Mail vendor general terms
EARTH CLASS MAIL, INC.
MAIL FORWARDING GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (“General Terms”) are part of the Master Services Agreement (“MSA”) executed and entered into by and between Earth Class Mail, Inc. (together with its Affiliates, “ECM”) and Service Provider. Capitalized terms used and not defined in these General Terms shall have the meaning ascribed to them in the MSA and SOW(s) (as applicable) entered into by and between Earth Class Mail, Inc. and Service Provider (including any exhibit(s), schedules, or other attachments thereto). Each of ECM and Service Provider may be referred to herein as a “Party” and, collectively, as the “Parties.”
Certain Definitions
“Action” means any claim, action, suit, inquiry, proceeding, audit or investigation by or before any government authority, or any other arbitration, mediation or similar proceeding.
“Affiliate” means any Person, domestic or foreign, including but not limited to parent and/or subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with a Party.
“Agreement” shall have the meaning ascribed to such term in the MSA.
“Applicable Laws” means all applicable laws, rules, regulations, codes, orders, judgments, writs, injunctions, decrees, standards, policies, guidelines issued by (a) federal, state or local government agencies or other government authorities, including the USPS, in all Territories, including, without limitation, Publication 52 (Hazardous, Restricted, and Perishable Mail) and other mailing standards and restrictions such as
https://www.usps.com/ship/shipping-restrictions.htm, or (b) self-regulatory organizations with jurisdiction over ECM or Service Provider and its business(es) and in any jurisdiction in which ECM or Service Provider does or is deemed to be doing business.
“Business Day” or “business day” means each calendar weekday (Monday, Tuesday, Wednesday, Thursday, or Friday), except legal public holidays recognized and announced by the United States Government pursuant to 5 U.S.C. § 6103(a).
“Client Information” means any information or documentation that Service Provider receives or otherwise obtains from, on behalf of, concerning, or in connection with an ECM Client, which relates to or concerns such ECM Client, his/her account with ECM and/or Service Provider (if and as applicable), and/or the provision or use of the Services under the Agreement, including without limitation ECM Client’s contact information, such as name, title, address, email, IP address, telephone and fax numbers, and the like.
"Confidential Information" means any information that is not generally known to the public and that is or was used, developed, or obtained by either Party in connection with its business or the Agreement; provided, however, that “Confidential Information” shall not include information that: (a) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party in violation of the Agreement; (b) is already in the possession of the receiving party at the time of disclosure by the disclosing party and from a third party not known to be bound by confidentiality obligations to the disclosing party, as shown by the receiving party’s files and records immediately prior to the time of disclosure; (c) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (d) is independently developed or acquired by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession;. For purposes of the Agreement, Confidential Information shall include, without limitation, the terms of the Agreement, nonpublic information related to ECM Clients, vendors, employees, ECM PII, and Client Information.
“ECM Affiliate” means each of LegalZoom.com, Inc., Legalinc Corporate Services Inc., and any other Affiliate of ECM.
“ECM Client” means each customer of ECM and/or its Affiliates requesting services on the terms and conditions specified in the Agreement.
“ECM Content” means ECM’s graphic images, description of ECM and its products or services, and any other content, language, or images provided and approved in final form by ECM to Service Provider.
“ECM Indemnified Parties” shall have the meaning ascribed to such term in Section 10.1 hereof.
“ECM PII” means any identifying or personal information that is or can be reasonably linked to a specific ECM Client, and/or ECM or its Affiliate officer, director, employee, or agent, or each of their respective computers or devices, including email address, mailing address, telephone number, IP address, or financial, medical, or health information.
“Force Majeure Event” shall have the meaning ascribed to such term in Section 14.1 hereof.
“Government Fees” means all fees, costs, and expenses concerning ECM Clients charged or assessed by an applicable government authority, including the Secretary of State.
“Office Relocation Expenses” shall have the meaning ascribed to such term in the applicable SOW.
“Overnight Courier” means a Private Carrier that provides shipping services for Mail in a manner that guarantees the Mail will be delivered and arrive at a specified destination the next calendar day by a certain time.
“Person” means a natural person, corporation, partnership, limited liability company, limited liability partnership, syndicate, trust, association, organization or other entity, including any government authority, and including any successor, by merger or otherwise, of any of the foregoing.
“Private Carrier” means a third-party,
other than the USPS, that serves as a shipping carrier or courier and provides shipping services for Mail. By way of example, Private Carriers include, but are not limited to, DHL, FedEx, and UPS.
“MSA Term” shall commence on the MSA Effective Date and end twelve (12) months after the expiration or earlier termination of all SOWs entered into by the Parties. For clarity, ECM shall have the right but not the obligation to enter into additional SOWs with Service Provider during the 12-month period following the expiration or termination of all prior SOWs, in each case pursuant to the terms of the Agreement.
“Notice Period” shall have the meaning ascribed to such term in Section 5.5 hereof.
“Record Retention Period” shall have the meaning ascribed to such term in Section 14.2.1 hereof.
“Security Breach” means (a) any act or omission that compromises or undermines (i) the security, confidentiality, or integrity of ECM PII or Client Information, or (ii) the physical, technical, administrative, or organizational safeguards put in place by or on behalf of Service Provider or ECM; and/or (b) misuse, loss, theft, destruction, alteration, compromise, or unauthorized disclosure/access to or collection of (including retention, storage, or transfer) ECM PII or Client Information.
“Service Provider Agent” shall have the meaning ascribed to such term in Section 13.1 hereof.
“Service Provider Records” shall have the meaning ascribed to such term in Section 14.2.1 hereof.
“Services” shall have the meaning or meanings ascribed to such term in each applicable SOW, which has not expired or been terminated, taken together.
“SOW” or “Statement of Work” shall have the meaning ascribed to such term in the MSA.
“Territory” means the state or states within the United States specified in any SOW.
“USPS” means the United States Postal Service.
Data Protection
During the Term, Service Provider covenants and agrees not to use, receive, process, access, sell, rent, transfer, distribute, or otherwise disclose or make available ECM PII and Client Information in violation of Applicable Laws, or for its own or any other purposes that are not expressly specified in the Agreement.
Service Provider covenants and agrees that it shall implement and maintain administrative, physical, and technical safeguards to protect ECM PII and Packages from a Security Breach or any other unauthorized access, acquisition, or disclosure, destruction, alteration, accidents, loss, theft, misuse, or damage. At a minimum, these safeguards shall include: (a) limiting access to ECM PII and Packages to Service Provider’s employees who are providing Services hereunder; (b) securing its Offices, paper files, servers, computing equipment, phone line, and fax line (as applicable).
Service Provider shall (a) notify ECM of a Security Breach as soon as practicable, but no later than twenty-four (24) hours after Service Provider becomes aware of it by emailing ECM at [email protected], with a copy by email to Service Provider’s primary business contact within ECM. Service Provider agrees to fully cooperate with ECM in ECM’s handling of the matter as may be reasonably required by ECM or its authorized representatives.
Service Provider Business
All questions, comments, or concerns regarding ECM, ECM Clients, and ECM Affiliates received by Service Provider shall be directed to ECM.
Service Provider shall not market, solicit, or contact ECM Clients or otherwise use Client Information in a manner inconsistent with the purposes of the Agreement.
Except as set forth in the Agreement, Service Provider bears full responsibility, risk, and liability for (a) all aspects of the conduct and operations of its business and (b) payment of all expenses related to or arising from its business activities and obligations under the Agreement.
Time is of the essence with respect to Service Provider’s obligations and responsibilities in the Agreement.
Fees and Payment
Mail Forwarding Service Fee. ECM will pay Service Provider the monthly Service Fee set forth in the applicable SOW within sixty (60) days of receipt by ECM of an accurate and undisputed invoice from Service Provider. Service Provider shall deliver an invoice to ECM no later than five (5) business days following the last day of each calendar month.
Term and Termination
Term. Тhe MSA Term is defined in Section 1 (Definitions) above, and the SOW Term is defined in each applicable SOW. Notwithstanding anything to the contrary in the Agreement, the terms and conditions of the MSA and these General Terms shall continue in full force and effect with respect to each SOW that has not expired or been terminated, until such time as all of the Services to be performed and the Parties’ obligations related thereto as set forth in any such SOW have been fully completed, delivered, or performed in accordance with the applicable terms and conditions contained therein and in the Agreement. Additionally, if all SOWs have expired or been terminated, either Party may terminate the Agreement by providing prior written notice of at least thirty (30) days to the other Party.
Termination by ECM or Service Provider for Material Breach. Either Party may terminate the Agreement, including any or all SOWs (in whole or in part), if the other Party has materially breached its obligations under the Agreement and such breach is not cured within thirty (30) days of receipt of written notice of such breach. Any material change by Service Provider to any of the Services shall constitute a material breach of the Agreement. The breaching Party shall pay for all Government Fees arising from or relating to such termination.
Termination by ECM for Convenience or Purported Assignment by Service Provider. ECM shall have the right to terminate the Agreement and/or any or all SOWs (in whole or in part) (a) for any or no reason (i) at all during the first six (6) months of the SOW Initial Term or of the then-applicable Renewal Term and (ii) upon three (3) months prior written notice to Service Provider, without further obligation or liability of any kind, except that ECM shall pay all Government Fees arising from or relating to such termination; or (b) immediately upon written notice to Service Provider if Service Provider assigns or attempts to assign the Agreement (or any portion thereof) or any of its rights and obligations under the Agreement (or any portion thereof) in breach of Section 14.4 (Assignment) hereof, and Service Provider shall pay for all Government Fees arising from or relating to such termination.
Termination by ECM or Service Provider for Cause. If Service Provider provides ECM with at least eight (8) months prior written notice (the “Notice Period”) that (a) it intends to wind up, close, and/or liquidate its business or a portion thereof that provides the Services and cease to provide such Services to all third parties; (b) its Office(s) lease will expire and will not be renewed by the landlord or Service Provider; or (c) it will lose other material rights to the Office property or its address through no fault of Service Provider (each of (a), (b) and (c), a “Cause”), then either Party may terminate the Agreement as of the last day of the Notice Period. Regardless of which Party terminates the Agreement based on this Section 5.4, Service Provider shall pay for all Government Fees arising from or relating to such termination. Notwithstanding anything to the contrary in the Agreement, Service Provider shall have the obligation to notify ECM of any Cause.
Termination for Insolvency. Either Party shall have the right to terminate the Agreement, including and any and all SOWs, immediately upon written notice to the other Party in the event the other Party is adjudicated bankrupt or becomes insolvent, makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or for reorganization under Applicable Laws relating to bankruptcy or creditors’ rights or if a petition is filed against it, or if a receiver or trustee is appointed for such Party. The non-terminating, i.e., insolvent, Party shall pay for all Government Fees arising from or relating to such termination.
Additional Effect of Termination. In addition to the foregoing, upon termination of the Agreement:
The provisions of Section 1(Definitions), this Section 5 (Term and Termination); Section 8(Confidential Information), Section 10 (Indemnity, Insurance, and Limitation of Liability), Section 12 (Limitation of Liability),and Section 14 (General) and any payment obligation that has accrued and is owed by one Party to another Party but has not been paid prior to the termination of the Agreement, shall survive the termination of the Agreement.
If the Agreement is terminated prior to the completion of a full calendar month, ECM's obligation to pay the Service Fee shall be pro-rated according to the days of the month in which termination occurs, and Service Provider shall deliver to ECM an invoice for such pro-rated amount.
On the effective date of termination of the Agreement, (a) each Party shall fully cooperate with the other Party in order to effectuate an orderly transition; (b) Service Provider shall remove the ECM Content from all material; and (c) each Party shall return or destroy the Confidential Information of the other Party.
Intellectual Property License
ECM hereby grants Service Provider a limited, non-exclusive, non-transferable, revocable license to use, reproduce, publicly display, and distribute the ECM Content on building signage and in marketing materials, all as pre-approved by ECM in writing. For the avoidance of doubt, ECM retains all rights, title, and interest in and to the ECM Content along with all intellectual property rights associated therewith, and all goodwill arising out of Service Provider's use of any of the ECM Content shall inure solely to the benefit of ECM.
Service Provider shall cooperate with ECM in connection with the protection of or maintenance of ECM’s rights in the ECM Content. ECM shall have the sole authority to determine what, if any, action shall be taken and the scope of such action or settlement thereof concerning the ECM Content.
No Exclusivity.
ECM may enter into, and the Agreement shall not preclude or limit, any discussions, negotiations, or agreements with any other entities, including entities that provide the same products or services offered or provided by Service Provider.
Unless precluded by Applicable Law, Service Provider may enter into similar arrangements or agreements with any other third parties, provided that Service Provider shall provide notice to ECM of any arrangement or agreement with a competitor of ECM not later than fourteen (14) calendar days of entering into such arrangement or agreement and, in any event, prior to the commencement of such services by any such third party.
Confidential Information.
In the course of negotiation or fulfillment of its obligations under the Agreement, each Party may have disclosed or may disclose to the other Party certain Confidential Information (as defined in Section 1 above).
If the receiving Party becomes legally compelled by a court of competent jurisdiction, administrative agency, or by Applicable Law to disclose any of the disclosing Party’s Confidential Information, then the receiving Party shall: (a) immediately notify the disclosing Party of such demand; (b) provide reasonable cooperation to the disclosing Party in connection with any effort by the disclosing Party to seek a protective order or other appropriate remedy to prevent, restrict and/or otherwise limit the disclosure of such Confidential Information; and (c) disclose only that portion of the Confidential Information that is legally required to be disclosed (subject to any protective order and/or other appropriate restrictions) and protect the Confidential Information from further disclosure to the extent permitted by Applicable Law.
Each Party (a) shall not disclose the other Party's Confidential Information to any third party without the other Party's prior written consent; (b) shall use Confidential Information only for the limited purpose of and as necessary to carry out its obligations under the Agreement; and (c) shall disclose the other Party's Confidential Information only to those of its employees, subcontractors, agents, attorneys, and consultants who are bound by confidentiality obligations at least as restrictive as those set forth herein, and whose duties require access to the Confidential Information in order for Service Provider to perform the Services.
The Parties acknowledge that the harm caused by the wrongful disclosure of Confidential Information will be difficult, if not impossible, to assess on a monetary basis alone and that legal damages may not be a sufficient remedy for the wrongful disclosure. Therefore, in addition to any other remedy that may be available at law and/or in equity, the disclosing Party shall be entitled to seek an injunction, restraining order, or other equitable relief to enforce compliance with the provisions hereof without requirement of posting bond or other security.
Except for that portion of Confidential Information that is considered a trade secret under Applicable Law, the provisions of this Section will survive termination of the Agreement for three (3) years after its expiration or other termination. For that portion of Confidential Information that is considered a trade secret under Applicable Law, the provisions of this Section 8 will survive expiration or other termination of the Agreement for the later of (a) the three (3) year period following expiration or other termination of the Agreement and (b) such time as the information is no longer considered a trade secret under Applicable Law.
Representations and Warranties.
Service Provider represents and warrants to ECM that as of the MSA Effective Date and for the duration of the MSA Term that:
It is duly organized and validly existing under the laws of the state in which it is organized and in each jurisdiction in each Territory in which it conducts business; (b) it has full corporate right, power, and authority to enter into the Agreement and to perform its obligations hereunder; (c) the Agreement represents a valid and binding obligation of Service Provider and is fully enforceable against Service Provider according to its terms; and (d) any and all activities and obligations it undertakes, and services (including the Services) it provides, under the Agreement shall be performed (i) in a manner that is consistent with industry best practice; (ii) in accordance with the terms, conditions and standards of performance set forth in the Agreement; and (iii) in compliance with all Applicable Laws.
Neither the execution, delivery, or performance of the Agreement or consummation of transactions contemplated hereby, nor compliance with any provision hereof, shall conflict with or result in a breach or default under any agreement binding upon Service Provider or its property, or violate any provision of any Applicable Law.
It shall, and shall ensure that its employees and contractors, perform its and their obligations respective under the Agreement, including providing the Services and operating the Offices in a highly professional, safe, and legal manner consistent with the highest industry standards and practices.
It holds and shall maintain all applicable permits and/or licenses to perform the Services in accordance with all Applicable Laws in each jurisdiction of each Territory.
Service Provider or its employees, officers or directors are not a party to any pending Action which could adversely affect Service Provider's obligations hereunder.
Indemnity, Insurance, and Limitation of Liability
Indemnification of ECM. Service Provider shall indemnify, defend, and hold harmless ECM and its Affiliates, and each of their respective officers, directors, employees and agents ("ECM Indemnified Parties") from and against any and all action, cause of action, suit, claim, demand, settlement, judgment, controversy, loss, obligation, damage, cost, lien, fine, penalty, charge, court cost, payment, loss, liability and expense (including reasonable attorneys' fees and expenses) (collectively, "Losses") which may be asserted against, imposed upon, or suffered by any of the ECM Indemnified Parties, or which may be claimed by any Person as a result of, arising out of or related to (a) the Services and Service Provider’s provision of same; (b) breach or alleged breach of Service Provider’s representations, warranties, and/or covenants under the Agreement (except to the extent caused by inaccurate information provided by ECM to Service Provider regarding an ECM Client); (c) violation of Applicable Laws by Service Provider or its agents; (d) the failure of Service Provider to perform its obligations under the Agreement, except to the extent, in each case, that any such Losses are caused by ECM’s material breach of the Agreement, gross negligence or willful misconduct; (e) Office Relocation Expenses, if any; and/or (f) Service Provider’s obligations under Section 13.1 (Background Checks) hereof. Service Provider hereby agrees to be solely liable for any and all contracts and relationships between Service Provider and any third parties.
Indemnification of Service Provider.
ECM shall indemnify, defend, and hold harmless Service Provider and its officers, directors, and employees (“Service Provider Indemnified Parties”) from and against any and all Losses which may be asserted against, imposed upon, or suffered by any of the Service Provider Indemnified Parties as a result of, arising out of or related to (a) inaccurate information provided by ECM to Service Provider regarding an ECM Client; (b) ECM’s breach of any of the representations, warranties, or covenants made by ECM in the Agreement; and/or (c) violation of Applicable Laws by ECM or its agents, except to the extent, in each case, that any such Losses are caused by Service Provider’s material breach of the Agreement, gross negligence or willful misconduct.
Service Provider Insurance
Service Provider shall maintain one or more insurance policies, which comply with the requirements set forth in the Agreement. All insurance policies shall contain a provision that coverage will not be materially changed, canceled, allowed to expire or failed to be renewed, and no such change, cancellation, expiration or failure shall become effective, until at least thirty (30) days after written notice of any such proposed change, cancellation or expiration has been given to, and received by, ECM. All insurance policies shall have reasonable and customary deductibles.
During the MSA Term and for a period of one (1) year thereafter, Service Provider shall maintain, at its own cost and expense: (a) workers compensation insurance with limits meeting applicable statutory requirements or if no statutory requirement exists, a deductible no greater than $5,000; and (b) policies of insurance in amounts (i) reasonably expected in its industry, (ii) necessary to meet its obligations hereunder, and (iii) that will adequately protect Service Provider, its Affiliates, and additional insureds from Claims that may arise out of or result from the acts or omissions of Service Provider, its subcontractors or other agents (if any), or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable, with, at minimum, commercial general liability insurance (all of the foregoing, as further described below, the “Minimum Insurance Coverage Requirements”).
In furtherance, and not in limitation of, Section 11.2 above, the Minimum Insurance Coverage Requirements shall be:
Employer’s Liability Insurance: - $1,000,000 each accident or more, if required by Statute Business Auto Liability: - $300,000.00 Commercial General Liability: - $1,000,000.00 (per occurrence) -$2,000,000.00 (aggregate) Errors and Omissions and Professional Liability Insurance (if applicable, with a 10-year tail period): - $2,000,000.00 (per occurrence) - $3,000,000.00 (aggregate) Valuable Papers Insurance (if applicable): - Amount of Fees
Additional Insureds. Upon ECM’s written request, all policies required hereunder (except Workers’ Compensation and Errors and Omissions and Professional Liability Insurance) shall name “Earth Class Mail, Inc., LegalZoom.com and each of their respective affiliates” (collectively “Additional Insureds”) as additional insureds. A waiver of subrogation in favor of the Additional Insureds is required on all policies.
Certificates of Insurance. The following shall be included on Service Provider’s certificate of insurance: “Earth Class Mail, Inc., a Delaware corporation, and LegalZoom.com, Inc., a Delaware corporation, and each of their affiliates and their respective officers, directors, agents, servants, employees, divisions, subsidiaries, shareholders, partners, and members are included as Additional Insureds. The insurance provided by the “Named Insured” is primary and non-contributory. With respect to Workers’ Compensation, a waiver of subrogation is in favor of the Certificate Holder.” Within seven (7) calendar days of ECM’s request, Service Provider shall deliver to ECM certificates of insurance evidencing the requirements in this Section 11.
Limitation of Liability.
IN NO EVENT SHALL ECM, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR RESPECTIVE CLIENTS, SUPPLIERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AND/OR AGENTS (“ECM RELATED PARTIES”) BE LIABLE TO SERVICE PROVIDER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RELATED TO LOST PROFITS, LOSS OF USE, LOSS OF DATA, OR FAILURE TO REALIZE SAVINGS OR BENEFITS) ARISING UNDER, RELATING TO OR IN CONNECTION WITH THE AGREEMENT OR WITH THE PROVISION OF THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES.
THE TOTAL AGGREGATE LIABILITY OF ECM-RELATED PARTIES ARISING UNDER, RELATING TO OR IN CONNECTION WITH THE AGREEMENT OR THE PROVISION OF THE SERVICES SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED AMOUNTS ACTUALLY PAID BY ECM TO SERVICE PROVIDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CIRCUMSTANCES GIVING RISE TO THE CLAIM FOR DAMAGES.
ECM EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE SERVICE PROVIDER WITH RESPECT TO ANY PRODUCT OR SERVICE OFFERED OR SOLD BY SERVICE PROVIDER, INCLUDING, BUT NOT LIMITED TO, THE SERVICES; FURTHER, NOTHING HEREIN SHALL BE DEEMED TO BE AN APPROVAL, ENDORSEMENT OR RECOMMENDATION OF SERVICE PROVIDER OR ITS SERVICES BY ECM.
Safety and Security.
Background Check. Service Provider shall perform a five-panel drug screen, criminal background check, and /or general background investigation for each employee, contractor or sub-contractor, or agent of Service Provider who will provide any portion of the Services (each, a “
Service Provider Agent”). Service Provider will be responsible for all related costs associated therewith. Service Provider shall not permit a Service Provider Agent to perform any component of the Services if a background check is completed and the results of the background check reveal any crime, behavior, or activity that would reasonably cause Service Provider or a client or customer of Service Provider concern; provided however, that Service Provider shall make all such decisions in accordance with all Applicable Laws.
General.
Force Majeure.
In the event that either Party fails, in whole or in part, to fulfill its obligations under the Agreement, including payment of fees, as a consequence of a significant failure of a power grid or the Internet, cyberattack, denial of service attacks, acts of god, natural disaster, fire, flood, embargoes, war, acts of war, riots, insurrection, disease, epidemics, pandemic or other health events, strikes, other organized labor action or disruptions, terrorism or threats of terrorism (including cyber terrorism), civil disorder, curtailment of transportation preventing or delaying performance, or other acts or events for which precautions are not generally taken in the industry (each a "Force Majeure Event"), the failure to perform shall not be considered a breach of the Agreement during the period of the Force Majeure Event. In the case of any Force Majeure Event, the disabled Party shall (a) promptly and in writing advise the other Party if it is unable to perform due to a Force Majeure Event, the expected duration of the inability to perform, and any developments that appear likely to affect its ability to perform any of its obligations, in whole or in part, and (b) use its best efforts to meet its obligations under the Agreement. If any Force Majeure Event continues in excess of seven (7) calendar days, the non-disabled Party may terminate the Agreement upon notice to the disabled Party.
Books and Records
Service Provider shall maintain and shall require all of its agents, including any contractors or sub-contractors, that Service Provider uses or engages in connection with Service Provider’s obligations under the Agreement, to maintain, true and complete books and records and other documents in connection with Service Provider’s obligations under the Agreement, including Service Provider’s performance of the Services, and all transactions related thereto (“Service Provider Records”). In furtherance, and not in limitation, of the foregoing, all Service Provider Records shall contain sufficient information to permit ECM to confirm (a) the accuracy of any invoices or reports delivered to ECM, and (b) compliance with this Agreement. Service Provider shall retain all such Service Provider Records during the MSA Term and for a least seven (7) years (or such longer period of time as may be required by Applicable Law) after the end of the calendar year in which the Services are fully performed (“Record Retention Period”).
Service Provider shall provide ECM (or a third-party retained by ECM), upon reasonable request by ECM, an opportunity to audit the Service Provider Records and procedures used to maintain the Service Provider Records at any time during the Record Retention Period. Service Provider shall fully cooperate with ECM in connection with any such audit. In the event that any such audit shall reveal an overcharge by Service Provider to ECM, Service Provider shall remedy such overcharge and the cause for such overcharge immediately plus interest at the maximum rate per annum allowable by Applicable Law. In the event any such audit reveals an overcharge by Service Provider to ECM of greater than five percent (5%) during any calendar year, Service Provider shall (x) refund ECM the full amount of any such overcharge and (y) reimburse ECM for the costs and expenses of such audit. This Section shall survive the termination or expiration of the Agreement.
No Statements. Service Provider shall not make or cause to be made any statement, public announcement, public filing, claim, or representation of a business relationship between the Parties without the express prior written consent of ECM in each instance.
Assignment. Service Provider shall not assign or transfer, in whole or in part, any of its rights or obligations under this Agreement, voluntarily or by operation of law, except with the prior written consent of ECM, which may be granted or withheld in ECM’s sole and absolute discretion, and any attempt to do so without such consent shall be void. Service Provider shall, at all times, remain fully responsible and liable for the performance of Service Provider’s obligations herein, regardless if any portion or component of the Services are performed by a permitted assignee or transferee. ECM may assign or otherwise transfer any of its rights or obligations under this Agreement without Service Provider’s consent. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and each party’s permitted successors and assigns.
Modification and Waiver; Remedies Cumulative. The Agreement, or any portion thereof, including the MSA, the General Terms, or any SOW, may not be modified in any manner except by a written instrument duly executed and delivered by the Parties. The failure of either Party to (a) insist upon or enforce strict performance by the other Party of any provision of the Agreement or (b) exercise or partial exercise of any right or remedy under the Agreement shall not (i) be construed as a waiver or relinquishment of such Party’s right to enforce any such provision or right in any other instance or (ii) preclude either Party from exercising or pursuing any other rights or remedies available to it under law or in equity or as provided in the Agreement. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless, in either case, it is expressly stated in writing and signed by an authorized representative of the waiving party. The rights and remedies of the Parties hereunder shall be cumulative and not exclusive of any rights or remedies which they would otherwise have hereunder, whether at law or in equity.
Relationship of the Parties. Service Provider and ECM are independent contractors under the Agreement, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between Service Provider and ECM. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party.
Severability. Whenever possible, each provision of the Agreement shall be interpreted in a manner as to be effective and valid under Applicable Law, but if any provision of the Agreement is held to be invalid, illegal, or unenforceable in any respect under any Applicable Law in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision or any other jurisdiction and the Parties shall reform that provision to the extent necessary to enforce it and preserve the Parties’ original intent, failing which, it shall be severed from the Agreement with the balance of the Agreement continuing in full force and effect.
Governing Law and Arbitration.
The Agreement and all disputes, claims, causes of action or controversies (whether in contract, tort or statute) arising out of, relating to, or that may be based upon, the Agreement, or the negotiation, execution or performance of the Agreement, shall be governed by, and construed and enforced in accordance with, the laws of the State of California (including its statutes of limitations), without giving effect to any conflict-of-laws or other rules that would result in the application of the laws of a different jurisdiction.
Any dispute arising out of or relating to the Agreement shall be decided by final and binding arbitration, without any rights to appellate review, before a single retired State or Federal Judge or Justice, or in instances of trademark, copyright, or patent disputes, a Federal Judge, in Los Angeles County, California. The dispute shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time arbitration is filed, unless the amount in controversy is under $500,000, in which case, JAMS Streamlined Arbitration Rules and Procedures in effect at the time arbitration is filed shall apply, both of which are incorporated herein by reference. Commencement of an arbitration under the Agreement may be accomplished by service of the required “Demand for Arbitration Before JAMS” in accordance with the notice requirements of the Agreement.
In reaching a decision, the arbitrator shall have no authority to change, extend, modify, or suspend any of the terms of the Agreement and shall be required to follow Applicable Law. The arbitrator shall issue a written reasoned award, which may be entered as a judgment in any court of competent jurisdiction, and the parties, and each of them, irrevocably consent to personal jurisdiction in Los Angeles, California, with respect to any disputes arising out of or related to the Agreement. The arbitrator shall have the authority to issue as part of his/her award a permanent injunction, but such authority shall not serve as a bar to any Party seeking a preliminary injunction or other form of prejudgment remedy with a court of competent jurisdiction if so allowed under Applicable Law. Under such circumstances, the applicant shall not be required to demonstrate that the “award to which the applicant may be entitled may be rendered ineffectual without provisional relief,” as otherwise required by Cal. Code. Civ. Proc. § 1281.8. This transaction involves interstate commerce, and as such, the parties agree that the Federal Arbitration Act applies. To the extent of a conflict between the Federal Arbitration Act and the California Arbitration Act, the Federal Arbitration Act controls.
Unless otherwise required by Applicable Law, the parties to the arbitration shall initially share equally the costs of arbitration (including arbitrator’s fees), subject to re-allocation by the arbitrator, and, provided, further, that the prevailing party in any arbitration shall be entitled to recovery of its costs (including its share of the costs of arbitration and any expert fees) and reasonable attorney’s fees.
The Parties, each of which represents and warrants that they have been afforded the right to consult and have consulted with an attorney of their choosing regarding the Agreement, understand that by agreeing to use arbitration, they are each giving up any right that they may have to a judge or jury trial with regard to claims arising out of or related to the Agreement.
Attorneys’ Fees. Should either Party hereto institute any Action, including in any bankruptcy proceeding, to enforce or seek an interpretation of any provision hereof or for damages by reason of an alleged breach of any provision of the Agreement, the prevailing party shall be entitled to recover from the losing party or parties its reasonable attorneys' fees and expenses, including, without limitation, the costs of services of paralegals, legal assistants, legal secretaries, and expert witnesses, and costs of litigation, investigation, and appeal incurred by the prevailing party in such action or proceeding. The prevailing party shall remain entitled to recover the above attorneys' fees in the event the losing party or parties should become the subject of an order for relief under Title 11 of the United States Bankruptcy Code, any successor statute, or any other Applicable Law.
Notice. Unless otherwise specifically stated, all notices pursuant to the Agreement shall be in writing and shall be deemed to have been duly given to the other Party (a) on the day (i) delivered by a same-day courier; or (ii) after being sent by an overnight delivery service, all fees prepaid; or (b) on the second day after being mailed by USPS certified or registered mail, postage prepaid. All notices shall be sent by one Party to the other Party at the address set forth in the MSA.
No Presumption Against Drafter. Each of the Parties hereto has jointly participated in the negotiation and drafting of the Agreement. In the event of an ambiguity or a question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by each of the Parties hereto, and no presumptions or burdens of proof shall arise favoring any Party by virtue of the authorship of any of the provisions of the Agreement.
No Third-Party Beneficiaries. Except as otherwise expressly set forth in Section 10 (Indemnity, Insurance, and Limitation of Liability), nothing in the Agreement is intended to confer upon any Person other than the Parties hereto any rights or remedies, and the Parties do not intend for any third parties to be third-party beneficiaries of the Agreement.
Entire Agreement. The Agreement (a) constitutes the entire agreement between the Parties with respect to the subject matter hereof; (b) supersedes any previous oral or written arrangements or understandings, whether express or implied, relating thereto; and (c) is binding on and shall inure to the benefit of the Parties hereto and successors and assigns of Service Provider.
Headings and References. When a reference is made in the Agreement to a Section, Article, Exhibit or Schedule such reference shall be to a Section, Article, Exhibit or Schedule of the Agreement unless otherwise indicated. The section headings in the Agreement have been inserted as a matter of convenience in reference only and are not intended nor should they be construed to convey any substantive content in the interpretation of the Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of the Agreement as if set forth herein. The word “including” and words of similar import when used in the Agreement will mean “including, without limitation,” unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import when used in the Agreement shall refer to the Agreement as a whole and not to any particular provision in this Agreement. The term “or” is not exclusive. The word “will” shall be construed to have the same meaning and effect as the word “shall.” References to days mean calendar days unless otherwise specified.
Counterparts. The Parties agree that (i) the Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures were upon the same instrument, (ii) signatures on the Agreement communicated by facsimile or other similar electronic transmission or a digital signature provided through DocuSign (or some other similar service) shall be considered an original signature, and (iii) the use of electronic signatures and the keeping of records in electronic form be granted the same legal effect, validity, or enforceability as a signature affixed by hand or the use of a paper-based record keeping system to the extent and as provided for in any Applicable Law including the Federal Electronic Signatures in Global and National Commerce Act, California digital signature regulations, or any other similar state laws based on the Uniform Electronic Transactions Act.
Last updated: January 31, 2023
