CT Business License Services Terms and Conditions
1. Term and Termination.
The term of this Agreement will be initially for one (1) year from the effective date and will automatically be extended for successive one (1) year periods, unless at any time either party elects to terminate this Agreement and gives at least sixty (60) days prior written notice of termination to the other party (the "Term"). However, if either party becomes the subject of a voluntary petition filed pursuant to any applicable federal or state bankruptcy or insolvency law, the other party may immediately terminate the Agreement upon written notice.
Though the term of this Agreement begins upon the effective date, the actual Services cannot and will not be provided until CT has received, in addition to this Agreement, the necessary data and where applicable Power of Attorney, to commence the Services. Company acknowledges and agrees that performance of the Services shall be dependent on the timely completion of Company’s responsibilities and obligations under this Agreement. Notwithstanding anything to the contrary herein, Company will be responsible for (i) the accuracy and completeness and the sufficiency and effectiveness under applicable law of all data, documents, templates or other information provided to CT or inputted into CT’s system by Company or on Company’s behalf and (ii) the consequences of any instructions given by Company to CT.
2. Services. CT will provide the services as set forth in the Order Form (the “Services”) during the Term.
3. Obligations of Company. Company agrees to:
a. Supply a list of entities/regulatory filings/jurisdictions to be included as Exhibit A to the Order Form. CT recognizes that the list of entities/regulatory filings/jurisdictions may change throughout the life of this Agreement. As the Company notifies CT of these changes in writing, Exhibit A will be automatically amended to reflect the most recent listing of entities/regulatory filings/jurisdictions. Company is responsible for promptly notifying CT of all such changes to Exhibit A.
b. Provide CT with all of the information required for preparation, filing and tracking of regulatory filings, with such information to be provided in such format as reasonably required by CT, such as comma-separated values (CSV) format.
c. Update CT regarding any changes to information required for submitting regulatory filings in a timely manner and in a format specified by CT, as CT will rely on such information for purpose of preparation of the relevant forms and information submissions.
d. Pay invoices in accordance with the terms on said invoices to be sent by CT of the previous month’s filings.
e. Provide CT with payment in advance for service fees, regulatory fees or compliance fees prior to commencing the Services where CT deems necessary.
f. When providing CT with regulatory filing documents and data, regulatory filing documents and data must be received by CT seven days prior to the submission deadline or CT bears no responsibility for penalties associated with late submissions.
g. Customer agrees that in the event Customer cancels a filing with less than 30 days’ notice to CT, Customer shall pay to CT the full amount of the filing fee for each filing that has been cancelled. .
4. Fees. Company agrees to pay CT the fees as provided for in the applicable Order Form. Such fees may be revised from time-to-time in accordance with CT’s general pricing practices, subject to any limitation set forth in an applicable Order Form.
5. Confidential Information. Each party to this Agreement (each, a "Party") acknowledges that during the term of this Agreement, each Party may receive or have access to confidential and proprietary information about the other Party, and that this engagement by Company may bring the Parties into close contact with confidential and proprietary information of the other Party or third parties with whom Company or CT conducts business. "Confidential Information" includes all business and other proprietary information of the Party, written or oral, including without limitation the following: (i) information relating to planned or existing businesses or business initiatives; organizational restructuring plans; and actual and projected sales, profits and other financial and business information, (ii) information relating to technology, such as computer systems and systems architecture, including, but not limited to, computer hardware, computer software, source code, object code, documentation, methods of processing and operational methods; and (iii) information about the Party’s employees and personnel.
- Exclusions from Confidential Information.
Notwithstanding the above, Confidential Information shall not include any portion of any information which: (a) is generally available to the public prior to its receipt by the receiving Party from the disclosing Party; (b) becomes generally available to the public after receipt by the receiving Party from the disclosing Party through no fault of the receiving Party or any of its subsidiaries, other affiliates, directors, officers, employees, contractors, subcontractors, or other agents; (c) is or becomes available to the receiving Party through a source other than the disclosing Party or its subsidiaries, affiliates, directors, officers, employees, contractors, subcontractors or other agents that is not known or reasonably believed to have any legal, contractual or fiduciary duty of confidentiality; or (d) is or has been developed by the receiving party independently of the disclosing Party or any of its subsidiaries, other affiliates, directors, officers, employees, contractors, subcontractors, or other agents and their respective Confidential Information.
- Treatment of Confidential Information.
Each Party covenant and agree that: (i) it will keep and maintain all Confidential Information of the other Party in strict confidence, using such degree of care as is appropriate and reasonable to avoid unauthorized use or disclosure; (ii) it will use and disclose Confidential Information of the other Party solely for the purposes for which such information, or access to it, is provided pursuant to the terms of this Agreement, including to the extent necessary to any third party contractor who may be used to provide any of the Services hereunder; and (iii) it will not otherwise, directly or indirectly, disclose the other Party’s Confidential Information to any third party, except with disclosing Party’s prior written consent as permitted under the terms of this Agreement or as otherwise permitted hereunder.
- Compelled Disclosure.
In the event either Party receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information of the other party, the recipient shall promptly notify the other Party and cooperate with such other Party, at its cost and expense, in such other Party’s efforts to avoid, limit the required disclosure of or otherwise request confidential treatment for any such Confidential and Proprietary Information. Unless the demand shall have been timely limited, quashed or extended, then notwithstanding the confidentiality (non-disclosure) terms in this Section, the recipient shall be entitled to comply with such demand as, when and to the extent required or permitted by law; provided the recipient shall only provide such Confidential Information as is required to be disclosed.
- Return or Destruction of Confidential Information.
Upon the termination of the Agreement by either Party (in accordance with this Agreement) or at any other time upon the other Party’s request, each requested Party will return or, at the election of the Party holding the other Party’s Information, destroy all tangible Confidential Information provided by or on behalf of the other Party. Such destruction or return will be confirmed by each Party in writing to the other Party. Notwithstanding anything to the contrary contained herein, the recipient Party shall not be required to destroy copies of any computer records or files containing Confidential Information which have been created pursuant to any automatic archiving or backup procedures which cannot reasonably be deleted; provided that such receiving party shall not access any such records or files following its destruction of the Confidential Information.
- Injunctive Relief.
The Parties acknowledges that the disclosure of Confidential Information may cause irreparable injury to the disclosing Party and damages, which may be difficult to ascertain. Therefore, the disclosing Party shall, upon a disclosure of any Confidential Information, be entitled to seek injunctive relief or other equitable relief against the receiving Party.
6. Limitation of Liability.
6.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY HERETO SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING LOSS OF PROFITS, REVENUES, SAVINGS, BUSINESS OR DATA), REGARDLESS OF THE FORM OF THE CLAIM OR ACTION (WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, STATUTE OR ANY OTHER LEGAL THEORY) AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLE EXISTENCE OF SUCH LOSSES OR DAMAGES.
6.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR CLAIMS BY COMPANY ARISING AS A RESULT OF AND ONLY TO THE EXTENT OF CT'S FRAUD OR WILLFUL MISCONDUCT, FOR WHICH THERE SHALL BE NO LIMITATION ON DIRECT DAMAGES, CT'S TOTAL AND CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY COMPANY TO CT IN THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST CT BY COMPANY, LESS AGGREGATE DAMAGES PREVIOUSLY PAID BY CT UNDER THIS AGREEMENT.
7. Disclaimer of Warranties. CT DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. NO EMPLOYEE OR AGENT OF CT OR ANY OF ITS SUBSIDIARIES OR AFFILIATES IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT. CT IS NOT ENGAGED IN RENDERING LEGAL OR OTHER PROFESSIONAL SERVICES. THE SERVICES DO NOT INCLUDE THE PROVISION OF LEGAL, ACCOUNTING OR OTHER PROFESSIONAL ADVICE AND SHOULD NOT BE RELIED UPON AS SUCH. IF LEGAL OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICES OF A COMPETENT PROFESSIONAL PERSON SHOULD BE SOUGHT. CT PERSONNEL SHALL NOT RENDER ADVICE TO COMPANY REGARDING THE ACCURACY, COMPLIANCE WITH JURISDICTIONAL REQUIREMENTS OR COMPLETENESS OF THE REGULATORY FILINGS.
8. Independent Contractor Status and Authority. Each party to this Agreement hereby agrees and represents and warrants that it is an independent contractor and is not the other party’s agent or employee or partner or joint venture for any purpose whatsoever.
9. Governing Law. This Agreement shall be governed by the laws of the State of New York without giving effect to any law or statutory provision which would require or permit the application of the laws of another jurisdiction. The Parties further agree that the Uniform Computer Information Transactions Act (UCITA) does not apply to this Agreement. Any Party bringing a legal action or proceeding against any other Party arising out of or relating to this Agreement shall bring the legal action or proceeding in any court of the State of New York sitting in Manhattan. Each Party waives, to the fullest extent permitted by law, (a) any objection which it may now or later have to the laying of venue of any action or proceeding arising out of or relating to this Agreement brought in any court of the State of New York sitting in Manhattan; and (b) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY, TO THE EXTENT PERMITTED BYLAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS IT CONTEMPLATES. Each party acknowledges that it has received the advice of competent counsel.
10. Additions or Modifications. No additions or modifications from the terms and conditions of this Agreement will be binding upon any party hereto unless agreed to in writing by each party.
11. Assignment. No party may assign its rights and obligations under this Agreement without the prior written consent of each other party; however, CT may assign this Agreement to any affiliate in connection with any internal restructuring or re-organization or connection with any sale transaction involving CT or other affiliate who owns the CT assets.
12. Non-solicitation. Company agrees that, during both the term of this Agreement and for the twelve (12) months following the expiration or termination of this Agreement, Company shall not directly or indirectly, solicit, attempt to hire, or hire any person employed by CT to work for Company or for another entity, firm, corporation, or individual; provided, that solicitations incidental to general advertising or other general solicitations in the ordinary course not specifically targeted at such persons and employment of any person not otherwise solicited in violation hereof shall not be considered a violation of this Section 12.
13. Waiver. A party may not waive a right or remedy except pursuant to a writing executed by such party. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy or condition.
14. Survival. All provisions hereof relating to limitation of liability and disclaimer of warranties shall survive the completion of the Services or any earlier termination, expiration or rescission of this Agreement.
15. Force Majeure. Neither Party shall be liable for failure or delay in performance of its obligations hereunder (other than Company’s obligation to pay the Fees for Services provided) when such failures or delay is caused by events or causes beyond the control of such Party, including, without limitation, any of the following events, acts of God, extreme weather, natural calamities, labor strikes or unrest, terrorist attacks, government actions, power outages and disruptions in communication lines.
16. Notices. All notices under this Agreement shall be delivered (i) to the address set forth in the Order Form, for the Customer, and (ii) for CT, to C T Corporation System, 28 Liberty Street, 42nd Fl, New York, NY 10005, Attn: GM, with two copies, respectively, to the foregoing address, Attn: Associate GC, 43rd Floor and Attn: EVP & General Counsel, 26th Floor. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given: (a) on the date of service if served personally on the party hereto to whom notice is to be given; (b) on the day after delivery to Federal Express or similar overnight carrier or the Express Mail Service maintained by the United States Postal Service; or (c) on the fifth day after mailing, if mailed to the party to whom such notice is to be given, by first class mail, registered or certified, postage prepaid and properly addressed.
17. Interpretation. The section headings in this Agreement are for convenience only and do not control the interpretation of this Agreement. The terms “include,” “includes,” and “including” mean without limitation by reason of enumeration. The terms “herein,” “hereof,” and “hereunder” refer to this entire Agreement. Unless the context otherwise requires, the term “or” is used in its inclusive sense (“and/or”).
18. Entire Agreement. This Agreement constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties, including any confidentiality agreement or non-disclosure agreement previously entered into between the parties, and there are no warranties, representations or agreements between the Parties in connection with the subject matter hereof except as set forth in this Agreement. In the event of a conflict between the terms of this Agreement and any exhibit, schedule or attachment, the terms of this Agreement shall govern. Neither Party shall be bound nor liable to the other Party for any representation, warranty, promise, covenant or understanding made by any agent, employee or other person that is not embodied in this Agreement. Purchase orders, work orders or similar documents submitted to CT by Company will be for Company’s internal administrative purposes only and the terms and conditions contained in any such purchase orders, work orders or similar documents will have no force and effect and will not amend or modify this Agreement.
19. Counterparts. This Agreement may be signed in more than one counterpart, each of which shall be binding and all of which taken together shall be one and the same agreement.