Terms & Conditions
SERVICE TERMS & CONDITIONS
This Service Terms & Conditions is entered into by and between National Propane Gas Association (“NPGA”) and the named entity identified in the Order Form (defined below), or if no entity is identified then the named individual, (“Client”) and will be effective upon submission of the Order Form. The Order Form and this Service Terms & Conditions shall be deemed accepted by Client upon submission of the Order Form, which may be through an online application, together with any associated amendments and all integrated exhibits thereto and any (other) Order Forms mutually agreed upon by NPGA and Client (collectively herein referred to as the “Agreement”). NPGA and Client are each a “Party” and together the “Parties”. Capitalized terms used in this Service Terms & Conditions, but not otherwise defined herein, will have the meanings given to them in the attached or associated order form(s) agreed to by the Parties (“Order Form”). In the event of any conflict between any provision of an Order Form and this Service Terms & Conditions, such conflict will be resolved by giving precedence to the Service Terms & Conditions. Client’s additional terms and conditions (e.g., purchase order or invoice), if any, will be invalid and non-binding, even if received or signed by NPGA.
1 LICENSE GRANT.
1.1 Grant of License; Restrictions. NPGA grants to Client a non-exclusive, non-sublicensable, non-transferable, and limited license to use the software, services, or platform offering(s) identified in the Order Form (“NPGA Service(s)”), including any associated documentation made available by NPGA or delivered (or provided) with the NPGA Service(s) (“Documentation”), for the term set out in the Order Form, or if not specified, then one year or until completion of the NPGA Services, whichever occurs first. The NPGA Services shall include the provision of Entry-Level Driving Training (theory and behind-the-wheel) to Client (if an individual) or to Client’s Authorized End Users pursuant to the Federal Motor Carrier Safety Administration’s (“FMCSA”) Entry-Level Driver Training Requirements on and After February 7, 2022 as set forth in 49 C.F.R. Part 380. The NPGA Services will, in part, be provided through the Learning Management System maintained by the Propane Education and Research Council. Upon successful completion by the Client (if an individual) or an Authorized End User of the training administered by NPGA, NPGA shall electronically transmit a training certification to the FMCSA for such Client or Authorized End User. Access and use of the NPGA Service(s) by individual end users may be subject to additional online terms or policies, including but not limited to the Propane Education and Research Council’s Terms of Use (“PERC Terms of Use”) for its Learning Management System. Click here (https://propane.com/privacy-policy/) for the PERC Terms of Use, and here (https://www.npga.org/privacy-policy/) for the NPGA Privacy Policy. NPGA and/or its third-party licensors may set other online access requirements (for credentials and control) for permissible access to and use of the NPGA Service(s). Under this Service Terms & Conditions, “Authorized End Users” of the NPGA Service(s) include Client’s employees or contractors, or if Client is an individual, then Client and any agent authorized by Client to use the NPGA Services.
Client represents, on his/her/its behalf and on behalf of his/her/its Authorized End Users, that they will comply with U.S. Department of Transportation regulations set forth in Title 49 of the Code of Federal Regulations Parts 40, 382, 383, and 391, as well as State and/or local laws, related to controlled substances testing, age, medical certification, licensing, and driving record, and that all Authorized End Users hold a valid commercial learner’s permit or commercial driver’s license, and such license shall not be cancelled, suspended, or revoked during the term.
NPGA shall have the right, after reasonable notice and at reasonable times, to inspect, audit, and copy all records which concern the performance of the NPGA Services and this Agreement during the term and for three (3) years after the expiration or earlier termination of this Agreement, or any longer retention period required by applicable law. In the event of such audit, Client shall comply with the reasonable requests of NPGA and its representatives. Client will also allow an audit or investigation of the Client to be completed by FMCSA or its authorized representatives at any time
Except as otherwise stated in an Order Form, Client will not, without express written consent from NPGA (i) permit any third parties or their employees, contractors, or other affiliates to use the NPGA Service(s) or maintain or operate the NPGA Service(s) on Client’s behalf; (ii) use the NPGA Service(s) for the benefit of any third party, including to process the data of any third party; (iii) disassemble, reverse engineer, or reverse compile the NPGA Service(s) in whole or in part; (iv) modify, adapt, alter, or create derivative works from the NPGA Service(s); (v) merge the NPGA Service(s) with other software; (vi) remove any proprietary notices from the NPGA Service(s) or Documentation; or (vii) use the NPGA Service(s) other than as described in the Documentation or as directed by NPGA. To the extent Client or its Authorized End Users provides NPGA with any feedback or suggestions regarding NPGA or the NPGA Service(s), Client hereby grants, on his/her/its behalf and on behalf of his/her/its Authorized End Users, to NPGA a worldwide, royalty-free, fully-paid-up, transferable, sublicensable, irrevocable, and perpetual license to use or incorporate such feedback or suggestion(s) in NPGA’s sole discretion.
1.2 Proprietary Rights. NPGA or its licensor(s) owns all intellectual property rights in and to the NPGA Service(s), Documentation, and all related materials and all derivative works thereof. There is no transfer or assignment by NPGA of any ownership right and NPGA reserves all rights not expressly granted under this Service Terms & Conditions.
“Platform Data” is all other data generated or collected by NPGA in connection with offering or operating the NPGA Service(s) and shall be the property of NPGA.
“Client Data” includes information provided to NPGA by Client or his/her/its Authorized End Users related to the Client’s and/or his/her/its Authorized End Users use of the NPGA Service(s) not otherwise defined by Platform Data NPGA Service(s). All Client Data that is provided by Client to NPGA shall be, as between NPGA and Client, the property of Client, subject to the license rights in the Client Data as set forth herein.
Client hereby grants to NPGA a worldwide, royalty-free license to use any Client Data in connection with performance of the NPGA Services. In addition, Client further acknowledges and agrees that NPGA shall have a worldwide, royalty-free, and non-exclusive license to use and retain Client Data (received during the term of the Agreement) for any NPGA internal or business purpose that is lawful.
Any such data as collected, provided, or made available by Client in connection with this Service Terms & Conditions shall be in compliance with all applicable laws and regulations. Client will be responsible for and will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any persons or entities who are the subject of any such data provided or made available by Client. Upon request, Client will provide NPGA with reasonable proof thereof, all necessary consents, rights, permissions, and clearances required for NPGA to use such data for the purposes contemplated by this Service Terms & Conditions. Moreover, and unless otherwise agreed in an Order Form(s), Client will not provide NPGA with any data segments associated with an individual that resides outside the United States or is under the age of seventeen (17). As between NPGA and Client, Client acknowledges and agrees that Client is solely responsible for ensuring the accuracy, timeliness, or completeness of any data Client or his/her/its Authorized End Users provides or makes available to NPGA. NPGA will specifically not use nor permit use of Client Data for purposes of credit reporting or debt collection.
1.3 Cooperation. Client acknowledges and agrees that successful implementation of this Service Terms & Conditions may require Client’s reasonable and timely cooperation, including, without limitation, furnishing requested information, assisting NPGA with support, maintenance, implementation, or the registration and establishment of accounts with his/her/its Authorized End Users. Client will be responsible for facilitating the Behind-The-Wheel (BTW) portion of the NPGA Services in coordination with NPGA (and if Client is an entity, supplying BTW instructors, who must enter into a trainer agreement with NPGA, in the form and manner provided by NPGA, and such instructors shall be deemed Authorized End Users). Client will also comply with, and cause its Authorized End Users to comply with, all applicable laws, rules, and regulations in its performance under this Service Terms & Conditions. Client will also treat any access credential information, e.g., login information, as the Confidential Information of NPGA.
1.4 Privacy Policy. Data collected in connection with the NPGA services shall be pursuant to the then-current NPGA Privacy Policy.
2 PAYMENT. All payments are due and payable from Client upon submission of the Order Form and acceptance of this Agreement and are non-refundable, non-cancelable, and irrevocable. All payments shall be made without recoupment or set-off. Client will pay all taxes and duties including, but not limited to, sales, use, rental, receipt, personal property, and other taxes (but excluding taxes based upon NPGA’s income), which may be levied or assessed in connection with this Service Terms & Conditions. If payment is charged back or payment is declined, NPGA reserves the right to terminate immediately the Agreement.
3 CONFIDENTIALITY. Each Party will have access to confidential or nonpublic information (“Confidential Information”) of the other Party or third parties. Confidential Information disclosed is proprietary and will remain the sole property of the disclosing Party or such third parties. The NPGA Service(s) (and any related software, programming code, process, or method) and Documentation are Confidential Information of NPGA and/or its licensors. Confidential Information will not include information that: (i) is or becomes publicly available or enters the public domain through no fault of the recipient; (ii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations; (iii) is already in the recipient’s possession free of any confidentiality obligations at the time of disclosure; (iv) is independently developed by the recipient; or (v) is approved, in writing, for release or disclosure without restriction. Each Party agrees to: (i) use Confidential Information only for the purposes of this Service Terms & Conditions; (ii) hold Confidential Information in confidence and protect it from dissemination to, and use by, any third party (other than NPGA’s licensors); (iii) not to reverse engineer or create any derivative work from Confidential Information; (iv) restrict access to Confidential Information to its personnel, affiliates, agents, and contractors who need access to such Confidential Information and who have agreed in writing to treat such Confidential Information in accordance with this Service Terms & Conditions; and (v) return or destroy all Confidential Information of the other Party upon termination or expiration of this Service Terms & Conditions. If the recipient is required by law or valid legal order to disclose Confidential Information, the recipient will, unless prohibited by law, give reasonable notice of such demand to allow the disclosing Party to seek a protective order or other remedy.
4 WARRANTIES. NPGA and Client each represent and warrant that (a) each such Party has the power and authority to enter into this Service Terms & Conditions and perform all of its respective obligations hereunder; (b) each such Party and its signatory (or person agreeing) to this Service Terms & Conditions has the authority and has been duly authorized to execute (or agree to) this Service Terms & Conditions; and (c) each such Party’s execution, delivery, and performance of this Agreement does not and will not violate any agreements between such Party and any other party. EXCEPT FOR THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NPGA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF INTERFERENCE WITH ENJOYMENT OF INFORMATION, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. MOREOVER, CLIENT ACKNOWLEDGES AND AGREES THAT NPGA DOES NOT WARRANT THAT THE NPGA SERVICE(S) WILL OPERATE ERROR-FREE OR UNINTERRUPTED. NPGA ALSO DOES NOT WARRANT OR GUARANTEE ANY RESULTS. IF THIS DISCLAIMER(S) OF WARRANTY IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION IN ANY MANNER, THEN ALL EXPRESS AND/OR IMPLIED WARRANTIES MANDATED BY SUCH COURT SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS.
5 INDEMNITY.
5.1 Client Indemnification. Client agrees to indemnify, defend, and hold harmless NPGA and its officers, directors, agents, employees, successors, and assigns from and against any and all damages, losses, liabilities, subpoenas, claims, actions, and investigations (including any by state, local, federal, or national government official or agency) and the associated penalties, fines, expenses, payments, or costs, including reasonable attorneys’ fees, due to or arising out of (a) Client’s breach of this Agreement or the Service Terms & Conditions; (b) the content or subject matter of any Client Data provided or made available by Client (including, but not limited to, allegations that use of any Client Data by NPGA violates privacy rights or principles); or (c) violation or noncompliance by Client with any applicable laws or regulations, including those governing or relating to commercial driving and commercial entry-level driving training.
5.2 NPGA Indemnification. NPGA will indemnify, defend, and hold harmless Client and (if Client is an entity, its officers, directors, agents, employees, successors, and assigns) from and against any and all damages, losses, liabilities, subpoenas, claims, actions, and investigations (including any by state, local, federal, or national government official or agency) and the associated penalties, fines, expenses, payments, or costs, including reasonable attorneys’ fees, due to or arising out of any third party action against Client to the extent proximately based upon (authorized) licensed use of the NPGA Service(s) infringing a third party intellectual property right in the United States. NPGA, however, will have no indemnity obligation nor other liability under this Service Terms & Conditions to the extent the claim is based upon: (i) NPGA Service(s) that was modified by anyone other than NPGA; (ii) use of other than the then-current release of the NPGA Service(s), if the infringement could have been avoided by use of the then-current release and such release was made available to Client; (iii) use of the NPGA Service(s) in conjunction with other software, hardware or Client Data, where such use gave rise to the infringement claim; (iv) use of NPGA Service(s) in a manner inconsistent with its Documentation; or (v) use of NPGA Service(s) other than as expressly authorized in this Service Terms & Conditions. If NPGA determines that the NPGA Service(s) is likely to be the subject of a claim of infringement, NPGA may, in its sole discretion: (i) replace or modify the NPGA Service(s); (ii) procure the right for Client to continue using the NPGA Service(s); or (iii) terminate the license to the NPGA Service(s) and refund to Client a pro-rated portion of the applicable unused subscription fees. THIS SECTION STATES NPGA’S EXCLUSIVE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY REGARDING ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE NPGA SERVICE(S) OR ANY MATERIALS OR SERVICES PROVIDED UNDER THIS Service Terms & Conditions.
5.3 Indemnification Procedures. The indemnified Party will promptly notify the indemnifying Party of all claims (subject to the indemnification responsibilities herein) of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying Party’s obligations except to the extent such Party is prejudiced by such failure or delay), and will: (a) provide reasonable cooperation to the indemnifying Party at the indemnifying Party’s expense in connection with the defense or settlement of all claims; and (b) be entitled to participate at its own expense in the defense of all claims. The indemnified Party agrees that the indemnifying Party will have sole and exclusive control over the defense and settlement of all claims; provided, however, the indemnifying Party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on the indemnified Party without its prior written consent. The foregoing consent requirement, however, shall not be required for any settlement that involves only the payment of monetary damages by the indemnifying Party and in which such event does not otherwise prejudice or affect the indemnified Party.
6 LIMITATION OF LIABILITY.
6.1 Limitation of Liability. EXCEPT AS EXPRESSLY SPECIFIED IN THIS Service Terms & Conditions, NPGA IS NOT LIABLE FOR ANY LOSSES OR DAMAGES THAT MAY ARISE IN CONNECTION WITH CLIENT’S USE OF THE NPGA SERVICE(S). NPGA IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR OTHER EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS) FOR ANY CLAIM THAT ARISES FROM OR RELATES TO THIS Service Terms & ConditionS (INCLUDING THE NPGA SERVICE(S)), REGARDLESS OF THE FORM ALLEGED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NPGA’S LIABILITY FOR DIRECT MONETARY DAMAGES TO CLIENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE FEES PAID UNDER THIS Service Terms & Conditions FOR THE NPGA SERVICE(S) IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY.
6.2 Force Majeure. Except for obligations to make payment hereunder, neither Party hereto shall be responsible for any failure to perform its obligations under this Service Terms & Conditions if such failure is caused by events or conditions beyond that Party’s reasonable control including, without limitation, acts of God, pandemic(s), acts by any governmental authority, or failure(s) of software or equipment of third parties.
7 TERMINATION. A breach of any term of this Service Terms & Conditions will be considered a default. NPGA may terminate this Service Terms & Conditions by written notice, if Client (i) fails to cure any default of this Service Terms & Conditions no later than thirty (30) days after receipt of written notice from NPGA of such default or (ii) is subject to a bankruptcy proceeding that is not dismissed within sixty (60) days. Upon any termination of this Service Terms & Conditions, all amounts owed to NPGA under this Service Terms & Conditions are immediately due and payable, all license rights immediately cease to exist, and Client will discontinue all use of the NPGA Service(s). Client will delete the NPGA Service(s) and all copies and related materials no later than ten (10) days after the date of termination (and, upon request, certify such destruction to NPGA). The provisions of this section and sections ‘Ownership’, ‘Confidentiality’, ‘Indemnity’, ‘Limitation of Liability’, and ‘Governing Law’ will remain in full force and effect, notwithstanding any termination or expiration of this Service Terms & Conditions or any license granted under this Service Terms & Conditions.
8 GENERAL.
8.1 Assignment. Client may not assign, transfer, delegate, or sublicense any of Client’s rights or obligations under this Service Terms & Conditions without NPGA’s prior written consent. Any assignment, transfer, delegation, or grant of sublicense without NPGA’s consent is null and void.
8.2 Export Control. Client may not download, provide access to, and otherwise export or re-export the NPGA Service(s), in whole or in part, except as explicitly allowed in this Service Terms & Conditions and in compliance with all applicable laws, regulations and restrictions (whether international, federal, state, local, or provincial). NPGA reserves the right to not perform any obligation under the Service Terms & Conditions if prohibited by such export control laws, regulations or restrictions.
8.3 Anti-Corruption. The Parties will comply with all laws, regulations, and requirements (whether international, federal, state, local, or provincial) prohibiting bribery, money laundering, and anti-corruption, including the U.S. Foreign Corrupt Practices Act.
8.4 Dispute Resolution. In the event of a dispute, each Party will appoint a senior management representative to negotiate in good faith to resolve the dispute before commencing formal proceedings. Formal proceedings may not commence until thirty (30) days have passed since the initial request to negotiate the dispute; provided, however, that a Party may file for formal proceedings at any time to avoid the expiration of any limitations period, preserve a superior position with respect to other creditors, or apply for interim, injunctive, or equitable relief.
8.5 Independent Contractors. The Parties are independent contractors and have no power to bind or incur obligations on the other Party’s behalf.
8.6 Force Majeure. Neither Party is liable for failing to perform an obligation under this Service Terms & Conditions if such failure is due to any act or condition beyond that Party’s reasonable control.
8.7 Governing Law. This Service Terms & Conditions is governed by the laws of the District of Columbia without giving effect to its conflicts-of-law(s) provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Uniform Commercial Code (UCC). The Parties consent to exclusive personal jurisdiction in federal and state courts located in the District of Columbia. EACH PARTY WAIVES ALL RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT THIS Service Terms & Conditions.
8.8 Marketing. Client agrees that, while this Service Terms & Conditions is in effect, NPGA is authorized to identify Client as a customer in public relations and marketing materials, including identification on NPGA’s website, and use Client’s corporate name and logo.
8.9 Notices. All notices and demands relating to this Service Terms & Conditions must be in writing and sent to the other Party at the address set out in the applicable Order Form to the attention of such Party’s legal department unless a different address or recipient is designated by a Party. All notices and demands will be effective upon delivery when: (i) delivered in person with signed receipt; (ii) sent by registered mail (return receipt requested); or (iii) sent by nationally recognized trackable carrier service.
8.10 Entire Agreement; Waiver; Priority; Severability. This Service Terms & Conditions (together with any associated amendments thereto and all integrated exhibits and Order Form(s)) constitutes the entire agreement between the Parties and supersedes all prior written and oral agreements and communications related to the subject matter of this Service Terms & Conditions. Any modifications to this Service Terms & Conditions must be in writing and signed by the duly authorized representatives of the Parties. Any waiver under this Service Terms & Conditions must be in writing and signed by the Party granting the waiver. A waiver granted under this Service Terms & Conditions will not be deemed to be a waiver of any subsequent breach of the same or any other provision of this Service Terms & Conditions. No failure or delay by either Party in exercising any right under this Service Terms & Conditions will constitute a waiver of that right. In the event of any conflict between any provision of this Service Terms & Conditions and any exhibits incorporated and made part of this Service Terms & Conditions, such conflict will be resolved by giving precedence to the Order Form(s). Any contrary or additional terms and conditions included in any purchase order or similar document (printed or online) related to this Service Terms & Conditions will be invalid and non-binding, even if received, accepted, approved, or signed by a Party. If any provision of this Service Terms & Conditions is held invalid or unenforceable, the provision will be limited to the minimum effect necessary and the remaining provisions of this Service Terms & Conditions will remain binding and enforceable. This Service Terms & Conditions may be executed in one or more counterparts, with the same effect as if the Parties had signed the same document. The Parties agree to the use of digital signatures.