Last modified: October 17, 2024.

These NPS Prism Terms and Conditions (this “Agreement”), effective as of the date Customer signs an Order Form incorporating these terms (the “Effective Date”), are by and between NPS Prism, LLC a Massachusetts limited liability company with a principal place of business at 131 Dartmouth Street, Boston, MA 02116 ("NPS Prism”) and the entity which executed this Agreement or an Order Form, as indicated in the signature page (“Customer” or “Client”). By signing an Order Form that references this Agreement, Customer agrees to the terms of this Agreement, which governs Customer’s use of the Services. If an individual is entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term “you”, “your” and “Customer” shall refer to such entity. NPS Prism and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

1. Definitions.
   1. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by NPS Prism in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. Aggregated Statistics shall not include Customer Data or Customer Confidential Information.
   2. “Authorized User” means Customer’s employees (i) who are uniquely identified to NPS Prism in an Order Form or otherwise in writing by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
   3. “NPS Prism IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing, including but not limited to proprietary processes, code, software, documentation, frameworks, analytical tools and analysis, industry data and insights, methodology, know how, trade secrets, trademarks and/or other Intellectual Property Rights, survey questions, approach and configurations, reports, including any and all modifications, improvements, and derivative works pertaining thereto. For the avoidance of doubt, NPS Prism IP includes Aggregated Statistics and any information, data, or other content derived from NPS Prism’s monitoring of Customer’s access to or use of the Services but does not include Customer Data.
   4. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is transmitted by or on behalf of Customer or an Authorized User through the Services.
   5. “Documentation” means any information, data and reports accessible or downloadable via the Services as well as NPS Prism’s user manuals, handbooks, and guides relating to the Services provided by NPS Prism to Customer either electronically or in hard copy form.
   6. “Intellectual Property Rights” means a party’s worldwide and common law rights associated with: (i) inventions, including patents, patent applications and statutory invention registrations or certificates of invention, and any divisions, continuations, renewals or re-issuances of any of the foregoing; trademarks, service marks, domain names, trade dress, logos, and other brand source distinctions; (iii) copyrights and works of authorship; (iv) trade secrets and know-how; and (v) other intellectual property rights of any type throughout the world, pre-existing, used or developed during the course of the Services.
   7. “Order Form” means the order form, statement of work, or other confirmation entered into between Customer and NPS Prism setting forth the Services to be provided, cost and term of such Services.
   8. “Services” means NPS Prism’s online platform offering which provides a variety of information on NPS for specific industries, based on survey responses obtained by and on behalf of NPS Prism from customers in such industry, as further detailed in an Order Form.
   9. “Third-Party Products” means the platform on which the Services operates as well as any additional Third-Party Products which may be detailed in an Order Form.
2. Access and Use.
   1. License. Subject to and conditioned on Customer’s payment of Fees (as defined in Clause 4 below) and compliance with all other terms and conditions of this Agreement and the applicable Order Form, NPS Prism hereby grants Customer a non-exclusive, non-transferable right to access and use the Services and Documentation during the Term, solely for use by Authorized Users and for Customer’s internal use, provided that Customer does not remove any proprietary notices from such Documentation and always attributes the Documentation to NPS Prism. For the avoidance of doubt, Customer may also incorporate insubstantial portions, extracts, abstracts or summaries thereof (“Insubstantial Data”) into presentations for internal use in the normal course of Customer’s business so long as NPS Prism is identified as a source of information. Customer shall not use Documentation or Insubstantial Data to make any external inferences regarding third parties who may be referenced therein.
   2. Provision of Access. NPS Prism shall provide to Customer the necessary passwords and network links or connections to allow Customer to access to the Services. Customer acknowledges and agrees that access to the Services by contractors of Customer may require prior approval by NPS Prism.
   3. Authorized Users. Authorized Users will receive access credentials to access the Services. These credentials are granted to individual, named persons and may not be shared. Customer will ensure that all Authorized Users keep these credentials strictly confidential. Authorized Users must notify NPS Prism immediately if their access to the Services is or potentially could be compromised.
   4. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Except as otherwise provided for in Section 2(c), Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
   5. Reservation of Rights. NPS Prism reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the NPS Prism IP.
   6. Suspension. Notwithstanding anything to the contrary in this Agreement, NPS Prism may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) NPS Prism reasonably determines that (A) there is a threat or attack on any of the NPS Prism IP; (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to NPS Prism or to any other customer or vendor of NPS Prism; (C) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities; (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) NPS Prism’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of NPS Prism has suspended or terminated NPS Prism’s access to or use of any Third-Party Products that form part of the Services and/or are required to enable Customer to access the Services; or (iii) in accordance with Section 4(b)(iii) (any such suspension described in subclauses 2(f) (i), (ii), or (iii), a “Service Suspension”). NPS Prism 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 Services following any Service Suspension. NPS Prism shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. NPS Prism 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.
   7. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, NPS Prism may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between NPS Prism and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by NPS Prism. Customer agrees that NPS Prism may use the Aggregated Statistics to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and the other NPS Prism offerings, and disclose the Aggregated Statistics to customers and other third parties as part of the Services or otherwise in connection with its business.
3. Customer Responsibilities.
   1. General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, 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 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.
   2. Third-Party Products. NPS Prism may from time to time make Third-Party Products available to Customer, or the Services may be made available to Customer via Third-Party Products, or the Services may contain features designed to interoperate with Third-Party Products. For purposes of this Agreement, such Third-Party Products may be subject to their own terms and conditions and the applicable flow through provisions. Customer agrees to be bound by the Third-Party Products terms and conditions to which it may be required to agree by accessing the Services. Third Party Products shall have no warranty, support or other obligation to Customer.
4. Fees and Payment.
   1. Fees. Customer shall pay NPS Prism the fees as set forth in any applicable Order Form (the “Fees”).
   2. Unless otherwise set out in the applicable Order Form, invoices are due and payable by wire transfer within 30 days of Customer’s receipt of the invoice, without regard to any delay for purchase order or invoice reference. If Customer fails to make any payment when due, without limiting NPS Prism’s other rights and remedies: (i) NPS Prism may charge interest on the past due amount at the rate of 1% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse NPS Prism for all reasonable costs incurred by NPS Prism in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, NPS Prism may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
   3. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes (including but not limited to VAT, China Business Tax or gross-receipts tax), withholdings, 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 NPS Prism’s income.
   4. NPS Prism shall be entitled to increase the Fees set forth in an Order Form on an annual basis by giving no fewer than thirty (30) days' prior notice to Customer. The applicable Order Form shall be deemed to have been amended accordingly.
   5. Audit Rights. Customer shall maintain records regarding the use of the Services and shall make such information available to NPS Prism upon request. Upon reasonable request, NPS Prism shall have the right to audit Customer’s use of the Services, to verify compliance with the terms of this Agreement, and Customer will promptly pay over any underpayment discovered in the course of such audit, based on NPS Prism’s then-current price list, plus interest.
5. Confidential Information.
   1. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). With respect to NPS Prism, Confidential Information also includes NPS Prism IP.
   2. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder.
   3. Notwithstanding the foregoing, a receiving Party may disclose Confidential Information of the disclosing Party to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law. Prior to making such disclosure, to the extent legally permissible, the receiving Party shall provide the disclosing Party with (i) written notice of such requirement so that the disclosing Party may seek, at its sole cost and expenses, a protective order or other remedy; and (ii) reasonable assistance, at the disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. In addition, to the extent NPS Prism is requested by Customer or required by subpoena or similar legal process to produce NPS Prism’s materials or personnel with respect to Services to you, provided that NPS Prism is not a party to the proceeding, Customer will reimburse NPS Prism for the fees and out-of-pocket expenses of its outside counsel which NPS Prism incurs in responding to such a request.
   4. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed upon Disclosing Party’s request.
   5. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
   6. Customer’s use of the Services is subject to the Privacy Policy, a current version of which is available at www.NPS Prism.com/about/privacy/.
   7. Customer acknowledges that the Services are subject to United States export control and economic sanctions laws, regulations and requirements and to import laws, regulations and requirements of foreign governments. Customer agrees that (1) all use, exports, and imports related to this Agreement will be in compliance with these laws and regulations and (2) Customer shall not allow any third party to export, re-export, or transfer any part of the Services in violation of these laws and regulations.
   8. NPS Prism will not publicly disclose, in a press release, publication, analyst meeting or any other public context, the fact that Customer is a NPS Prism subscriber, or disclose to any third party any details of the Services provided to Customer, without Customer’s prior approval.
6. Intellectual Property Ownership; Feedback.
   1. NPS Prism IP. Customer acknowledges that, as between Customer and NPS Prism, NPS Prism owns all right, title, and interest, including all intellectual property rights, in and to the NPS Prism IP and, with respect to Third-Party Products, the applicable third-party NPS Prisms own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Customer shall not: (i) sell, rent, lease, sublicense or otherwise transfer or distribute NPS Prism IP; (ii) copy, alter, modify, translate, reverse engineer, decompile or disassemble NPS Prism IP; (iii) create derivative works based upon NPS Prism IP; (iv) destroy or otherwise remove any proprietary notices or labels on or embedded within the NPS Prism IP; or (v) show or demonstrate the NPS Prism IP to a third party.
   2. Customer Data. NPS Prism acknowledges that, as between NPS Prism and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to NPS Prism a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as contemplated by this Agreement or as may otherwise be necessary for NPS Prism to provide the Services to Customer.
   3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to NPS Prism by mail, email, telephone, or otherwise, suggesting or recommending changes to the NPS Prism IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), NPS Prism is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to NPS Prism on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and NPS Prism is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although NPS Prism is not required to use any Feedback.
7. Warranties.
   1. Limited Warranty. NPS Prism warrants to Customer that the Services will operate in substantial conformity with the Order Form. NPS Prism does not warrant that Customer’s use of the Services will be uninterrupted or error-free. NPS Prism’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in NPS Prism’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to correct the reported non-conformity, or if NPS Prism determines such remedy to be impracticable, to allow Customer to terminate the applicable subscription Term and receive as Customer’s sole remedy, a refund of any pro-rated fees Customer has pre-paid for use of the Services which Customer has not received as of the date of the warranty claim.
   2. Exclusions. The above warranty shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared; or (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or Services.
   3. Warranty Disclaimer. THE SERVICES AND ALL NPS Prism IP ARE PROVIDED “AS IS” AND NPS Prism HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NPS Prism 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. NPS Prism MAKES NO WARRANTY OF ANY KIND THAT THE NPS Prism IP, OR ANY SERVICES 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 INFORMATION CONTAINED ON, OR COMMUNICATED VIA THE SERVICES IS PROVIDED FOR GENERAL INFORMATION ONLY AND IS NOT INTENDED TO PROVIDE PROFESSIONAL ADVICE. NPS Prism DOES NOT ACCEPT RESPONSIBILITY OR LIABILITY TO CUSTOMER OR ANY THIRD PARTIES IN RELATION TO THE USE OF SUCH MATERIAL. ANY ACTION CUSTOMER OR AN AUTHORIZED USER TAKES BASED UPON THE INFORMATION ON THE SERVICES IS STRICTLY AT CUSTOMER’S OR SUCH AUTHORIZED USER’S OWN RISK, AND NPS Prism WILL NOT BE LIABLE FOR ANY ERRORS OR OMISSIONS, OR ANY LOSSES AND DAMAGES IN CONNECTION WITH THE USE OF OR RELIANCE UPON ANY SUCH INFORMATION, OR FOR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION.
8. Indemnification.
   1. NPS Prism Indemnification.
      1. NPS Prism shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Customer promptly notifies NPS Prism in writing of the claim, cooperates with NPS Prism, and allows NPS Prism sole authority to control the defense and settlement of such claim.
      2. If such a claim is made or appears possible, Customer agrees to permit NPS Prism, at NPS Prism’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If NPS Prism determines that neither alternative is reasonably available, NPS Prism may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and refund of any pro-rated Fees Customer has pre-paid for use of the Services which Customer has not received as of the date of the written notice.
      3. This Section 8(a) will not apply (i) to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by NPS Prism or authorized by NPS Prism in writing; (B) modifications to the Services not made by NPS Prism; or (C) Customer Data or (D) Third-Party Products, or (ii) if NPS Prism is providing the Services at no cost to Customer.
   2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at NPS Prism’s option, defend NPS Prism its successors, parents, subsidiaries, affiliates, shareholders, attorneys, officers, agents, directors and employees (each a “NPS Prism Indemnified Party”) from and against all Losses which such NPS Prism Indemnified Party may incur, arising out of, relating to or resulting in any way from Customer’s (or an Authorized User’s) breach of its obligations under Section 2 and/or Section 5 of this Agreement; provided that Customer may not settle any Third-Party Claim against NPS Prism unless NPS Prism consents to such settlement, and further provided that NPS Prism will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice..
   3. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND NPS PRISM’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SUBSCRIPTION INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitations of Liability. IN NO EVENT WILL NPS Prism BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND 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 SUBSCRIPTION, IN EACH CASE REGARDLESS OF WHETHER NPS Prism WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL NPS Prism’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, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO NPS Prism UNDER THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination.
    1. Term. This Agreement takes effect on the Effective Date and will remain in effect until all applicable Order Forms have expired or been terminated.
    2. Termination. In addition to any other express termination right set forth in this Agreement:
       1. NPS Prism may terminate this Agreement or any Order Form hereunder, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due, and such failure continues more than 10 days after NPS Prism’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2 or Section 5 of this Agreement;
       2. NPS Prism may terminate this Agreement or any Order Form hereunder for convenience upon ninety (90) days prior written notice to Customer;
       3. either Party may terminate this Agreement or any Order Form hereunder, effective on written notice to the other Party, if the other Party materially breaches this Agreement or an Order Form, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
       4. either Party may terminate this Agreement or any Order Form hereunder, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
    3. Effect of Expiration or Termination. Termination of this Agreement shall be deemed termination of all Order Forms entered hereunder. Termination or expiration of any Order Form shall not be deemed termination of this Agreement. In the event of termination, NPS Prism shall be entitled to payment for Services up to the effective date of termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the NPS Prism IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the NPS Prism IP and certify in writing to the NPS Prism that the NPS Prism IP has been deleted or destroyed. Notwithstanding, Customer may retain i) Insubstantial Portions, ii) insight deck readouts that may be provided by NPS Prism to Customer from time to time, and iii) electronic records automatically backed up in the ordinary course of business for disaster recovery purposes. Any information so retained shall remain subject to the terms of this Agreement for so long as it is retained. 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.
    4. Survival. This Section 10(d) and Sections 1, 4, 5, 6, 7(c), 8, 9, 11 and 12(a) survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
    1. Data Protection. The Services will not contain data that can identify individuals, other than the Authorized User details (such as names, email address and other contact information) (the “Personal Data”). NPS Prism will be acting as the data controller of the Personal Data and agrees to i) only process such Personal Data for the sole purpose of providing the Services to Customer; ii) ensure that it implements and maintains technical and organizational measures at a level appropriate to the security of the Personal Data; iii) notify Customer promptly if NPS Prism suffers any incident that may impact the Personal Data; iv) not disclose the Personal Data to any third party without Customer’s prior written consent, save as required by applicable law or in accordance with this Agreement; v) upon written request, provide Customer with details of NPS Prism’s processing of the Personal Data, including the technical and organizational measures NPS Prism has employed to protect the Personal Data; and vi) delete the Personal Data at the end of the Term.
    2. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Order Forms, 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 terms of this Agreement and any Order Form, the following order of precedence governs: (i) first, this Agreement; (ii) second, the Order Form, except in the event the Order Form contains provisions specifically amending the terms of this Agreement, in that case, the Order Form shall govern.
    3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
    4. Force Majeure. In no event shall either party be liable, 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 such party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, 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.
    5. 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. Notwithstanding the foregoing, occasionally NPS Prism may, in its discretion, make immaterial changes to its Privacy Policy or to any service level agreement contained in an Order Form, or revise this Agreement from time to time to address changes in the functionality of the Services or changes in NPS Prism policy. NPS Prism will provide Customer with prior notice before any revisions to this Agreement take effect.
    6. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    7. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts 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 Commonwealth of Massachusetts.
    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 NPS Prism. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party 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.