Terms of Service - Focal Point Solutions Group

This Terms of Service (this “Agreement”) is between Focal Point Solutions Group, LLC (“Company” or “FPSG”) and Customer (as defined below) and governs any order form(s) entered into between Customer and Company referencing this Agreement (including any addenda, amendments and supplements thereto, “Order”).

By accepting this Agreement (either by clicking a box indicating your acceptance, executing an Order Form or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement), you: (1) agree to this Agreement on behalf of the organization, company, or other legal entity for which you act (“Customer”); and (2) represent that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement or use the Services.

The parties agree as follows:

Definitions. Capitalized terms not defined herein will have the meaning ascribed to them in the Order Form.
1. “Applicable Law” means all international, federal, state, provincial, and local laws, rules, regulations, binding regulatory guidance, directives, and governmental requirements applicable to an applicable party’s performance under this Agreement.
2. “Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, industrial design rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all registrations and applications for any of the foregoing.
Hardware.
1. Title and Risk of Loss. On the terms and subject to the conditions of the Agreement, Company agrees to make available to Customer, and Customer agrees to obtain from Company, the Hardware during the Term on a limited, as-a-service basis. Title to the Hardware remains with Company throughout the Term, and Customer acquires no right, title, or interest in the Hardware, except the limited rights expressly provided herein. Risk of Loss passes to Customer upon delivery of the Hardware to Company’s carrier, and Customer shall bear all risk of Loss until the Hardware is returned to Company in accordance with the Agreement. Customer shall immediately notify Company in writing of any such Loss.
2. Hardware Upgrades. Company may release new hardware during the Term. If Customer is renting any Hardware under the Agreement and desires to obtain new hardware, Company will provide Customer the terms under which Customer may obtain such new hardware—which may include, without limitation, a one-time upgrade fee, renegotiating the annual price, and/or extending the Term. The parties must enter into an executed amendment specifying such terms prior to Company providing Customer the new hardware.
3. Hardware Obligations and Restrictions. Customer will (1) protect the Hardware with the same degree of care that Customer protects its own assets of a similar nature and value but, in any event, with reasonable care, (2) properly, safely, and securely handle and store the Hardware and prevent the deterioration or damage of the Hardware (ordinary wear and tear excepted), (3) except in connection with the Services, not commingle the Hardware with the property of Customer or with that of any person or entity, (4) use the Hardware only for the purpose set forth in the Agreement, (5) follow Company’s instructions regarding the storage, use, and maintenance of the Hardware, including any instructions set forth in the Order Form or documentation made available by Company relating to the Hardware (“Documentation”), (6) not attach any Hardware as a fixture to any real estate; (7) not pledge, sell (or purport to sell), sub-lease, or otherwise part with possession of any Hardware, or file or permit to be filed any lien or security interest against any Hardware; (8) except with Company’s express written consent, alter, tamper with, or attempt to repair any Hardware; (9) not remove any proprietary notices or labels, or any warning or other informational labels from any Hardware; (10) not reverse engineer, disassemble, or otherwise attempt to discover the underlying structure, ideas, know-how, algorithms, or other technology relevant to any Hardware; (11) not circumvent any security features of any Hardware; and (12) not access or use any Hardware to develop a competing product or service.
4. Hardware Return.
  1. Options. At least 30 days prior to the expiration of the Term, Customer will notify Company (or if Customer terminates an Order, Customer will notify Company together with Customer’s termination notification) whether Customer will—unless otherwise agreed by the parties—either (i) return the applicable Hardware to Company or (ii) Continue to use the applicable Hardware in connection with a new Order From. If Company terminates the Agreement or an Order, or if Customer fails to timely notify Company of its election, Company will, at its option, either (a) instruct Customer to return the applicable Hardware to Company, or (b) invoice Customer the applicable fair market value (as determined by Company) of the Hardware.
  2. Returning Hardware. If Customer elects to, or is instructed to, return Hardware pursuant to the foregoing Section 2.D(1), then (A) prior to expiration of the Term, if Customer elects to return Hardware, or (B) within 30 days following Customer receiving Company’s instruction to return Hardware, Customer shall at its risk and expense return the Hardware in the same condition as when originally delivered to Customer (ordinary wear and tear excepted), free and clear of all liens and rights of third parties.
  3. Failure to Return. If Customer does not return Hardware in accordance with this Section in a timely manner, Customer shall continue to comply with all the terms and conditions of the Agreement, and shall pay the prorated daily amount of the Monthly Managed Services and Hardware Rental Recurring Cost provided in the Order Form for each day from the expiration of the Term until the date Customer returns or pays for the Hardware to Company as required under this Section. Customer’s payment of any amounts under this Section will not constitute Company’s waiver of Customer’s failure to perform any obligation under the Agreement.
Company Software.
1. Company Software. On the terms and subject to the conditions of this Agreement, Company grants to Customer a limited, non-exclusive, nontransferable, non-sublicensable license to use and run software, firmware, applications, code and other computer programs, including, without limitation, the right to use the Nuspire managed services, whether installed locally on Hardware (or any of its components) or provided as software as a service (except to the extent containing Software Open Source Components, “Company Software”) in machine-readable object code form only, on such Hardware, in each case, solely in connection with Customer’s use of the Services pursuant to the Order, during the Term, and in each case, in strict accordance with this Agreement and Documentation.
2. Restrictions. Except as may be expressly permitted in this Agreement, Customer will not, and will not authorize third parties to: (1) license, sub-license, sell, transfer, distribute, share, rent, lease, or otherwise permit third parties to use the Company Software without Company’s prior consent; (2) use the Company Software to provide services to third parties (e.g., as a service bureau); (3) circumvent or disable any security or other technological features or measures of the Company Software; (4) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Company Software; (5) modify, translate, or create derivative works based on the Company Software; (6) remove any proprietary notices or labels from the Company Software; (7) use the Company Software in a manner that violates or attempts to circumvent Applicable Law; (8) use the Company Software to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Company Software; (9) use the Company Software to develop a competing product or service; or (10) access or use the Company Software in the treatment or management of any diseases or illnesses.
Professional Services.
1. Implementation and Support. Subject to Customer’s compliance with this Agreement, Company will provide the security monitoring and support described in an executed Order Form (together with all other professional services provided by or on behalf of Company to Customer in connection with this Agreement, “Professional Services”). Customer is responsible for all use of the Hardware (except for any Professional Services to be provided by Company and set forth in the Order From).
2. Cooperation. Customer will (1) cooperate with Company in all matters relating to the Professional Services, including by providing access to Customer’s premises as necessary; (2) ensure Customer local administrative personnel will be on-hand to assist with the documentation of the existing environment; (3) provide Company with connectivity to facility and servers to be included in the project including internet access and telephone communications abilities; (4) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform its obligations; (5) ensure its employees, agents, and contractors do not encourage, allow, or engage in any discriminatory, harassing, threatening, violent, or otherwise offensive, tortious, or criminal behavior towards or against Company’s employees, agents, or contractors; and (6) otherwise take such actions or provide such information or materials as Company deems reasonably required to provide the Professional Services. If Company’s performance under this Agreement is prevented or delayed by any failure of Customer to comply with its obligations under this Section, or by any other act or omission of Customer or its agents, subcontractors, consultants, or employees, Company shall not be deemed in breach of this Agreement or otherwise liable to Customer for any costs, charges, liabilities, or losses sustained or incurred by Customer, in each case, to the extent arising from such prevention or delay.
Data.
1. Customer hereby grants Company a worldwide, non-exclusive, irrevocable, royalty-free, fully-paid, sublicensable license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute all data and content that relates to Customer and is captured by the Hardware (“Customer Data”) in any media or distribution methods now known or later developed, solely to enable for Company to provide the Services, Company Software, and Professional Services to Customer during the applicable Term, and in accordance with the settings on Customer’s account and the features of the Services and Company Software Customer elects to utilize. For the avoidance of doubt, “Customer Data” does not include information relating to the provision, use and performance of various aspects of the Services, Company Software, or Professional Services and related systems and technologies (including information concerning Customer’s and end users’ use of the various features and functionality of the Services, Company Software, or Professional Services and analytics and statistical data derived therefrom) (“Usage Data”).
2. Company may (1) collect, analyze and otherwise process Usage Data internally for its business purposes, including for the purposes of security and analytics; to improve and enhance the Services, Company Software, or Professional Services; or for other development, diagnostic and corrective purposes in connection with the Services, Company Software, Professional Services, or other Company products or services, (2) disclose Usage Data in an aggregated and/or de-identified form in connection with its business in a manner that does not identify Customer, and (3) disclose Customer Data to its third-party service providers for the purpose of providing the Services under this agreement.
Intellectual Property.
1. Company IP. Company’s proprietary Intellectual Property Rights in, under, or relating to Company Software, Hardware, Documentation, and any other intellectual property or proprietary information provided or made available to Customer in connection with this Agreement (including all updates, improvements, and other modifications thereto, “Company Technology”), as well as all Feedback, and Usage Data, including all Intellectual Property Rights therein (collectively, the “Company IP”), is owned by Company and/or its licensors. No ownership rights in the Company IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the Company IP except for the limited express rights granted in this Agreement.
2. Confidential End User Data. Customer shall not provide Company with access to any confidential data of its end user clients or customers, including, without limitation, any protected health information.
3. Customer Data. Customer owns the Customer Data, including all Intellectual Property Rights therein. No ownership rights in the Customer Data are transferred to Company by this Agreement. Company does not have any rights to the Customer Data except for the limited express rights granted in this Agreement.
4. Software Open Source Components. The Company Software may include open source software, including software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or another license that is approved by the Open Source Initiative (“Software Open Source Components”). Any use of Software Open Source Components by Customer is subject to and governed solely by the terms and conditions of the applicable open source license agreement(s).
5. Feedback. If Customer gives Company feedback, comments, or suggestions concerning the Services (collectively, “Feedback”), Customer hereby assigns to Company all of Customer’s right, title, and interest to the Feedback, including all Intellectual Property Rights relating thereto or arising therefrom.
Confidentiality.
1. “Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Company’s Confidential Information includes non-public information regarding features, functionality, and performance of the Services.
2. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 7, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by Applicable Law.
Fees and Payment.
1. Fees and Payment.
  1. Customer will pay Company all fees described in all Orders in accordance with the terms therein (the “Fees”). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. All Fees are non-refundable, except as otherwise specified in this Agreement.
  2. Unless otherwise specified in an Order Form or this Agreement, full payment is due upon receipt of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by Applicable Law, whichever is lower, plus all expenses of collection (including reasonable attorney’s fees), and may result in immediate termination of use of the Services. Customer will pay all Fees in U.S. Dollars.
2. Expenses. If travel is required, Customer will pay reasonable expenses incurred by Company in the provision of the Services shall include travel time, travel expenses, accommodation and living costs.
3. Taxes. Other than federal and state net income taxes imposed on Company, Customer will bear all taxes, duties, and other governmental charges relating to the Services.
4. Change of Scope. Any change in the scope of work specified in an Order Form that requires additional services from Company will be under a Project Change Request (described below) (“PCR”) and Customer will pay any additional fees in advance.
5. Additional Fees and Delays. Delays caused by the Customer in delivering requested or required information, or caused by failure to perform Customer’s obligations under this Agreement, may result in changes to the project schedule and/or additional charges. Company will inform Customer as soon as is practical of this event and the change will be processed in accordance with the PCR process.
Term and Termination.
1. Term. The terms of this Agreement are effective as of the execution of the first Order Form executed between the Company and Customer and will continue to be effective during the Term as defined in the Order Form (the “Term”).
2. Termination for Convenience. Company may terminate an Order Form for convenience at any time upon 30 days’ prior written notice. Customer may terminate an Order Form for convenience at any time upon 60 days’ prior written notice. Customer shall be obligated to make payment for the then applicable twelve (12) month period for the Services.
3. Termination for Breach; Insolvency; No Order. Either party may terminate this Agreement or any Order Form, effective upon written notice to the other party, if the other party materially breaches this Agreement and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 45 days of receiving notice of it. Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property. Additionally, either party may terminate this Agreement immediately upon written notice to the other if no Order Form is in effect for a period exceeding 45 consecutive days.
4. Effect of Termination. Termination of this Agreement will automatically terminate all active Orders, but termination of a single Order Form will not result in termination of this Agreement or any other Order Forms. Upon the termination of this Agreement, or an Order Form, all rights and licenses granted by Company to Customer under this Agreement or the applicable Order Form will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
5. Post-Termination Obligations.
  1. Upon a party’s request following any termination of this Agreement, the other party will delete any of the requesting party’s Confidential Information then held by the other party. If Customer terminates this Agreement for Company’s material breach or if Company terminates this Agreement under Section 11.B (IP Infringement), Company will pay Customer a pro rata refund of Fees for services not provided and Customer will pay in full for any terminated Orders up to and including the last day on which the Services are provided. If this Agreement expires or is terminated for any other reason: (a) Company will not refund Customer any Fees paid in advance of such expiration or termination; and (b) if Customer has not paid all Fees upfront, within ten days after such expiration or termination, Customer will pay Company all remaining Fees owed under any terminated Orders so that Company is paid the full annual amount agreed to at the commencement of such Term.
  2. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1, 3.D, 3.E, 5, 6, 7, 9.D, 9.E, 10.D, 1 11, 12, and 15.
Warranties and Disclaimer.
1. Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution and delivery of this Agreement by the executing party do not violate Applicable Law or the terms of any other agreement to which it is a party or by which it is otherwise bound.
2. Company Warranties.
  1. Company represents and warrants to Customer that: (a) Company will perform Professional Services in a professional and workmanlike manner; and (b) Company has the necessary rights to authorize Customer to use the Services in accordance with this Agreement.
  2. Hardware Warranty.
    1. Company represents and warrants to Customer that the Hardware will (“Hardware Warranty”) (a) conform to the Documentation in all material respects upon delivery, and (b) be free from material defects in workmanship and materials under normal and proper use and storage. The Hardware Warranty will be effective for the applicable Term (“Warranty Period”).
    2. The Hardware Warranty does not cover (a) Hardware (1) that has not been used in accordance with this Agreement; (2) that has been altered in any way by Customer or any third party not under the control of Company, or their employees or agents; (3) that is used in an environment other than as specified in the Documentation; (4) where such nonconformity in the Hardware is due to abuse, neglect, or other improper use; (5) reported errors or nonconformities that cannot be reproduced by Company, working, in good faith, with Customer’s assistance; or (6) without limiting the foregoing, any other defect to the extent caused by Customer’s or any third party’s damage to, or misuse or abuse of Hardware.
    3. If within the Warranty Period, Hardware does not comply with the Hardware Warranty, Company will repair and/or replace the Hardware in a reasonable timeframe and manner. Except as otherwise expressly stated in this Agreement, this Section states Customer’s sole and exclusive remedy with respect to specifications-conformity and defects in workmanship, design, and materials.
3. Customer Warranty. Customer represents and warrants to Company that: (1) Customer has the necessary rights to authorize Company to use the Customer Data in accordance with this Agreement, and such use by Company of Customer Data will not infringe any third-party right, including any Intellectual Property Right, privacy, or personality right; (2) Customer will use the Services in compliance with this Agreement, the Documentation, and Applicable Law; and (3) Customer will not provide Company access to any data that constitutes Protected Health Information or Sensitive Personal Data under applicable laws.
4. Disclaimer. Except for the limited warranties described in this Section 10, Company makes no other express or implied warranties with respect to the Services, Company IP, or otherwise, and specifically disclaims all implied and statutory warranties, including the implied warranties of non-infringement of third-party rights, merchantability, satisfactory quality, accuracy, title, and fitness for a particular purpose, and any warranties arising from course of dealing, usage, or trade practice. Except for the limited warranties described in this Section 10, the Services and Company IP are provided “as is,” and Company does not make any representation, warranty, or guarantee with respect to the accuracy or completeness of any output provided through the Services, and does not represent or warrant that use and access of the Company Software will always be available, accessible, uninterrupted, timely, secure, or error-free.
Indemnification.
1. By Customer.
  1. Defense. At Company’s option and request, Customer will defend Company and its affiliates (collectively, the “Company Indemnified Parties”) from any actual or threatened third-party claim, proceeding, suit, action, or inquiry arising out of or based on Customer’s breach of Section 10 (Warranties and Disclaimer), or bodily injury or damage to tangible property to the extent arising from Customer’s negligent or more culpable acts or omissions (each a “Customer Indemnifiable Claim”). If a Company Indemnified Party requests Customer to defend it from any Customer Indemnifiable Claim, Company and the Company Indemnified Party will: (a) give Customer prompt written notice of the Customer Indemnifiable Claim; (b) grant Customer full and complete control over the defense and settlement of the Customer Indemnifiable Claim; (c) provide assistance in connection with the defense and settlement of the Customer Indemnifiable Claim as Customer may reasonably request; and (d) comply with any settlement or court order made in connection with the Customer Indemnifiable Claim. Notwithstanding the previous sentence, Customer will not enter into any settlement that involves an admission of guilt or liability of Company without Company’s prior written consent. Company may participate in the defense of a Customer Indemnifiable Claim at its own expense and with counsel of its own choosing.
  2. Indemnification. Customer will indemnify the Company Indemnified Parties from and pay: (a) all damages, costs, fines, judgements, expenses, and attorneys’ fees reasonably incurred by Company Indemnified Parties in any Customer Indemnifiable Claim); and (b) all amounts that Customer agrees to pay to any third party to settle any Customer Indemnifiable Claim.
2. IP Infringement. If Customer’s use of the Services in accordance with this Agreement is held to infringe (or if Company reasonably believes will be held to infringe) any third-party Intellectual Property Rights, Company may, at its option and expense: (1) modify the Services to make it non-infringing; or (2) obtain a license that permits Customer to continue using the Services. If Company does not believe either option is reasonably practicable, Company may terminate this Agreement upon written notice to Customer. This Section 11 states Company’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party Intellectual Property Rights arising from Customer’s use of the Services.
Limitation of Liability.
1. Exclusion of Damages. Company will not be liable to Customer for any lost profits, loss of data, loss of goodwill, or loss of business, or any consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, even if Company is apprised of the likelihood of such damages occurring. Company will not be liable to Customer or any end user for any physical injury or death related to an end user’s use of the Services, except if such physical injury or death is the result of Company’s gross negligence or willful misconduct.
2. Damages Cap. Company’s total liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort (including negligence), or otherwise, will not exceed the total amount paid by Customer to Company during the twelve (12) months immediately preceding the claim (determined as of the date of any final judgment in an action).
3. Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 12 (Limitations of Liability) will apply solely to the extent permitted by Applicable Law. Each party agrees that the limitations specified in this Section 9 will apply even if any remedy specified in this Agreement is found to have failed of its essential purpose.
Project Control Change Procedure.
1. If a change to the Professional Services is required, the parties agree to use a PCR as the vehicle for communicating change. The PCR must be in writing and describe the change, the rationale for the change and the effect the change will have on the project. The designated lead of the requesting party will review the proposed change and determine whether to submit the request to the other party. Each Party will review the proposed change and approve it for further investigation or reject it. Company will specify any charges for such investigation. If the investigation is authorized, the Parties will sign the PCR that will constitute approval for the investigation charges. Customer will pay upfront for the costs of the PCR before Company starts providing services as agreed in the PCR the investigation will determine the effect that the implementation of the PCR will have on price, schedule and other terms and conditions of the Proposal. A written Change authorization and/or PCR must be signed by both Parties to authorize implementation of the investigated changes.
Third-Party Services. Company and third parties may incorporate third-party products or services, including plugins, mobile applications, integrations, and related services (“Third-Party Services”) into its Services. Company does not guarantee the continued availability of any Third-Party Services, including, without limitation, Nuspire managed services (or any integration with Third-Party Services or related Services features), and if such Third-Party Services or related features are discontinued, Customer will not be entitled to any refund, credit, or other compensation.
Miscellaneous.
1. Export. If Customer is not located in the United States, Customer acknowledges that the delivery of any Hardware or Company Software under this Agreement may be subject to obtaining export and/or import authorizations from applicable authorities, and that this process may considerably delay or prevent the delivery and/or impact Company’s ability to provide maintenance and support. Customer shall support Company in obtaining any required authorization by providing information and/or declarations, e.g. End Use Certificates, as may be requested by Company. Customer shall be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Services by Customer. Without limiting Section 8.B Customer is responsible for all import-related fees, duties, and taxes.
2. Subcontractors. Company may use subcontractors or other third parties to perform its obligations under this Agreement, but Company will remain responsible for all such obligations.
3. Publicity. Company may publicly list Customer as a customer of Company and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communications with existing or potential Company customers, resellers, or investors.
4. Governing Law; Dispute Resolution. This Agreement and the rights and obligations of the parties created hereby will be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law rules. The parties will reasonably endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall be litigated solely and exclusively in the state or federal courts located in New York, New York. Each party hereby submits to the personal jurisdiction of such courts for purposes of any such actions or proceedings.
5. Injunctive Relief. If either party breaches Sections 3.D or 7, the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available to it at law or in equity, seek injunctive or other equitable relief in response to any such breach or a threat thereof.
6. Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
7. Assignment. Customer may not assign this Agreement or delegate its performance without Company’s prior written consent, and any attempt to do so is void. Company may assign this Agreement or delegate its performance without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
8. Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
9. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
10. Entire Agreement. This Agreement (including any Orders and any terms incorporated herein) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter (including any nondisclosure agreements entered into in anticipation of this Agreement). Any additional provisions (including any “click wrap” terms, terms referenced via URL, or otherwise) in any Order Form or other document provided by Customer will be void and have no binding effect on the Company. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of the Agreement. Each Order Form is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order, this Agreement will control unless the Order Form states that a specific provision of this Agreement will be superseded by a specific provision of the Order Form.
11. Amendment. Company may amend these Service Terms by posting an updated version on www.focalpointsg.com/TOS/. By continuing to use the Services after updated Service Terms are posted, Customer agrees to be bound by the updated terms.
12. Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
13. No Third-Party Beneficiaries. Other than Company Indemnified Parties, there are no third-party beneficiaries of this Agreement.
14. Notices. All notices under this Agreement must be in writing and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. All notices to Customer will be sent to the address listed on the Order Form unless otherwise specified by Customer. All notices to Company will be sent to the address set forth in the Order Form.
15. Force Majeure. Company will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Company’s reasonable control (a “Force Majeure Event”), so long as Company uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Company to delay or fail to perform its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement upon written notice to the other party.
16. Assignment. Either party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, sale of all or substantially all of its assets, transaction or series of related transactions that results in the transfer of fifty percent (50%) or more of the outstanding voting power of the assigning party, or other change of control event, provided that any such assignee agrees to be bound by the terms and conditions of this Agreement. Customer may not otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Company, and any attempted assignment or delegation without such consent will be void. Company may assign this Agreement in whole or part, including through the assignment of one or more Order Form to its affiliates that own and/or operate facilities in various locations to provide Services specified on such Order Form (“Affiliates”). Such Affiliates will perform the Services in accordance with, and subject to, the terms and conditions of this Agreement and the applicable Order. Company may act as agent of any Local Entity, and in such capacity would continue to invoice Customer for Services rendered, manage Order Form acceptance and Service delivery hereunder and may exercise and enforce other rights on behalf of such Affiliates. Notwithstanding any assignment to a Local Entity, Company will remain responsible for the obligations to provide such Services in accordance with the applicable Order Form and this Agreement. In addition, Company may delegate the performance of certain Services to third parties, including Affiliates provided that Company will remain responsible for the obligations to provide such Services in accordance with the applicable Order Form and this Agreement. This MSA will bind and inure to the benefit of each party’s successors and permitted assigns.
17. Interpretation. Any heading, caption, or section title contained in this Agreement is for convenience only, and in no way defines or explains any section or provision. Any use of the term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.”
18. Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.

[End of Service Terms]