Same Day Process Service AgreementThis PROCESS SERVICE AGREEMENT (the "Agreement") is made between SAME DAY PROCESS SERVICE INC. (hereinafter referred to as "Contractor"), and the Client (hereinafter referred to as "Client," collectively with Contractor the "Parties")RecitalsWHEREAS, Contractor is in the business, among other things, of effecting personal service of judicial process, substituted service of judicial process, judicial and administrative filings, and delivery of non-judicial documents ("Contractor's Services"), and
WHEREAS, Client seeks to utilize some of the Contractor's Services, andWHEREAS, Contractor and Client desire to enter into an agreement which sets out the terms and the conditions pursuant to which Contractor will provide services and which sets out the charges for those services
NOW THEREFORE, in consideration of the mutual covenants and premises contained herein, the Parties agree as follows:ARTICLE ONEDuties and Responsibilities of Contractor
1.1 Representations and Warranties
Contractor represents and warrants as follows:
1.2 Duties, Responsibilities and Releases of Contractor
a. Contractor may terminate Client's use of Contractor's. website and Services at anytime for any reason or no reason at all.
b. Client's use of Contractor Services and information on the web site is at its own and sole risk.
c. All Services are provided on an "AS IS" and "AS AVAILABLE" basis.
d. Contractor disclaims all warranties and duties of any kind, express, implied or statutory, including, but not limited to, any implied warranties of merchantability or fitness for a specific purpose, non-infringement or title, duties of workman-like effort, or lack of negligence.
e.Contractor. assumes no responsibility for errors or omissions on its website and is not responsible in any way for the functionality, specifications, or any other aspect thereof.
f. Contractor does not guarantee continuous, uninterrupted or secure access to Contractor's services or that defects in its web site will be corrected.
g. Contractor may at any time and without prior notice change the hours of operation to limit Client's access to Contractor in order to perform repairs, make modifications as a result of circumstances beyond the reasonable control of Contractor and to add or withdraw products or features to or from Contractor at any time.
h. Client is responsible for implementing sufficient procedures to satisfy Client's particular requirements for protection of your system and/or accuracy of data, and for maintaining a means of reconstruction of lost data. Without limiting the above, Client agrees that Contractor makes no warranties or undertakes any duties regarding, without limitation, the following: infringement of title or quiet enjoyment; (ii) functionality, including functionality of search or retrieval software; (iii) content, format, accuracy, completeness, or completion of forms; (iv) receipt (timely or otherwise), approval and/or processing of documents by courts and/or any other government agencies; (v) appropriateness or propriety of documents handled with respect to any Services; (vi) timeliness of Services; (vii) uninterrupted, secure, error or virus-free Services or storage; (viii) adequacy of fees paid to courts and/or other government agencies; (ix) any alteration or destruction of a document resulting from third parties' unauthorized access to or use of Contractor's website (e.g. computer hackers) and any losses or damages or alteration of a document or information on any party's computer system or elsewhere resulting from the transmission of computer "viruses" or other damaging or destructive software or software components by or through Contractor.i. With respect to filing documents with the court, Client is solely responsible for transmitting documents correctly and in a timely fashion, for confirming the filing charges on the receipt, and for checking and responding to notifications, email or otherwise, for rejected filings or documents. If Client does not receive an email confirmation within (3) days (or before the expiration of any filing or service deadline) documenting the completion of your assignment, it is Client's responsibility to immediately contact Contractor and provide details of the document transmission, including the original filing or service receipt, which was generated at the time the filing or service was performed by Contractor to enable Contractor to determine what action should be taken, and if necessary to manually file and serve such documents before the expiration of any applicable deadline. Client waives and releases any claims based upon errors, defaults, or omissions if Client fails to provide notice and/or resubmit to the Court or otherwise comply with this paragraph.j. By uploading content to or submitting any materials for use on Contractor's web site, Client grants (or warrant that the owner of such rights has expressly granted) Contractor a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license, with right to sublicense, to use, reproduce, distribute, modify, adapt, publish, publicly perform, publicly display, digitally display and digitally perform, translate, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout this universe; provided that Contractor may only exercise the foregoing right and license (a) in connection with its operation and maintenance of Contractor's web site and/or the provision of related goods and services to authorized users and/or their designees, and/or (b) to comply with or satisfy applicable court rules or procedures. Client agrees that Client shall have no recourse against Client for any alleged or actual infringement or misappropriation of any proprietary right with respect to your communication with Contractor.ARTICLE TWODuties and Responsibilities of Client2.1 Representations and Warranties
Client represents and warrants as follows:
2.2 Duties, Responsibilities and Releases of Client
a. Client will to adhere to the laws and regulations of the jurisdiction of the court with which Client is conducting business through Contractor;
b. Client recognizes that it is subject to civil and criminal penalties should it violate those laws and regulations;
c. Client acknowledges that any information provided by Contractor to Client in the course of performing the Services may be derived from local government agency databases with respect to which Contractor. has no control, and that Contractor shall have no liability whatsoever with respect to such information, including, without limitation, in the event any such information is inaccurate, out of date, contains errors or omissions, or is otherwise incorrect in any way.
d. Client acknowledges that Contractor is not responsible for notifying Client of changes to court rules.
e. At no time shall any contact between Client and Contractor constitute the giving of legal advice by Contractor.
f. Client will to use reasonable efforts to take precautions against the contamination of Client's computer systems and files by software viruses, worms or other malicious agents. At a minimum, such precautions shall include the installation, upgrading and use of commercial virus detection software to scan files and documents transmitted to Contractor.
g. Client will provide true, accurate, current, and complete information about Client and/or its organization, as appropriate, as prompted by the Contractor registration form or any other form, including, but not limited to, Client's e-mail address for notices and any other communications;
h. Client will) maintain and promptly update the foregoing information to keep it true, accurate, current, and complete;
i. Client will provide to Contractor such additional information that Contractor may request from time to time for purposes reasonably related to your use of Contractor's web site or Services.
j. Client agrees that its sole remedy for any breach of this Agreement by Contractor shall, at the option and sole discretion of Contractor, be the following: correction of any Service causing Client damage; or (ii) refund of the amount Client paid for the particular use of the Service that caused damages incurred by Client in reasonable reliance on the Service. Client further agrees that the damage exclusions and this limitation of liability shall apply even if any remedy of its essential purpose fails.
k. Client shall indemnify, defend, protect and hold harmless Contractor from and against all losses, claims, and expenses (including attorneys' fees and costs) arising out of or relating to: Client's breach of any terms of this Agreement, (ii) the determination by a jurisdiction that Client has improperly utilized the Services of Contractor to violate the laws and regulations of the jurisdiction; (iii) Client's use of Contractor's or Client's failure to pay any sums due Contractor or any local government; or (iv) Client supplying inaccurate, out of date, errors or omissions, or otherwise incorrect information as well as any action taken by Client as a direct or indirect result of the information displayed on Contractor's web site.ARTICLE THREEFees, Costs and Charges
3.1 Contractor's current Fee Schedule may be requested by email from client.
3.2 Not withstanding the Fee Schedule , Contractor retains the sole discretion to determine the fees charged to Client for using Contractor's its web site or Services.
3.3 Fees for may vary by jurisdiction.
3.4 Contractor may advance filing fees, witness fees, etc. (collectively, "Disbursements") on Client's behalf in connection with the Services. By using the Services Client you will be deemed to have requested Contractor to advance such fees and agree to repay such advances on the terms and conditions set forth in this Agreement and the applicable invoice. Contractor does not charge a fee in connection with advancing funds on Client's behalf.
3.5 Contractor may change its fee structure at any time. Contractor will provide notice to Client of any such changes. By accepting or using the S.D.P.S. web site or Services after such notice is provided, Client agree to be bound by any such fee changes.
3.6 Client must have an account established with Contractor prior to any Services being performed. When establishing an account with Contractor, Contractor requires that a valid credit card be placed on file with Contractor us as a form of back up payment.
3.7 Client will be billed for all Services provided and all Disbursements made on Client's behalf. Client will pay all invoices in full within the standard terms stated on the invoices.
3.8 Payment for Services rendered by Contractor is non-refundable.
3.9 Payment outstanding 7 days or more beyond the terms stated in an invoice is delinquent. Should any invoice become delinquent, Contractor may charge the invoice amount to the credit card Contractor has on file for Client's account. The physical credit card need not be present with Contractor in order for the charge to the card to be valid, and Client will not to dispute the validity of any such charge on that basis.
3.10 All payment transactions are conducted electronically.
3.11 Client is liable for payment of all invoices. Client may have a third party pay an invoice directly to Contractor. However, it is understood that Contractor has no relationship with such third parties and has no obligation to collect from them. The payment obligation rests solely with Client, and Contractor will hold Client liable for payment of any invoice submitted to a third party for payment.
3.12 In any matter arising out of a failure by Client to timely pay any invoice, Contractor is entitled to payment by Client of Contractor's reasonable attorneys fees and costs.ARTICLE FOURConfidentiality and Non-Disclosure
Subject and in addition to the provisions of Article One, the parties agree to maintain the confidentiality of this Agreement and of all matters related to the Controversies, as follows:
4.1 Duty of Confidentiality. All information related to this Agreement, and transmitted to any party to this Agreement or any agent thereof, ("Recipient"), and all information related to the Controversies shall be deemed Confidential Information The Confidential Information shall not be used in any way directly or indirectly detrimental to the Parties of the First Part Such information will be kept confidential by the Party of the Second Part. The Party of the Second Part agrees to be responsible for any breach of this agreement by her family, employees, agents, principals and legal counsel.
a. Definitions. In addition to the terms set forth above, the term "Confidential Information" includes all information and material provided to the Recipient by the Disclosing Party or the Disclosing Party's agents in connection with the Controversies or this Agreement. Confidential Information does not include any information which at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of a disclosure directly or indirectly by the Recipient or its agents), or (ii) was available to the undersigned on a non-confidential basis from any source other than the Disclosing Party or its agents and advisors, provided that such source is not also bound by a confidentiality agreement with the Disclosing Party.
b. Legally Compelled or Required Disclosure. In the event that the Recipient or anyone to whom the Recipient duly discloses Confidential Information is required or requested to disclose any Confidential Information by any applicable law or regulation or at the direction of any court or of any governmental or regulatory body having authority to regulate or oversee any aspect of the Recipient's business or that of its subsidiaries or affiliates in connection with the exercise of such authority and the Recipient or the person or entity to which it duly disclosed Confidential Information provides or discloses such Confidential Information pursuant to such requirement or request, the Recipient shall not be in breach of its undertakings herein, but will endeavor to provide the Disclosing Party with prior notice of its intent to provide or disclose such Confidential Information to the court or governmental or regulatory body concerned.
4.2 The provisions of this Article Four shall be deemed to be in addition to, and as supplementation to, the provisions set out in Article One above. Nothing in this Article shall be deemed to limit, modify, affect, compromise, or change any of the provisions of Article One, which are adopted and incorporated herein, and which are deemed in the event of any conflict to supersede and control any provision of this Article.ARTICLE FIVEAdditional Provisions
5.1 Notices. Any notice required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when it shall have been delivered by both facsimile transmission and by electronic mail to the Party to which it is required to be given, at such Party's electronic addresses specified below, or by certified mail, return receipt requested, at the addresses below, or at such other address as the Party shall have specified in writing to the Party giving such notice.
ContractorSame Day Process Service Inc.Att: Mr. Brandon Snesko1413 K Street NW, 7th FloorWashington, DC 20005Tel: 202-812-8016E-mail: Brandon@samedayprocess.com
5.2 Arbitration. Any and all disputes arising out of or relating to this Agreement (including any Annex) shall be finally and exclusively settled through final and binding arbitration. In the event of any dispute between the parties arising out of or related to this Agreement (a "Dispute"), the Dispute shall be submitted to binding and final arbitration, in the following manner and according to the following procedures.
(a) A party to this Agreement shall provide written notice of the existence of a Dispute and a demand for the commencement of Dispute Resolution ("the Initial Dispute Notice"). The parties shall thereupon attempt to resolve the Dispute amicably for a period of thirty (30) days (the "Negotiation Period"). Nothing herein shall require either party to offer to modify, alter, adjust, increase or reduce its claims or rights under the Agreement.
(b) In the event that the Dispute is not resolved during the Negotiation Period, either party may issue to the other party a "Demand for Arbitration."
(c) Within thirty (30) days of the delivery of a Demand for Arbitration, the parties shall select an Arbitrator. The Arbitrator shall not be affiliated with, or have been affiliated with either party. Each party shall bear the costs and the fees of its Appointing Representative.
(d) There shall be one arbitrator.
(e) The venue shall be Washington, DC.
(f) The language shall be English.
(g) The arbitrator shall apply the law of the District of Columbia.
(h) Each party shall bear its own attorneys fees. All other fees, including filing fees, administrative fees, and the fees of the arbitrator, shall be divided evenly between the parties.
Except to the extent that this Agreement provides otherwise, the parties and the Arbitrator shall apply and be bound by Section III (Arbitral Proceedings) and Section IV (the Award) of the UNCITRAL Arbitration Rules (1978).
(j) Any award shall be subject to the Convention on the Recognition and the Enforcement of Foreign Arbitral Awards.
(k) Each party submits to the jurisdiction of all courts in Washington, DC for purposes of enforcement of this arbitration provision.
(l) Each Party EXPRESSLY WAIVES THE RIGHT TO A JURY TRIAL ON ANY CLAIM ARISING OUT OF THIS AGREEMENT.
5.3 No Assignment; Amendments.
(a) Unless otherwise agreed in writing, this Agreement and any rights and duties hereunder (including any Annex) shall not be assignable.
(b) Any amendment to this Agreement shall be in writing and signed by both Parties.
(c) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators and executors, provided that such heirs, administrators and executors agree to be bound by the terms hereof. This Agreement contains the entire agreement between the parties hereto and there are no promises, agreements, conditions, undertakings, warranties or representations, oral or written, express or implied, between them other than as herein expressly contained or referred to.
5.4 Compliance with Law A party to this Agreement through or by its agents, employees, or otherwise (1) shall refrain from taking any action in violation of any applicable provisions of the laws of the United States or applicable laws of the local jurisdiction in which the services are rendered that are not inconsistent with U.S. or local law, and (2) shall refrain from taking any action that would cause Contractor or Client to be in violation of any U.S. or applicable law.
5.5 Counterparts. This Agreement may be signed in separate counterparts (including by telecopy), each of which will be deemed an original and all of which together will constitute one and the same agreement.
5.6 Governing Law. This Agreement shall be deemed made in Washington, DC and shall be governed by and construed in accordance with the laws of Washington, DC.
5.7 Effective Date. This Agreement shall be effective as of the date of the last signature appearing below.
5.8 Survival of Provisions The obligations of the Parties with respect to confidentiality, and non-disclosure survive and extend beyond the termination of this Agreement.
5.9 Independent Contractors. Contractor and Client are independent contractors with respect to each other. Neither Party is an employee, agent, representative, broker, or partner of the other. This Agreement shall not be construed to create an association, joint venture, or partnership between the parties.
5.10 Force Majeure Contractor shall not be responsible for delays or failure in performance resulting from acts beyond its reasonable control. Such acts shall include but not be limited to acts of God, war, riot, actual or threatened acts of terrorism, labor stoppages, governmental actions, fires, storms, floods, utility failures and earthquakes.
5.11 Third Party Rights The provisions in this Agreement are for the sole benefit of the Parties and the assigns of Contractor. and shall not inure to the benefit of any other person either as a third party beneficiary or otherwise.
5.12 Severability If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, the unenforceability of any provision shall not affect the enforceability of any other provision of this Agreement.
5.13 Waiver The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of the right of such party to assert or rely upon such provision or right in any other instance. No waiver of any of the provisions of this Agreement shall be valid unless in writing and signed by the parties against whom it is ought to be enforced.
5.14 Limitations on Liability and Damages To the fullest extent allowed by applicable law, Contractor will not be liable to Client, its successors, agents, heirs or assigns, and/or any other person or entity for general, special, incidental, consequential, indirect, exemplary or punitive damages of any kind, including, but not limited to, those damages resulting from loss of use, data, sales, goodwill, or profits, failure to meet any duty (including good faith or reasonable care) whether or not Contractor has been advised of the possibility, or under any legal or equitable theory of liability, including theories of tort, contract, or otherwise arising out of the use of the Contractor's web site or Services or the termination of Client's use of Contractor's web site and Services.
CLIENT EXPRESSLY AGREES AND ACKNOWLEDGES THAT CONTRACTOR SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO ANY ACTIONS OR OMISSIONS BY ANY COURT AND/OR OTHER GOVERNMENT AGENCIES WITH WHOM CONTRACTOR INTERACTS IN CONNECTION WITH THE SERVICES. IN PARTICULAR, COMTRACTOR SHALL HAVE NO LIABILITY WITH RESPECT TO ANY COURT AND/OR GOVERNMENT AGENCY'S FAILURE TO PROPERLY OR TIMELY RECEIVE, FILE OR PROCESS ANY DOCUMENTS OR OTHER MATERIALS TRANSMITTED BY CONTRACTOR ON CLIENT'S BEHALF.
CONTRACTOR SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND RESULTING FROM CLIENT'S USE OF CONTRACTOR'S WEB SITE, THE CONTENT, THE COMMENTS, THE INTERACTIVE AREAS, ANY FACTS OR OPINIONS APPEARING ON OR THROUGH AN INTERACTIVE AREA OR ANY THIRD PARTY COMMUNICATIONS. CONTRACTOR SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE SERVICES OR USE OF OR INABILITY TO USE THE WEB SITE, THE INTERACTIVE AREAS, THE CONTENT, THE COMMENTS, OR ANY THIRD PARTY COMMUNICATIONS.
Thank you much for your business and continued business!Brandon Snesko, President