstanding amounts due under the Service Order (including any Early Termination Fees) and pays the agreed-on amount for the Offboarding Services. If the Customer or another provider change elements of the Customer Configuration during the offboarding period, the Customer assumes responsibility for all administration, associated support, and any interruption of services related to the changes. The Service Provider assumes no liability to support changes started outside of the Service Provider.

10. Limited Warranty and Warranty Disclaimer

10.1 The Service Provider warrants that it provides the Services using a commercially reasonable level of care and skill. The preceding warranty does not apply, and the Service Provider is not making any warranty, to any Third-Party Products.

10.2 The Service Provider’s sole liability and the Customer’s sole remedy for breach of this warranty will be as follows:

(a) The Service Provider shall use reasonable efforts to promptly cure any such breach, on condition that if the Service Provider cannot substantially cure that breach within a reasonable time after the Customer’s written notice of that breach, the Customer may terminate the Service Order without penalty by serving written notice of termination under section 9.2(b).

(b) If a Service Order is terminated under section 10.2(a), the Service Provider shall within 30 days after the effective date of termination, refund to the Customer any fees paid by the Customer for Services not yet provided.

(c) The preceding remedy will not be available, and the Service Provider will not be liable for a breach of the warranty set out in section 10.1, unless the Customer gives written notice of the defective Services, reasonably described, to the Service Provider within 30 days of the time when the Customer discovers or ought to have discovered that the Services were defective.

10.3 Except for the limited warranties set out in section 10.1, the Services are provided “as is” and the Service Provider is not making any warranty, whether express, implied, statutory, or otherwise. The Service Provider is specifically not making any implied warranties of merchantability, fitness for a particular purpose, title, and noninfringement, or any warranties arising from course of dealing, usage, or trade practice. The Customer is solely responsible for determining the suitability of the Services. The Service Provider is not making any warranty that the Services, or any products or results of the use of them, will meet the Customer’s or any other person’s or entity’s requirements; operate without interruption; achieve any intended result; be compatible or work with any of the Customer’s or any nonparty’s software, system, or other services; be secure, accurate, complete, free of harmful code, or error-free; or that any errors or defects can or will be corrected. The Service Provider is not making any commitment to provide any services other than the Services stated in the Service Order.

11. Limitation of Liability

In no event will the Service Provider be liable under or with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise, for any: (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) increased costs, diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or (e) cost of replacement goods or services, in each case regardless of whether the Service Provider was advised of the possibility of those losses or damages or those losses or damages were otherwise foreseeable. In no event will the Service Provider’s aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise exceed the total amounts paid to the Service Provider under this agreement in the 12-month period preceding the event giving rise to the claim.

12. Third-Party Products and Warranties

The Customer acknowledges that the Service Provider does not manufacture hardware or software or provide power or Internet services. All hardware and software are provided “as is” except as expressly stated in this agreement. The Service Provider is not responsible for third-party warranties or for any effect that the Services might have on those warranties. Some manufacturers’ warranties or service contract terms for Third-Party Products might become void if the Service Provider or anyone else, other than the manufacturer or its authorized representative, provides services for or works on the hardware or software (including providing maintenance and repair services). Except as agreed otherwise in writing between the parties, the Third-Party Products are exclusively subject to terms between the third party and the Customer. The Service Provider is not liable for Third-Party Products, and the Customer must look exclusively to the third party for any damages or liability as to the provision of Third-Party Products. Except as otherwise specifically stated in a Service Order, the Customer hereby authorizes the Service Provider (or otherwise obtains the right for the Service Provider) to copy, install, and modify, when necessary and as required by the Service Order, all Third-Party Products, including software, to be used with the Services or to be copied or stored for later reinstallation of a backup system or data. The Customer states to the Service Provider that the Customer has obtained any licenses, consents, regulatory certifications, or approvals required to give the Service Provider and its contractors or employees the rights or licenses to access, copy, distribute, use, or modify (including creative derivative works) or install any Third-Party Products to be used with the Services, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of the Third-Party Products.

13. Assumption of Risk

13.1 The Customer assumes all risk for any loss or damage arising in whole or in part from or relating to (a) use of any third-party hardware, software, information, or materials not approved or recommended by the Service Provider; (b) viruses, hackers, or other malicious or accidental destruction of systems or data, including destruction by the Customer or the Customer’s Representatives, although the Service Provider will make every reasonable effort to proactively minimize exposure to those risks; (c) any event beyond the Service Provider’s or the Customer’s control including power failure, natural disaster, building modifications, or other events of a magnitude or type for which precautions are not generally taken in the IT service provider industry; and (d) the Customer’s failure to perform one or more of the Customer’s obligations set out in this agreement or any Service Order. The Customer has exclusive responsibility for understanding and ensuring compliance with any regulatory, legal, or contractual obligations related to Customer Data (including all Customer Data held or backed up for the Customer by the Service Provider).

13.2 The Customer acknowledges that the disclaimers in this agreement apply to any alleged damages or claims related to data loss, data corruption, or breaches of the Customer’s network security arising out of or occurring simultaneously with the provision of any Services by the Service Provider. Accordingly, the Customer states to the Service Provider that the Customer has obtained all the necessary insurance policies that can reimburse the Customer for any data loss occurrences and that the Customer will not suffer any unreimbursed financial damages related to the loss or damage of the Customer Data.

13.3 In some cases, the Service Provider may be transporting the Customer’s hardware that contains the Customer Data. The Service Provider cannot obtain insurance to cover loss of data during transit of the Customer’s equipment containing this data. Therefore, if the Service Provider moves or has equipment moved for the Customer, the Customer states to the Service Provider that the Customer has obtained all the necessary insurance policies that can reimburse the Customer for any data loss occurrences and that the Customer will not suffer any unreimbursed financial damages related to the loss of or damage to the Customer Data.

14. Non-Solicitation

During this agreement and for one year after the last date of service from the Service Provider, neither the Customer, its affiliates, its subsidiaries, nor any employees or representatives of the preceding shall, without first obtaining the Service Provider’s advance written consent, directly or indirectly, for itself or for another individual or entity, solicit for employment or otherwise induce, influence, or encourage to terminate employment with the Service Provider, any employee of the Service Provider, or any person employed by the Service Provider as an independent contractor or consultant with whom the Customer has had more than incidental contact or who became known to the Customer with the Service Provider’s provision of the Services. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the Internet, will not be construed as a solicitation or inducement for this section 14, and the hiring of any employee or independent contractor who freely responds to it will not be a breach of this section 14. If the Customer breaches this section 14, the Customer shall, on demand, pay to the Service Provider a sum equal to one year’s basic salary or the annual fee that was payable by the Service Provider to that employee, worker, or independent contractor plus the recruitment costs incurred by the Customer in replacing that person.

15. Indemnification

15.1 In General

(a) The Customer shall pay the Service Provider for any loss of the Service Provider’s that is caused by the Customer’s: (i) breach of this agreement; (ii) violation or infringement of nonparty rights; (iii) violation of law; or (iv) tortious act or omission. But the Customer is not required to pay if the loss was caused solely by the Service Provider’s negligence or intentional misconduct.

(b) The Service Provider shall pay the Customer for any loss of the Customer’s that is caused by the Service Provider’s: (i) breach of this agreement; (ii) violation or infringement of nonparty rights; (iii) violation of law; or (iv) tortious act or omission. But the Service Provider is not required to pay if the loss was caused solely by the Customer’s negligence or intentional misconduct.

15.2 Definitions

(a) “Loss” means an amount that the injured party is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.

(b) A loss is “caused by” an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.

15.3 Duty to Notify

The injured party shall notify the indemnifying party before the 15th business day after the injured party knows or should reasonably have known of a claim for a loss that the indemnifying party might be obligated to pay. The injured party’s failure to give the indemnifying party timely notice does not terminate the indemnifying party’s obligation, except to the extent that the failure prejudices the indemnifying party’s ability to defend the claim or mitigate losses.

15.4 Legal Defense of a Claim

(a) Injured Party’s Control. The injured party has control over defending a claim for a loss (including settling it), unless the injured party directs the indemnifying party to control the defense.

(b) Direction to Control. If the injured party directs the indemnifying party to control the defense, each of the following applies:

(i) The indemnifying party may choose and retain legal counsel.

(ii) The injured party may retain its own legal counsel at its expense.

(iii) The indemnifying party will not settle any litigation without the injured party’s written consent if the settlement (1) imposes a penalty or limitation on the injured party, (2) admits the injured party’s fault, or (3) does not fully release the injured party from liability.

(c) Good Faith. The indemnifying party and the injured party will cooperate with each other in good faith on a claim.

15.5 No Exclusivity

The injured party’s rights under this section 15 do not affect other rights that the injured party might have.

16. Dispute Resolution

16.1 Arbitration

Except for a dispute arising out of unpaid fees (including any early termination fees) under this agreement, as the exclusive means of initiating adversarial proceedings to resolve any dispute arising out of this agreement or the use of the Services, a party may demand that the dispute be resolved by arbitration administered by American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, and each party hereby consents to any such dispute being so resolved. The parties shall conduct the arbitration in Oakland County, Michigan. One arbitrator from AAA will conduct the arbitration. The arbitrator will issue a reasoned award with findings of fact and conclusions of law. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction. Neither party nor an arbitrator shall disclose the existence, content, or results of any arbitration under the agreement without both parties’ prior written consent. Either party may appeal the final award under the AAA’s Optional Appellate Arbitration Rules in effect when the dispute arises. Grounds for vacating the award will include, besides those enumerated under the Federal Arbitration Act, 9 U.S.C. §1, et seq., that the arbitrator committed errors of law that are material and prejudicial. The appeal will be determined on the written documents submitted by the parties, with no oral argument. After the appellate rights described in this section 16.1 have been exercised or waived, the parties will have no further right to challenge the award.

16.2 Jurisdiction and Venue

Except as otherwise set out in section 16.1, as the exclusive means of bringing adversarial proceedings to resolve any dispute arising out of this agreement or the subject matter of this agreement, a party may bring such a proceeding in the United States District Court for the Eastern District of Michigan or in a state court in Michigan. Each party acknowledges that those courts would be a convenient forum. Each party hereby waives its right to a trial by jury in any adversarial proceedings arising out of this agreement.

16.3 Recovery of Expenses

In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses.

16.4 Jury Trial Waiver

Each party hereby waives its right to a trial by jury in any adversarial proceedings arising out of this agreement.

16.5 Limited Time to Bring Claims

A party will not bring a claim arising out of or related to the subject matter of this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.

17. General

17.1 Entire Agreement

This agreement and all Service Orders constitutes the entire understanding between the parties as to the subject matter of this agreement and supersedes all other agreements, whether written or oral, between the parties. If there is a conflict between the terms of this agreement and a Service Order, the documents will govern in the following order of precedence: the Service Order and then this agreement.

17.2 Modifications

Unless otherwise expressly permitted in the agreement, the terms of the agreement may be amended only by a written agreement, signed by both parties, that expressly refers to the agreement. A Service Order may be amended to modify, add, or remove Services either by a written agreement signed by both parties or by an exchange of correspondence (including through the Service Provider’s ticketing system) that includes the express consent of an authorized individual for both parties. The pre-printed terms of the Customer’s purchase order or other business form or terms that the Customer provides are void. Some terms are incorporated into the agreement by reference to pages on the NTM website and NTM may revise those terms from time to time (including this agreement). Except where otherwise designated, those revisions are effective and supersede and form part of the agreement as of the time: (a) the Customer enters into a new Service Order referencing the revised terms; (b) a Service Order automatically renews under the agreement; or (c) the parties enter into an agreement for a Renewal Term or account transfer (in which case the Customer acknowledges that it has reviewed and accepted the then-current version of the terms). If Customer enters into multiple agreements over time for a given Customer Configuration (for example, adding additional components or services), then the most recent terms referenced in the Service Order(s) will govern the entirety of the Services for the given Customer Configuration.

17.3 Assignment

Except with the Service Provider’s prior written consent, the Customer shall not transfer, including by merger (whether that party is the surviving or disappearing entity), consolidation, dissolution, or operation of law, (1) any discretion granted under this agreement, (2) any right to satisfy a condition under this agreement, (3) any remedy under this agreement, or (4) any obligation imposed under this agreement. Any purported transfer in violation of this section 17.3 will be void.

17.4 Waivers

No waiver under this agreement will be effective unless it is in writing and signed by the party granting the waiver. A waiver granted on one occasion will not operate as a waiver on other occasions.

17.5 Severability

The parties acknowledge that if a dispute between the parties arises out of this agreement or the subject matter of this agreement, they would want the court to interpret this agreement as follows:

(a) as to any provision that it holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding that provision;

(b) if an unenforceable provision is modified or disregarded in accordance with this section 17.5, by holding that the rest of the agreement will remain in effect as written;

(c) by holding that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable; and

(d) if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, by holding the entire agreement unenforceable.

17.6 Notices

A notice or other communication under this agreement will be effective if it is in writing and received by the party to which it is addressed. It will be deemed to have been received as follows:

(i) if a paper copy is delivered by a delivery organization that allows users to track deliveries, on receipt as stated in the tracking system;

(ii) if a paper copy is delivered by another means, when the intended recipient or a representative of the intended recipient signs for it;

(iii) if it is delivered by email, when the intended recipient acknowledges by notice in accordance with this section 17.6 (but without need for further acknowledgement) having received that message, except that a read receipt or an automatic reply will not constitute acknowledgment of a message for purposes of this section 17.6; and

(iv) if the intended recipient rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in address for which no notice was given, then on that rejection, refusal, or inability to deliver.

For a notice under this agreement to be valid, it must be addressed using the information below for the Service Provider or the contact information identified on the applicable Service Order for the Customer.

If a notice addressed to a party is received after 5:00 p.m. on a business day at the location specified in the address for that party, or on a day that is not a business day at the location specified in the address for that party, then the notice will be deemed to have been received at 9:00 a.m. on the next business day.

17.7 Governing Law

Michigan law governs all adversarial proceedings arising out of the subject matter of this agreement.

17.8 Force Majeure

(a) If a Force Majeure Event prevents a party from complying with any one or more obligations under this agreement or any applicable Service Order, that inability will not constitute a breach if (1) that party uses reasonable efforts to perform those obligations, (2) that party’s inability to perform those obligations is not due to its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that Force Majeure Event or (B) develop and keep a reasonable contingency plan to respond to events or circumstances of the same type as that Force Majeure Event, and (3) that party complies with its obligations under section 17.8(c).

(b) In this agreement, “Force Majeure Event” means, for a party, any event or circumstance, whether or not foreseeable, that was not caused by that party (other than a strike or other labor unrest that affects only that party, an increase in prices or other change in general economic conditions, a change in law, or an event or circumstance that results in that party’s not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance.

(c) If a Force Majeure Event occurs, the noncomplying party shall promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long the noncomplying party expects it to last. Afterwards the noncomplying party shall update that information as reasonably necessary. During a Force Majeure Event, the noncomplying party shall use reasonable efforts to limit damages to the other party and to resume its performance under this agreement or a Service Order.

17.9 No Third-Party Beneficiaries

This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.

17.10 Telephone Call Recordings

The Service Provider may record the Customer’s telephone calls for quality, training, and forensic purposes. By entering into this agreement, the Customer hereby consents to these recordings and acknowledges that it is the Customer’s responsibility to notify all members of the Customer’s staff that these recordings are occurring.

17.11 Export

The Customer and the Service Provider will not knowingly export or re-export any personal computer system, part, technical data, or sub-elements under this agreement, directly or indirectly, to any destinations prohibited by the United States Governm