Channel Partner Agreement
This Software as a Service Agreement (this “Agreement“), effective as of today (the “Effective Date“), is by and between TARA LLC, a Wyoming Limited Liability Company (“Provider“), and You (“Channel Partner“). Provider and Channel Partner may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Provider operates a mail forwarding service under US Global Mail brand that serves local, national and international subscribers throughout the U.S. with physical mailing address and mail forwarding services; and
WHEREAS, Provider developed and owns a proprietary software and Internet-based application to provide, digitize, store, forward and remail physical mails delivered to the Channel Partner’s physical address; and
WHEREAS, Channel Partner desires to provide physical addresses for Provider’s Customers, accept delivery of Customer’s mail, digitize, scan, store, securely shred, repack and remail them using Provider’s Services; and
WHEREAS, Provider desires to engage Channel Partner as an independent contractor to provide physical address and virtual mailbox services, accept delivery of Customer’s mail and forward them electronically to Customers; and
WHEREAS, Channel Partner must have access to Provider’s Services to be able to perform its responsibilities to Provider; and
WHEREAS, Provider desires to provide Channel Partner access to the Services, and Channel Partner desires to access Provider’s Services subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- “Authorized User” means Channel Partner’s employees, consultants, contractors, and agents who are authorized by Channel Partner to access and use the Services under the rights granted to Channel Partner pursuant to this Agreement.
- “Channel Partner” means a third party provider who is registered with the Post Office as a Commercial Mail Receiving Agency (“CMRA”) and accepts delivery of mail and remails it to the addressee in either digital or physical form using Provider’s Services.
- “Customer” means Provider’s customers who subscribe to Provider’s mail forwarding services on the Website. Customers will direct mail to Channel Partner’s designated physical address which shall then be handled per Customer’s instructions.
- “Customer Data” means information, data, mail, and other content, in any form or medium, that is submitted, uploaded, posted, or otherwise transmitted by or on behalf of Customer by Channel Partner or an Authorized User through the Services.
- “Customer Information” means business information including but not limited to names, emails, address, financial information of the Customer. All Customer Information is owned by Provider.
- “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Channel Partner either electronically or in hard copy form relating to the Services available at any usglobalmail.com domain.
- “Provider IP” means the Services, the Documentation, and any and all intellectual property rights associated therein, provided to Channel Partner or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP does not include Customer Data.
- “Services” means the software-as-a-service offering described in Exhibit A.
- “Virtual Mailbox Services” means the responsibilities described in Section 2(e) hereof, and any other activities that are reasonably required from Channel Partner to carry out mail forwarding services to Customers. It shall also include physical handling of mail.
- “Website” means https://www.usglobalmail.com, https://www.vdaak.com and any other website owned or operated by Tara, LLC.
- “Mails” means letters and packages sent to one person from another.
- Channel Partner’s Responsibilities and Representations.
- Provider engages Channel Partner, and Channel Partner accepts such engagement, as an independent contractor, to provide Virtual Mailbox Services to Provider on the terms and conditions set forth in this Agreement.
- Independent Contractor. Channel Partner acknowledges that it is doing business as an entity, it has all required business licenses and/or business tax registration. It shall maintain a business location that is separate from the business or work location of the Provider. Channel Partner advertises and holds itself out to the public as available to provide the same or similar services as those contemplated in this Agreement. Channel Partner shall not perform the type of work for which a license from the Contractor’s State License Board is required. Channel Partner has negotiated its own rates.
- Responsibilities for using Provider’s Services. Channel Partner is responsible and liable for all uses of the Services and Documentation resulting from access provided by Channel Partner, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Channel Partner is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement or violation of any rights of the Customers. Channel Partner shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
- Third-Party Products. Provider may from time to time make Third-Party Products available to Channel Partner. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Channel Partner does not agree to abide by the applicable terms for any such Third-Party Products, then Channel Partner should not install or use such Third-Party Products.
- Virtual Mailbox Services. Channel Partner’s Virtual Mailbox Services (“Responsibilities”) shall include the following:
- Grant physical mailing addresses to Customers;
- As a Commercial Mail Receiving Agent, act as an agent of the Customers in the course of carrying out its responsibilities;
- Accept delivery of Customers’ mails and create a digital copy of the mails in accordance with Provider instructions;
- In accordance with Provider instructions, upload mails into customer mailbox with required information such as dimensions, tracking info, weight and an image of such mail;
- Forward/Ship mails to Customers;
- Unpack parcels for individual reshipment;
- Deliver mails for in person pick-up requests;
- Consolidate mail and/or parcels for shipment;
- RTS (return to sender) mail as directed by Customers;
- Lookup mail for customers with incomplete addresses;
- Quarantine inappropriately addressed mails for customers as applicable;
- Store and safeguard physical mails in a manner and for the period prescribed by applicable state and federal law;
- When it is legally appropriate, securely destroy physical copies of Customer mails.
- Channel Partner must handle mails intended for Customers for a period of 6 months after the termination date of this Agreement as required by the Domestic Mail Manual 508 and re-mail and forward them to addresses provided by Provider using Providers postage.
- Channel Partner may set its own hours and location of work, but it must perform all requests made by Customers within 6 business hours and upload all mails received for Customers within twenty-four (24) hours. Expedited requests must be completed within 2 business hours.
- Channel Partner must have at least a computer with Windows 10 or higher or IOS 15.2 or higher operating system, scanning device, printer, storage appropriate to securely store physical mail and customary office equipment and furniture.
- Cybersecurity. Channel Partner shall maintain, monitor, and comply with a formal, written information security program that contains appropriate physical, technical and organizational measures to protect the security, confidentiality and integrity of Customer Data. Channel Partner shall review and, as appropriate, revise its information security program at least annually or whenever there is a material change in Channel Partner’s business practices that may reasonably implicate the security, confidentiality, or integrity of Customer Data. For purposes of this paragraph, “appropriate” shall be determined with reference to the risk presented by any unlawful processing, access, or disclosure of the Customer Data. This security program must be presented to Provider when asked and when updated anytime during the Term of this Agreement.
- Data Protection Standards. The parties agree that Provider is a controller and that Channel Partner is a processor or service provider for the purposes of processing Customer Data pursuant to the Agreement. Channel Partner shall, and shall ensure Channel Partner’s personnel shall, at all times comply with all foreign, national, state, regional and/or local laws, rules, regulations, security requirements and regulatory guidance applicable to the processing of Customer Data (“Data Protection Laws”) in connection with the processing of Customer Data and the provision of the Services and shall not by any act or omission cause Provider (or any other person) to be in breach of any of the Data Protection Laws. Nothing in this Agreement relieves Channel Partner of any responsibilities or liabilities under Data Protection Laws.
- Restrictions on Processing. Channel Partner shall maintain all Customer Data in strict confidence and shall only process and transfer the Customer Data in accordance with the Provider’s written instructions (including as set forth in the Agreement). Channel Partner shall ensure that persons authorized to process the Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- Transfer of Customer Data. Channel Partner shall only transfer Customer Data as instructed by Provider in writing or otherwise required by applicable law, and shall be responsible for ensuring that any transfer of Customer Data across national borders (whether performed by itself or a Sub-processor) complies with all applicable Data Protection Laws including but not limited to any cross-border data transfer requirements or prohibitions.
- Sub-processors. Channel Partner shall not engage a sub-processor without prior specific or general written authorization of Provider. In the case of general written authorization, Channel Partner shall inform Provider of any intended changes concerning the addition or replacement of other sub-processors, thereby giving Provider the opportunity to object to such changes. Channel Partner shall execute a written agreement with each sub-processor that includes provisions that are no less protective of Customer Data than the level of protection required by the obligations set forth in this Agreement. Channel Partner will remain liable for the acts and omissions of its sub-processors as though such acts and omissions were Channel Partner’s own.
- Destruction of Customer Data. To the extent not otherwise prohibited by applicable Data Protection Law, after the end of the provision of the Services under the Agreement, Channel Partner shall immediately return or securely destroy all originals and copies of Customer Data (whether in electronic or hard copy form) in its, or its sub-processors, possession, custody, or control or in accordance with the requirements of the Agreement and applicable Data Protection Law. In case Channel Partner or its sub-processor is legally obligated to store Customer Data for a longer duration, then Channel Partner shall inform Provider about the data that will be kept, the legal obligation and the retention period; at the end of such retention period Channel Partner shall delete the respective Customer Data.
- Data Subject Requests. Channel Partner shall assist Provider to enable Provider to comply with any request from a data subject to exercise the data subject’s right of access, right to rectification, restriction of processing, erasure, data portability, objection to processing, or the right not to be subject to automated individual decision making (“Request”). Provider shall notify Channel Partner of any Request related to Customer Data under Channel Partner’s control as soon as reasonably practicable. Channel Partner will use its best efforts to work with Provider to address any such Request. If Channel Partner receives a request related to any Customer Data, Channel Partner shall, where not legally prohibited from doing so, notify Provider as soon as reasonably practicable and shall not respond to any such requests unless Channel Partner has a mandatory obligation under applicable law to respond directly.
- Other Assistance. Upon Provider’s request, Channel Partner agrees to provide reasonable assistance to Provider to facilitate Provider’s compliance with Data Protection Laws, including where the Processing requires a data protection impact assessment, or a prior consultation with the regulatory authority. Taking into account the nature of the processing and the information available to Channel Partner, Channel Partner shall assist Provider in ensuring compliance with Customer’s obligations pursuant to Articles 32 to 36 of the EU General Data Protection Regulation, Regulation 2016/679 (and any similar obligations under applicable Data Protection Laws).
- Breaches. Channel Partner shall notify Provider in writing of any accidental or unlawful destruction, loss, alteration, or unauthorized processing of Customer Data in Channel Partner’s or a sub-processor’s possession or control (a “Breach”) in the most expedient time possible under the circumstances, and in any event within one (1) business day of discovering the Breach. A Breach shall be deemed discovered by Channel Partner or its sub-processors as of the first day on which the Breach is known to Channel Partner or sub-processor (including an individual employee or officer or other agent of Channel Partner or sub-processor) or should reasonably have been known to have occurred with a reasonable certainty. Such notice shall summarize in reasonable detail the timing and nature of the Breach, the impact on Provider, and the data subjects affected by such Breach and the corrective action taken or proposed to be taken by Channel Partner.
- Relationship of the Parties.
- Subject to the term of this agreement and the Service Level Agreement (“SLA”) set forth in Exhibit C, Provider shall not control or direct the manner or means by which Channel Partner or Authorized Users perform the Services, including but not limited to, the time and place Channel Partner performs its responsibilities. Channel Partner’s responsibilities are outside the usual course of the Provider’s business. Channel Partner is customarily engaged in an independently established trade, occupation, or business of the same nature as the responsibilities described in Section 2(b).
- Equipment and materials. Unless agreed otherwise from time to time, Channel Partner shall furnish, at its own expense, the materials, equipment, supplies, and other resources necessary to perform the Services. Provider shall provide Channel Partner with access to its Services described in Exhibit A.
- Channel Partner shall comply with all rules and procedures communicated to Channel Partner in writing by Provider including those related to confidentiality, data privacy and data security.
- Channel Partner’s Credentials. Channel Partner shall maintain proper registration as a Commercial Mail Receiving Agency (“CMRA”) and comply with all applicable state and federal laws as well as postal regulations.
- Provider’s Right of Inspection. Channel Partner shall provide right to access to its facilities to Provider, or any of its officers at reasonable times, in order to monitor and evaluate performance, compliance, and quality assurance under this Agreement.
- Reporting. Any reports Channel Partner provides to Provider must be accurate, complete and timely. During the Term and for six (6) years thereafter, Channel Partner will keep all usual and proper records and books of account and all quality and performance reports related to the Services (“Records”). Channel Partner shall make available to Provider all information necessary to demonstrate compliance with applicable Data Protection Laws. Provider or its representatives may audit Channel Partner’s Records and/or inspect Channel Partner’s facilities to verify Channel Partner’s statements and compliance with this Agreement. Provider will provide reasonable notice to Channel Partner prior to the start of the audit or inspection and will use commercially reasonable efforts to avoid disrupting Channel Partner’s operations as result of an audit.
- Access and Use.
- Provision of Access. Subject to and conditioned on Channel Partner’s compliance with all the terms and conditions of this Agreement, Provider hereby grants Channel Partner a non-exclusive, non-transferable (except in compliance with Section 21(g)) right to access and use the Services during the Term, solely for use by Channel Partner and Authorized Users in accordance with the terms and conditions herein. Such use is limited to Channel Partner’s internal use. Provider shall provide to Channel Partner the necessary passwords and network links or connections to allow Channel Partner to access the Services.
- Documentation. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Channel Partner a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 21(g)) access to use the Documentation during the Term solely for Channel Partner’s internal business purposes in connection with its use of the Services.
- Use Restrictions. Channel Partner shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Channel Partner shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights. Provider reserves all rights not expressly granted to Channel Partner in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Channel Partner or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Channel Partner’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Channel Partner’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Channel Partner or any Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Channel Partner has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) fails to maintain CMRA registration or otherwise comply with applicable state and federal laws; or (F) Provider’s provision of the Services to Channel Partner or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Channel Partner to access the Services (“Service Suspension”). Provider shall use reasonable efforts to provide written notice of any Service Suspension to Channel Partner and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Channel Partner or any Authorized User may incur as a result of a Service Suspension.
- Service Levels and Support. Channel Partner shall receive onboarding training and ongoing support.
- Channel Partner’s Business Information. Subject to and in compliance with all other terms and conditions of this Agreement, Channel Partner hereby grants Provider a non-exclusive license during the term of this Agreement to: (i) display Channel Partner’s logo and other brand elements on the Website; (ii) provide business information such as address, business name, and scope of business about Channel Partner.
- Regulatory Compliance. Channel Partner must comply with and adhere to USPS Domestic Mail Manual 508 at all time https://pe.usps.com/text/dmm300/508.htm .
- Security and Mail Handling Procedure. Channel Partner shall
- Perform background or security check of Employees who will handle mails and register them with e-verify prior to starting work;
- Secure mail center when not in use;
- Restrict access to the mailroom and mail processing area to Authorized Users only;
- Ensure mail and packages should not be left unattended on the loading dock or in a publicly accessible area;
- Keep detailed logs of employee access, arrivals and departure;
- Install an intrusion detection system;
- Use CCTV to record and store unobstructed surveillance of mail processing, handling and operation areas and exterior of the store;
- Ensure adequate lighting for operations area, exterior and CCTV;
- Ensure that accountability for lock and key control is in place;
- Take care that mail and packages are sorted in a secure facility that provides access only to mail center personnel;
- Keep mail storage, processing, and handling areas off limits to visitors and customers of the store;
- Ensure employees do not operate personal devices while processing and handling mail;
- Train workers to recognize and handle pieces of mail in a secure manner;
- Identify a single point of contact to open mail;
- Restrict drivers and deliveries to a specific area;
- Not open mail in an unauthorized area;
- Develop specific screening and inspection procedures for all incoming mail or package deliveries and train personnel in those procedures;
- Map and document end-to-end mail receiving and delivery processes;
- Track all accountable mail items and packages from the moment they are received until they are shipped or delivered to and signed for by the intended recipient.
- Fees and Payment.
- Fees. Provider shall pay Channel Partner the aggregate percentage fee, as set forth in Exhibit B, for each Customer subscribed on the Website to receive mail at Channel Partner’s facilities.
- Taxes. All Fees and other amounts payable by Provider under this Agreement are exclusive of taxes and similar assessments. Channel Partner is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Channel Partner hereunder, other than any taxes imposed on Provider’s income.
- Insurance Coverage. Channel Partner shall maintain the following amounts of insurance coverage in connection with the Services:
During the Term of this Agreement, Channel Partner, shall at its own cost, obtain and keep in force for the benefit of Channel Partner and Provider insurance/and or bonds required by law and the following insurance to be issued by insurance carriers with a minimum rating in A.M. Best of A- or better with minimum limits as set forth below:
(i) Worker’s Compensation per statutory requirements;
(ii) Employer’s Liability Insurance; with minimum limits on an occurrence basis of $1,000,000 per occurrence;
(iii) Commercial General Liability with minimum limits on an occurrence basis of: $1,000,000 per occurrence and $2,000,000 aggregate (include Bodily Injury, Broad Form Property Damage, Completed Products, Completed Operations, Premises/Operation, Contractual, Owners and Channel Partner Protective; and Umbrella Liability with minimum of $5,000,000; and
(iv) Business Automobile Liability Insurance covering all vehicles used in connection with the Virtual Mailbox Service and covering Bodily Injury and Property Damage with a combined single limit equal to: $2,000,000 (include owned, non-owned and hired vehicles);
(v) Professional Errors and Omissions Insurance covering the activities of Channel Partner written on a “claims made” basis with a minimum limit equal to: $5,000,000 per occurrence (include coverage for breach of privacy, loss of confidential information and identity theft); and Commercial Crime Insurance covering the dishonest activities of Channel Partner and Channel Partner Personnel written on a “claims made” basis with a minimum limit equal to: $5,000,000 per occurrence.
(vi) Provider reserves the right to require increased limits of coverage referred to in this Agreement as circumstances may dictate. Provider shall be named as additional insured with respect to General Liability Insurance and Professional Errors and Omissions Insurance and named Loss Payee on Commercial Crime Insurance. It is the intent of both parties to this Agreement that all insurance purchased by Channel Partner in compliance with this Agreement, will be primary to any other insurance owned, secured, or in place by Provider whose insurance shall not be called upon by Channel Partner’s insurer to contribute in any way. Channel Partner shall secure endorsements to this effect from all insurers of such policies. At Provider’s request, Channel Partner shall furnish Provider with certificates of insurance and with copies of original endorsements affecting coverage required by this clause. The certificates and endorsements shall identify Provider as an additional insured and shall be signed by a person authorized by that insurer to bind coverage on its behalf. Provider reserves the right to require complete, certified copies of all required insurance policies, at any time. This Section shall in no way affect the indemnification, remedy or warranty provisions set forth in this Agreement.
- Confidential Information. Channel Partner and its Personnel shall maintain in confidence and safeguard all Confidential Information and use the same only for the purposes of conducting business with Customers in the manner contemplated by this Agreement. The term “Confidential Information” means all information, know-how, specifications, materials, models, plans, discoveries, trade secrets, records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, Customer Data, products, services (including the terms of this Agreement) whether written or oral or presented, stored or maintained by electronic, magnetic or other means, media or devices) disclosed or provided to Channel Partner or its Personnel by or on behalf of Provider and Customer or observed by Channel Partner and/ or its Personnel, concerning its business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of Channel Partner that contain or otherwise reflect any of the foregoing. Channel Partner further agrees that prior to disclosing any Confidential Information to its Personnel, Channel Partner will advise such Personnel of the confidential and proprietary nature of the Confidential Information. If Channel Partner or its Personnel access or otherwise process any Customer Information during performance of Services, Channel Partner shall view and process Personal Information only on a need-to-know basis and only to the extent necessary to perform the Services or upon Provider’s written instructions. Channel Partner undertakes to keep Personal Information confidential and agrees not to disclose Personal Information to third parties without having first received express written approval from Provider. Channel Partner agrees to be responsible for any breach of this Section by it or its Personnel. Confidential Information does not include information that, at the time of disclosure is: (a) known to the receiving Party at the time of disclosure; (b) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (c) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or Authorized Users who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Intellectual Property Ownership; Feedback.
- Provider IP. Channel Partner acknowledges that, as between Channel Partner and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
- Customer Data. Channel Partner acknowledges that Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Channel Partner shall not delete, rent, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available any Customer Data to any unauthorized person.
- Feedback. If Channel Partner or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Channel Partner hereby assigns to Provider on Channel Partner’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
- Warranty Disclaimer. THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CHANNEL PARTNER’S, CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Provider Indemnification.
- Provider shall indemnify, defend, and hold harmless Channel Partner from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses“) incurred by Channel Partner resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, copyrights, or trade secrets; provided however that Channel Partner promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Channel Partner agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Channel Partner to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Channel Partner.
- This Section 17(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider.
- Channel Partner’s Indemnification. Channel Partner shall indemnify, hold harmless, and, at Provider’s option, defend Provider, its affiliates and their respective successors, directors, officers, employees and agents (each an “Indemnified Party”), from and against any Losses resulting from any Customer or Third-Party Claim arising out of (A) any breach of any representation, warranty or covenant contained in this Agreement, including but not limited to breaches of Confidential Information, data privacy, and Intellectual Property, by Channel Partner or any Channel Partner Personnel; (B) the negligent, reckless or willful acts or omissions of Channel Partner or Channel Partner Personnel resulting in any bodily injury or death to any person or loss, disappearance or damage to tangible or intangible property; (C) Channel Partner (or any Channel Partner Personnel’s) infringement, misuse or misappropriation of any third-party Intellectual Property; (D) any action instituted by Channel Partner personnel or Authorized User against Provider for wages, fringe benefits, other compensation, or similar claims under applicable law, and any claims challenging the Channel Partner’s right to dismiss its personnel; (E) any claims arising from or related to a Breach, to the extent such Breach was caused by Channel Partner’s or a sub-processor’s acts or omissions; (F) Channel Partner’s violation of Customer’s privacy rights; and (G) and any Third-Party Claims based on Channel Partner’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided however that Channel Partner may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. (J) any claim arising out of working without a
- Liquidated Damages. . If Channel Partner’ breach of this Agreement as set forth herein is not cured within 48 hours of the Provider’s written request, Channel Partner agrees that Provider would suffer irreparable harm to their reputation which the Provider has built over 20 years. The Channel Partner shall pay to the Provider an amount equal to $1000 for each business day a Channel Partner Breach continues (the “Liquidated Damages”). The parties intend that the Liquidated Damages constitute compensation and not a penalty. The parties acknowledge and agree that the Provider’s harm caused by a Channel Partner Breach would be impossible or very difficult to accurately estimate as of the Effective Date and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from a Channel Partner Breach. The Channel Partner’s payment of the Liquidated Damages is the Channel Partner’s sole liability and entire obligation and the Provider’s exclusive remedy for any Channel Partner Breach.
- Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO CHANNEL PARTNER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000, WHICHEVER IS LESS.
- Term and Termination.
- Term. The term of this Agreement shall commence on the Effective Date indicated above and shall continue unless either Party makes a written request for cancellation at least 30 days in advance.
- Termination. In addition to any other express termination right set forth in this Agreement:
- Provider may terminate this Agreement, effective on written notice to Channel Partner, or/and without notice, may take the Channel Partner offline from its websites so no more customers will be sent to the Channel Partner, if Channel Partner:
(A) fails to maintain CMRA registration; or losses USPS authorization to be a CMRA;
(B) breaches any of its obligations under this Agreement;
(C) assigns or attempts to assign any interest in this Agreement or delegation of Channel Partner’s obligations under this Agreement without prior written consent;
(D) enters into any sale, transfer or relinquishment, voluntary or involuntary, by operation of law or otherwise, of any material interest in the direct or indirect ownership or any change in the management of Channel Partner;
(E) fails for any reason to function in the ordinary course of business;
(F) fails to fulfill or perform any of the responsibilities or obligations of Channel Partner under this Agreement;
(G) is convicted in a court of competent jurisdiction of Channel Partner, or a manager, partner, principal, officer or major stockholder of Channel Partner, for any violation of law;
(H) submits to Provider false or fraudulent reports or statements including, without limitation, claims or any refund, credit, rebate, incentive, allowance, discount, reimbursement or other payment;
- either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) materially breaches this Agreement, and such breach is incapable of cure; (B) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, (E) Channel Partner loses property lease; (F) Soliciting Providers’ Customers.
- Effect of De-listing or Expiration or Termination.
- Channel Partner shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed upon Provider’s request;
- No expiration or termination will affect Provider’s obligation to pay all Fees that may have become due before such expiration or termination;
- Provider shall create a closing procedure to safeguard Customer’s stored physical mails and Customer Data and to ensure continued uninterrupted Customer service and Channel Partner shall comply with the closing procedure;
- Channel Partner shall transfer all physical mail in Channel Partner’s possession and any new mails that might come in for Provider’s customers for up to a period of 60 days without delay to Provider. Provider or customer shall pay for forwarding of such mail.
- Collaboration after Termination. Channel Partner shall collaborate with and assist Provider to ensure uninterrupted service to Customers after de-listing or termination of this Agreement. After de-listing or termination of this Agreement, Channel Partner shall transfer all Customer materials, Customer Data, and Customer Information to Provider without delay.
- Covenant Not to Solicit Customers. During the terms of this Agreement, and for a period of twelve (12) months following the expiration of this Agreement, Channel Partner agrees and covenants that it shall not, directly or indirectly, in any form or manner, contact, solicit, or facilitate the contacting or solicitation of, any Customer for the purpose of competing with Provider.
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
- Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, pandemics explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
- Assignment. Channel Partner may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.