Welcome to nGAP, an interactive forum for government procurement, owned and operated by nGAP Incorporated (hereby, the “Company”). This Web Site is an independent forum for information exchange among government buyers and potential sellers.  The Company’s role is that of an intermediary.  In this role, the Company provides access to information needed to provide best value options to government buyers.  While Company personnel may, upon request, become involved in finding sellers for buyers and buyers for sellers, we do not endorse or approve of any particular buyer, seller, or any particular items or services procured by buyers on this Web Site.

We may amend this Agreement at any time by posting the amended terms on our site. Except as stated below, all amended terms shall automatically be effective 30 days after they are initially posted on our site.  Where amendments are simply informational, they will be effective immediately upon posting to the site. This Agreement is effective on January 25, 2008 for all registrants.

GENERAL PROVISIONS PERTAINING TO USE OF THE ngap WEB SITE:

Definitions.
Buyer (Customer) means the person responsible for requesting services and/or products for a project or organization; e.g. End Customer, Program Manager, etc.

Contract means the agreement between the Contract Prime and the government Contracting Agency that allows the government to pay for the Contract Prime to deliver goods and/or services.  Contract can also refer to other procurement vehicles such as GSA schedules.

Contract Prime (or “Prime”) means the owner of the contract who will be billing the government. The government will be issuing payment to the Contract Prime.  The Contract Prime and Provider will be the same entity when the Contract Prime actually provides the goods and/or services to Buyer.

Contracting Agency means the government agency responsible for obligating money and placing orders on the contract.

Provider means the contractor or sub-contractor that provides the products and/or services.

User Authorization.
By accepting these Terms of Use, Prime agrees to use this Web Site as described in the “nGAP Process-Contract Prime Perspective” attached to this agreement.  By agreeing to these Terms of Use, Prime recognizes the Company has provided services of value and will refrain from any action that circumvents the “nGAP Process-Contract Prime Perspective ” or Prime’s obligation to pay Company the agreed fee for such services as detailed in the section on Fees.
Contract Prime personnel, by using this site, certify they have the authority to make commitments on behalf of their company.

Eligibility.
This site acts as an electronic forum to enable government agencies and departments access to awarded contracts for the purpose of identifying the best source for filling a purchase requirement. The role of the Company is that of an intermediary that brings together buyers and sellers. The actual buying cycle activities are conducted between you as a Prime and the government buying agency.

Services are only available to Subscribers.  It is Subscriber’s responsibility to make an accurate registration and to keep this information current.  Further, Subscriber’s nGAP account (including any feedback) and User ID may not be transferred or sold.  The Company will review the registration form in good faith, and in a timely manner will notify the registrant regarding the Company’s acceptance or rejection of the registration form. The Company, at its sole discretion, may refuse its services to any person or entity at any time.

Fees and Services.
Fees will be charged to Prime Contractors for services as follows:

    - Registration fee: A one-time fee of $150 to be charged to credit card based on information provided by Prime’s representative.
    - Access fee: $29.95 per month, to be charged to credit card (first and last months) at registration. A total charge of $209.90 to be made at registration.  No refunds will be made for any partial month of membership.  However, Primes may cancel these services and terminate participation at any time and no further fees will accrue beyond the current month charge.  Only one fee will be assessed per Prime, regardless as to the number of contracts Prime may place on nGAP.

nGAP is designed to report all awards as part of the accounting and reporting functionality provided as part of the solution.  Prime shall take no action that inhibits or prevents reporting of their awards on nGAP.

The Company, at their sole discretion, may offer additional services for a fee at any time.  Such services, and their applicable fees, shall be at subscriber’s election.

Limited License.
Subscriber, once registered and approved, is granted a revocable, nontransferable, nonexclusive license to use the services of this Web Site.  These services are for your own internal use and without expanding any of your rights hereunder you agree you will not republish, reproduce, or distribute any of the information or make use of the information in a manner that will circumvent the Web Site.  Nor will you allow a third party access to the information or services, except as required by applicable law. 

nGAP operates as an Internet based procurement solution.  It is your responsibility to provide all communications equipment and services required to access and operate this solution.  Failure to comply with theses terms of use may result in suspension or revocation of some or all of your site license privileges. 

Intellectual Property.
The Web Site, its content (except for third-party content) and all intellectual property rights included therein (including but not limited to copyrights, trademarks and service marks) are privately owned or licensed and all right, title and interest therein shall remain the property of the owners, licensors, their licensees, successors and assigns thereof. Accordingly, you agree that you will not remove any copyright, trademark or other intellectual property or any proprietary notice or legend contained on the Web Site or its content.

No Warranty.
WE AND OUR EMPLOYEES PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE AND OUR EMPLOYEES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.

Liability Limit.
nGAP provides an interactive forum for buyers to select providers for fulfillment of government purchase requests.  The Company has no control over the quality, quantity, or legality of all items presented for sale on this web site.  Although the Company performs limited due diligence in working with providers to list their items on this site we do not make any guarantees about  the accuracy of information presented by Prime as well as the ability of the Prime to sell the items represented.  Because the Company cannot control the actions of users on this site, in the event Prime may have a dispute with one or more Buyer, you agree to release the Company from any and all claims, demands and damages (actual, consequential and punitive) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with such disputes.  You also agree to waive the provisions of any state law limiting or prohibiting a general release.

nGAP Process- Contract Prime Perspective
The following describes how this gateway works from a Contract Prime’s perspective. 

1. The Contract Prime section of the gateway contains information on the benefits of nGAP (Overview) and a brief summary of how nGAP works.  It also includes a sign up section where you can register to join nGAP after you have reviewed the above information. 
2. As part of your registration process, you will:
1. Complete a standard registration form
2. Read and electronically approve terms and conditions
3. Attach the contract/vehicle you want included in nGAP
4. Submit a set of qualitative words or certifications that distinguish you from other vendors
3. After registering and receiving a log-in ID and password, you are ready to participate in opportunities from Buyers who use nGAP.
4. Once a Buyer logs in, they can search nGAP contracts/vehicles and vendor certifications/key word entries.
5. Buyer can search by multiple means.  A search can specify a standard identifier code, such as a NAICS or PSC.
6. If more qualitative requirements exist, Buyers can search on key words. 
7. As part of this selection process, Buyers can specify contract type and/or set aside (8a, Disadvantaged Small Business, etc) they want to see included in the results.
8. The result of the search is a list of vendors who meet the criteria selected by the Buyer.
9. From this list Buyer can choose to contact one or more Primes.  This is often done by email through nGAP.  Buyer may attach a Statement of Work (SOW), Purchase Request, or any other material that helps describe the Buyer’s specific need.
10. After reviewing vendor responses Buyer selects the best value and continues their internal approval process.
11. Once a Task Order is created within Buyer’s legacy system, the Task Order is awarded to Prime and Task Order information is then entered into nGAP by Buyer.   

Delivery
All Orders placed through nGAP shall be shipped and delivered in accordance with the specifications set forth by the Buyer in the attachments provided.  Prime’s failure to ship and deliver in compliance with the specifications may subject such party to negative ratings from Buyers and may lead to suspension or revocation of some or all of such party’s nGAP license privileges.

Prime shall promptly advise Buyer of any delay or anticipated delay in delivery or performance of an order. Delivery shall not be deemed to be complete until goods have been actually received and accepted by Buyer, notwithstanding delivery to any carrier. Prime shall bear the risk of loss of, or damage to, the goods covered by this order until delivered to the location designated on the face of this order and accepted by Buyer.

Taxes
The provision for sales and any other applicable taxes shall be the responsibility of Buyer and Prime acting in concert to complete an order.  Prime acknowledges that the Company is only an intermediary in the procurement process and is not liable for any taxes resulting from the services provided by the Company, except to the extent that taxes are due on fees accruing to the Company based on services provided to users registered on this site.

Returns and Refunds
nGAP is an independent venue.  All returns, replacements, refunds, technical services and support shall be in accordance with Prime’s standard commercial terms and conditions or as specifically stated in Buyer Statement of Work or other document designed to include such provisions.

Attachments
Buyers may attach documents such as a Statement of Work (SOW) or a Purchase Request to place an order on nGAP.  When doing so, Buyer is required to scan all attachments with anti-virus software prior to posting on nGAP.  Prime is required to perform similar checks when providing input, including price lists and contract information.

Indemnification
You shall indemnify, defend, and hold harmless the Company and its employees, agents, successors, officers, directors, stockholders and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including reasonable attorney and accounting fees) arising out of or relating to any claim or action based upon (a) Your breach of these Terms of Use; or (b) Your sale of any commercial items.

Relationship of the Parties
The Company is an independent contractor that provides an interactive venue for Buyers and Primes.  Nothing contained in any Order or other document or attachment shall be deemed or construed to create a partnership, joint venture, agency or other relationship other than that of independent intermediary. All parties will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes.

Disputes
These Terms of Use shall be governed in all respects in accordance with the laws of the State of California.   Any controversy or claim between the Company and Prime, arising out of or relating to these Terms of Use, shall be settled as follows: A) First, by participation of the parties in good faith negotiation, which will include representatives from each party authorized by such party to settle the controversy or claim.. B) If the parties are unable to negotiate a mutually agreeable, binding resolution, the parties agree to try in good faith to settle the dispute by mediation before resorting to any other dispute resolution procedure. The parties agree to use a mediator selected by the Company and to conduct mediation at Company offices beginning not later than thirty days after the date of the last negotiation meeting pursuant to subsection A), above. Mediation will continue for a period of not longer than ninety days from the date on which the first mediation conference takes place. C) If the parties are unable to mediate a mutually agreeable, binding resolution, the parties agree to settle the dispute through binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party.

Notices
Except as explicitly stated otherwise, any notices shall be given by postal mail to:

nGAP Incorporated
Attn: Legal Department
5256 S. Mission Road
Suite 302
Bonsall, CA  92003