EULA (End-User License Agreement)

This Software Agreement (the “Agreement”), effective as of May 22, 2026 (the “Effective Date”), is by and between NGWA BPRO Business PRO, an Ohio not-for-profit corporation (“NGWA BPRO”), and the customer listed on the applicable Subscription Summary (“Customer”).

WHEREAS, NGWA BPRO provides access to its software-as-a-service offerings to its customers, as described in applicable Subscription Summaries, one of which is attached hereto as Customer’s Subscription Summary; and
WHEREAS, Customer desires to access certain software-as-a-service offerings described herein, and NGWA BPRO desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

2. Services.

1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, NGWA BPRO hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 8) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. NGWA BPRO shall provide to Customer the Access Credentials within a reasonable time following the Effective Date. The total number of Authorized Users will not exceed the number set forth in the Subscription Summary, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.
2. Documentation License. NGWA BPRO hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 8) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
3. Changes. NGWA BPRO reserves the right, in its sole discretion, to make any changes to the NGWA BPRO Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of NGWA BPRO’s services to its customers; (ii) the competitive strength of or market for NGWA BPRO’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the NGWA BPRO Materials and/or Subscription Summary. Excluding NGWA BPRO’s rights as otherwise set forth in this Section 3, no change to the NGWA BPRO Materials and/or Subscription Summary shall be implemented unless it has been approved in writing in the form of a change order amendment and signed by an authorized representative of each party (each, a “Change Order Amendment”), and upon Customer’s and NGWA BPRO’s execution of such Change Order Amendment, the Change Order Amendment shall be incorporated into and become part of the applicable Subscription Summary.
4. Resultant Data. Notwithstanding anything to the contrary in this Agreement, NGWA BPRO may monitor, collect, and compile Resultant Data. As between NGWA BPRO and Customer, all right, title, and interest in Resultant Data, and all Intellectual Property Rights therein, belong to and are retained solely by NGWA BPRO. Customer acknowledges that NGWA BPRO may compile Resultant Data based on Customer Data input into the Services. Customer agrees that NGWA BPRO may (i) make Resultant Data publicly available in compliance with applicable Law, and (ii) use Resultant Data to the extent and in the manner permitted under applicable Law; provided that such Resultant Data does not identify Customer or Customer’s Confidential Information.
5. Third-Party Materials. NGWA BPRO may from time to time make Third-Party Materials available to Customer. For purposes of this Agreement, such Third-Party Materials are subject to their own terms and conditions. Customer acknowledges that NGWA BPRO makes no representations or warranties with respect to or regarding such Third-Party Materials, including but not limited to the quality, availability, interoperability, or functionality of any third-party platforms or APIs. All use of Third-Party Materials is subject to compliance with terms and conditions of use required by such third-parties and is at Customer’s sole risk.
6. Subcontractors. NGWA BPRO may in its discretion engage third parties to perform Services (each, a “Subcontractor”).
7. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the NGWA BPRO Materials or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the NGWA BPRO Materials and the Third-Party Materials are and will remain with NGWA BPRO and the respective rights holders in the Third-Party Materials.

3. Use of Services.

1. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the NGWA BPRO Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works of the NGWA BPRO Materials, in whole or in part; (b) rent, lease, lend, sell, sublicense, assign, distribute, transfer, or otherwise make available the NGWA BPRO Materials to any third party; (c) reverse engineer, disassemble, decompile, decode, modify, change, or adapt the NGWA BPRO Materials, in whole or in part; (d) bypass or breach any security device or protection used for or contained in the NGWA BPRO Materials; (e) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of NGWA BPRO Materials; (f) use the NGWA BPRO Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law; or (g) use the NGWA BPRO Materials for purposes of: (i) benchmarking or competitive analysis of NGWA BPRO Materials; (ii) developing, using, or providing a competing product or service; or (iii) any other purpose that is to NGWA BPRO’s detriment or commercial disadvantage. If Customer becomes aware of any actual or threatened activity prohibited by this Section 1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and NGWA BPRO Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify NGWA BPRO of any such actual or threatened activity.
2. Suspension or Termination of Services. Notwithstanding anything to the contrary in this Agreement, NGWA BPRO may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the NGWA BPRO Materials if: (i) NGWA BPRO reasonably determines that (a) there is a threat or attack on any of the Intellectual Property Rights of the NGWA BPRO Materials; (b) Customer’s or any Authorized User’s use of the NGWA BPRO Materials disrupts or poses a security risk to the NGWA BPRO Materials or to any other customer or vendor of NGWA BPRO; (c) Customer, or any Authorized User, is using the NGWA BPRO Materials for fraudulent or illegal activities or otherwise breaches any of the terms and conditions hereunder; (d) subject to applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (e) NGWA BPRO’s provision of the NGWA BPRO Materials to Customer or any Authorized User is prohibited by applicable Law; (ii) any vendor of NGWA BPRO has suspended or terminated NGWA BPRO’s access to or use of any third-party services or products required to enable Customer to access the NGWA BPRO Materials; or (iii) in accordance with Section 8.4 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). NGWA BPRO shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the NGWA BPRO Materials following any Service Suspension (unless access is to be terminated). NGWA BPRO shall use commercially reasonable efforts to resume providing access to the NGWA BPRO Materials as soon as reasonably possible after the event giving rise to the Service Suspension is cured (unless access is to be terminated). NGWA BPRO will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. This Section 2 does not limit any of NGWA BPRO’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. Authorized Users. NGWA BPRO may review Customer’s compliance with the Authorized User allocation identified on the Subscription Summary on a regular basis if any Authorized User is provided access to the Services. Upon notification from NGWA BPRO, Customer will have thirty (30) days to bring Customer’s account back into compliance with the Authorized User quantity from the Subscription Summary. NGWA BPRO will exercise reasonable efforts to work with the Customer to reduce Customer’s Authorized Users by identifying users that are inactive or improperly classified so that it achieves compliance. In the event that the Customer is unable to achieve compliance, the Customer agrees to pay for excess usage in accordance with Section 8
4. NWGA may, at any time during the Term, but upon reasonable notice to Customer, inspect (a) Customer’s use of the NGWA BPRO Materials, and (b) the functionality and maintenance of the NGWA BPRO Materials. All inspections will be conducted during regular business hours and in a manner that does not unreasonably interfere with Customer’s business operations. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of NGWA BPRO with respect to such inspection.

4. Customer Obligations.

1. Customer Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Services are accessed or used; (b) provide NGWA BPRO Personnel with such access to Customer Systems as is necessary for NGWA BPRO to perform the Services; and (c) provide all cooperation and assistance as NGWA BPRO may reasonably request to enable NGWA BPRO to exercise its rights and perform its obligations under and in connection with this Agreement. Customer shall, at its sole expense, provide, configure and be responsible for the proper functioning of Internet connectivity at levels recommended by NGWA BPRO, hardware, systems software, and other applications software, during the Term, for proper functioning of the Services.
2. Effect of Customer Failure or Delay. NGWA BPRO is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
3. Authorized User. If any Authorized User is provided access to the Services, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users, if any, aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.

5. Professional Services. As mutually agreed by the Parties in the applicable Subscription Summary in conjunction with the Services, NGWA BPRO may perform certain Professional Services. Such Professional Services shall be provided for a separate fee, which will be specified in the applicable Subscription Summary in accordance with the terms and conditions of this Agreement. Such Professional Services shall be provided in a manner that is consistent with applicable industry standards, and if such standards are not met (with a reasonable opportunity to cure following written notice from Customer), Customer’s sole remedy shall be the re-performance of such professional services.

6. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. NGWA BPRO HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

7. Customer Obligations.

1. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the NGWA BPRO Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
2. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data.

8. Fees and Payment.

1. Fees. Customer shall pay NGWA BPRO the fees set forth in the Subscription Summary (“Fees”) in accordance with this Section 8. In the event that either a service is added to or removed from the Services provided to Customer by mutual agreement of the parties, or, if applicable, the parties agree to increase or decrease the number of Authorized Users, the Subscription Summary shall be modified by NGWA BPRO to reflect the then-current Fees. In the event the Subscription Summary is modified, the applicable Fees for the then current invoice period shall be calculated by NGWA BPRO in accordance with its then current practices. For the avoidance of doubt, NGWA BPRO is not required to provide assistance with data migration unless such services are expressly set designated as Professional Services on the applicable Subscription Summary, and Customer will be responsible for all related fees at NGWA BPRO’s then current rates.
2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is 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 or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on NGWA BPRO’s income.
3. Payment. Customer shall pay all Fees on or prior to the due date for any Fees set forth in the Subscription Summary with a due date and within 30 days after the date of the issuance of any invoice for any other Fees. Customer shall make all payments hereunder in US dollars by company check or electronic funds transfer unless otherwise authorized by NGWA BPRO in writing. Customer shall make payments to the address or account specified in the Subscription Summary or such other address or account as NGWA BPRO may specify in writing from time to time.
4. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) NGWA BPRO may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Customer shall reimburse NGWA BPRO for all costs incurred by NGWA BPRO in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) NGWA BPRO may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
5. No Deductions or Setoffs. All amounts payable to NGWA BPRO under this Agreement shall be paid by Customer to NGWA BPRO in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
6. Fee Increases. NGWA BPRO may increase Fees by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of a Renewal Term, and the Subscription Summary will be deemed amended accordingly.
7. Audits. NGWA BPRO or its nominee (including its accountants and auditors) may, in NGWA BPRO’s sole discretion, inspect and audit Customer’s use of the Services under this Agreement at any time during the Term and for one year following the termination or earlier expiration of this Agreement. All audits will be conducted during regular business hours. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of NGWA BPRO with respect to such audit. If the audit determines that Customer’s use of the Services exceeded the usage permitted by this Agreement, Customer shall pay to NGWA BPRO all amounts due for such excess use, plus interest on such amounts, as calculated pursuant to Section 4 and all costs incurred by NGWA BPRO in conducting the audit. Customer shall make all payments required under this Section 8.7 within five (5) days of the date of written notification of the audit results.

9. Confidentiality. The Parties acknowledge and agree that this Agreement and the contents hereof are subject to the terms and conditions of that certain Confidentiality Agreement, attached hereto as Exhibit B, and incorporated herein by reference.

10. Fees and Payment.

1. NGWA BPRO Materials. All right, title, and interest in and to the NGWA BPRO Materials, including all Intellectual Property Rights therein, are and will remain with NGWA BPRO and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the NGWA BPRO Materials except as expressly set forth in Section 1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to NGWA BPRO Materials are expressly reserved by NGWA BPRO. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to NGWA BPRO an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
2. Customer Data. As between Customer and NGWA BPRO, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in this Section 2. Notwithstanding the foregoing, Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to NGWA BPRO, its Subcontractors, and NGWA BPRO Personnel to enforce this Agreement and exercise NGWA BPRO’s, its Subcontractors’, and NGWA BPRO Personnel’s rights and perform NGWA BPRO’s, its Subcontractors’, and NGWA BPRO Personnel’s obligations hereunder.
3. Feedback. If Customer or any of its representatives sends or transmits any communications or materials to NGWA BPRO by mail, email, telephone, orally, electronically, or otherwise, suggesting or recommending changes to the NGWA BPRO Materials or Professional Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), NGWA BPRO shall be and hereby is permitted to use such Feedback without any obligation to Customer or any other Person, irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to NGWA BPRO on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in and to, and NGWA BPRO is free to use, share, and disclose, without any attribution or compensation to Customer or any other Person, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in or relating to the Feedback, for any purpose whatsoever, although NGWA BPRO is not required to use any Feedback.

11. Representations and Warranties.

1. Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
2. Additional NGWA BPRO Representations, Warranties, and Covenants. NGWA BPRO represents, warrants, and covenants to Customer that NGWA BPRO will perform the Professional Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
3. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to NGWA BPRO that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by NGWA BPRO and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights, of any third party or violate any applicable Law.
4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 1 AND SECTION 11.2, ALL NGWA BPRO MATERIALS AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” NGWA BPRO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, NGWA BPRO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR NGWA BPRO MATERIALS, OR PROFESSIONAL SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. WITHOUT LIMITING THE FORGOING DISCLAIMERS, CUSTOMER ACKNOWLEDGES THE SERVICES AND OTHER NGWA BPRO MATERIALS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THE NGWA BPRO MATERIALS ARE NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.

12. Indemnification.

1. NGWA BPRO Indemnification. NGWA BPRO shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third party’s US Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (a) Third-Party Materials or Customer Data; (b) access to or use of the NGWA BPRO Materials in combination with any hardware, system, software, network, or other materials or service not provided by NGWA BPRO or specified for Customer’s use in the Documentation; (c) modification of the NGWA BPRO Materials other than: (i) by or on behalf of NGWA BPRO; or (ii) with NGWA BPRO’s written approval in accordance with NGWA BPRO’s written specification; (d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of NGWA BPRO; or (e) act, omission, or other matter described in Section 2(a), Section 12.2(b), Section 12.2(c), or Section 12.2(d), whether or not the same results in any Action against or Losses by any NGWA BPRO Indemnitee.
2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless NGWA BPRO and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “NGWA BPRO Indemnitee”) from and against any and all Losses incurred by such NGWA BPRO Indemnitee resulting from any Action by a third party (other than an Affiliate of a NGWA BPRO Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (a) Customer Data, including any processing of Customer Data by or on behalf of NGWA BPRO in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including NGWA BPRO’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by NGWA BPRO; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 1 or Section 12.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
4. Mitigation. If any of the Services or NGWA BPRO Materials are, or in NGWA BPRO’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the NGWA BPRO Materials is enjoined or threatened to be enjoined, NGWA BPRO may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the NGWA BPRO Materials materially as contemplated by this Agreement; (b) modify or replace the NGWA BPRO Materials, in whole or in part, to seek to make the NGWA BPRO Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute NGWA BPRO Materials, as applicable, under this Agreement; or (c) by written notice to Customer, terminate this Agreement with respect to all or part of the NGWA BPRO Materials, and require Customer to immediately cease any use of the NGWA BPRO Materials or any specified part or feature thereof.
5. Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND NGWA BPRO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND NGWA BPRO MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

13. Limitations of Liability.

1. EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 3, IN NO EVENT WILL NGWA BPRO OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF NGWA BPRO AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO NGWA BPRO UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
3. Exceptions. The exclusions and limitations in Section 1 and Section 13.2 do not apply to NGWA BPRO’s obligations under Section 12 or liability for NGWA BPRO’s gross negligence or willful misconduct.

14. Limitations of Liability.

1. Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until the date set forth in the Subscription Summary (the “Initial Term”), as may be amended in writing from time to time by the parties.
2. Renewal Term. Following the Initial Term, and each Renewal Term thereafter, this Agreement will continue in effect for a subsequent period of time that is equal to the duration of the Initial Term (each such period, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party elects to terminate this Agreement by giving written notice to the other party of the election to terminate at least ninety (90) days prior to the expiration of the Initial Term or then-current Renewal Term. After the Initial Term, NGWA BPRO may adjust the Fees and other costs, fees or prices for the Services, provided at least ninety (90) days prior to the expiration of the then-current Initial Term or Renewal Term NGWA BPRO provides written notice to Customer of such adjustment(s).
3. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
   1. Either party may terminate this Agreement for convenience, effective on ninety (90) days written notice to the other party, and
   2. NGWA BPRO may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after NGWA BPRO’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 1 , Section 7.1, or Section 9;
   3. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
   4. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
4. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
   1. all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
   2. NGWA BPRO shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) erase all Customer Data and Customer’s Confidential Information from all systems NGWA BPRO directly or indirectly controls, provided that, for clarity, NGWA BPRO’s obligations under this Section 4(b) do not apply to any Resultant Data;
   3. Customer shall immediately cease all use of any NGWA BPRO Materials and (i) promptly return to NGWA BPRO, or at NGWA BPRO’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any NGWA BPRO Materials or NGWA BPRO’s Confidential Information; (ii) permanently erase all NGWA BPRO Materials and NGWA BPRO’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to NGWA BPRO in a signed and notarized written instrument that it has complied with the requirements of this Section 4(c);
   4. notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (ii) NGWA BPRO may retain Customer Data, in the case of each of subclause (i) and (ii) in its then current state and solely to the extent permitted under the Confidentiality Agreement, attached hereto as Exhibit B, and for so long as required by applicable Law; (iv) NGWA BPRO may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course as permitted under the Confidentiality Agreement, attached hereto as Exhibit B; and (v) all information and materials described in this Section 4(d) will remain subject to all confidentiality, security, and other applicable requirements of the Confidentiality Agreement, attached hereto as Exhibit B;
   5. no expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
5. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 9, Section 11.4, Section 12, Section 13, Section 14.4, this Section 14, and Section 15.

15. Miscellaneous.

1. Force Majeure. In no event shall NGWA BPRO be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond NGWA BPRO’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, national or regional emergency, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
2. Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
3. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
4. Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that NGWA BPRO may, without Customer’s consent, include Customer’s name and other indicia in its lists of NGWA BPRO’s current or former customers of NGWA BPRO in promotional and marketing materials.
5. Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 4):
   
   

   If to NGWA BPRO:	National Ground Water Association 601 Dempsey Rd Westerville, Ohio 43082 Attention: Terry S. Morse Email: tmorse@NGWA BPRO.org
   If to Customer:	[Customer] Address: [Address] Attention: [Name] Email: [E-mail]

   Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
7. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, and any other documents incorporated herein by reference, this Agreement shall prevail.
8. Assignment Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of NGWA BPRO. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
9. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
10. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Columbus and County of Franklin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
13. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
14. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 1, Section 7.1, or Section 9 would cause NGWA BPRO irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, NGWA BPRO will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
15. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
16. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.