Terms of Service.
Crossroads Mail Hold Co, LLC (d/b/a Direct One) – General Terms and Conditions of Service
1. GENERAL. The sale by Crossroads Mail Hold Co, LLC (d/b/a Direct One), a Florida limited liability company (“Direct One”), of the goods and services set forth on the attached quote (the “Product”) is subject to the terms set forth below (this “Contract”). The terms and conditions of this Contract are deemed accepted and agreed to upon the acceptance of the applicable quote, shall not be superseded by any other terms or conditions in the quote or other documents of the purchaser of the Product (“Buyer”), and are deemed applicable to all future engagements, transactions, and activities between Direct One and Buyer. This Contract merges and supersedes all prior negotiations or agreements of Direct One and Buyer (the “Parties” and each a “Party”), either written or oral, made either prior to or contemporaneous with this Contract. This Contract cannot be modified or amended except by a subsequent written instrument executed by the Parties which expressly supersedes the provisions of this Contract. This Contract, together with all quotes, attachments, exhibits and schedules thereto, constitutes the complete and final agreement between Buyer and Direct One. Any additional or different terms provided by Buyer in subsequent documents shall not be binding. The rights and obligations under Sections 3 through 17 will survive the cancellation, termination or expiration of this Contract.
2. PRICING; SCOPE OF SERVICES; TERMS OF PAYMENT. Pricing terms are valid for forty-five (45) days from the date of the attached quote and are subject to change if the Product’s project requirements and/or quantities are other than currently specified (the “Pricing Terms”). Pricing Terms for the Product are based on the assumption that Direct One will receive one data file from Buyer per project. Data received in multiple formats or files from the Buyer may result in additional charges. Direct One will only apply the Buyer’s requested name and address information to mail pieces unless otherwise specified. Material shortages will be subject to additional setup charges to be applied to invoices. Once Buyer gives Direct One final approval to print mail pieces, Direct One shall no longer be liable for the project accuracy of the Product so long as the final shipped Product is identical to what is approved by Buyer. Payment by Buyer for: (a) the Product; and (b) the estimated postage required prior to delivery of material to the United States Postal Service is net thirty (30) days from the date of invoice by Direct One (the “Due Date”). If payment is not received by Direct One from Buyer within thirty (30) days after the Due Date, Buyer shall be deemed to be in default and the respective invoice shall be considered past due. Past due payments will be subject to a service charge of five percent (5%) per month, or the maximum amount allowed by law, whichever is less. Any right of retention or offset of Buyer shall be excluded.
3. BUYER’S HANDLING OF PRODUCT. Unless otherwise agreed in writing between the Parties, Buyer assumes all risks and liability, and Direct One assumes no risk and no liability, with respect to unloading and discharge of the Product, storage, handling, sales and use of the Product, and the compliance or noncompliance with all federal and local laws and regulations with respect thereto.
4. NO WARRANTIES; LIMITATION OF LIABILITY; REMEDIES; DAMAGES. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE PRODUCT IS BEING OFFERED FOR SALE FROM DIRECT ONE TO BUYER IN “AS IS, WHERE IS” CONDITION, WITH NO EXPRESS OR IMPLIED WARRANTIES. DIRECT ONE MAKES NO EXPRESS OR IMPLIED WARRANTY THAT THE PRODUCT SOLD HEREUDER IS NON-INFRINGING, IS OF MERCHANTABLE QUALITY, OR IS FIT FOR ANY PARTICULAR PURPOSE. THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE. DIRECT ONE SHALL NOT BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT, THIS CONTRACT, OR ANY BREACH THEREOF. DIRECT ONE’S LIABILITY SHALL BE FURTHER LIMITED TO THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT.
5. INTELLECTUAL PROPERTY OWNERSHIP. As between the Parties, each Party is and will remain the sole and exclusive owner of all right, title and interest in and to such Party’s Background IP (as defined below). Subject to the conditions, restrictions and limitations set forth in this Contract, Buyer hereby grants to Direct One a worldwide, nonexclusive, royalty-free, nontransferable, non-sublicenseable license, under all Intellectual Property Rights to the Background IP that it provides to Direct One pursuant to this Contract, solely to the extent required for Direct One to perform its obligations under this Contract and solely for the purposes set forth in this Contract. The Parties do not intend to jointly develop or create any Intellectual Property Rights under or in connection with this Agreement. “Background IP” means any intellectual property invented, conceived, authored, created, developed, discovered and/or reduced to practice by a Party—or otherwise owned, licensed, or controlled by a Party (including its affiliates)—at any time. “Intellectual Property Rights” means all intellectual property rights worldwide, existing under statute or at common law or equity, in force or recognized now or in the future, including copyrights, trade secrets, trademarks, service marks, patents, rights in inventions, rights in designs, logos, trade dress, moral rights, mask works rights, and any application or right to apply for any of the foregoing rights, and all renewals, extensions and restorations.
6. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Direct One, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Direct One to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Direct One in writing. Upon Direct One’s request, Buyer shall promptly return all documents and other materials received from Direct One. Direct One shall be entitled to injunctive relief for any violation of this Section.
7. INDEMNITY. Buyer shall defend, indemnify and hold Direct One harmless from and against all damages, causes of action (including attorneys’ fees), claims, losses, liabilities, penalties, personal injuries (including death), environmental damages and tangible property damage caused by Buyer’s negligence, strict liability, breach of warranty, breach of this Contract, fault, omissions or willful conduct arising, without limitation, from the handling, transportation, modification, storage or use of the Product.
8. TAXES. All payments under this Contract are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Buyer regardless of which Party such taxes are imposed upon (with the exception of any taxes computed with regard to Direct One’s income). In the event Buyer is required by law to withhold taxes, Buyer agrees to furnish Direct One all required receipts and documentation substantiating such payment. If Direct One is required by law to remit any tax or governmental charge on behalf of or for the account of Buyer, Buyer agrees to reimburse Direct One within fifteen (15) days after Direct One notifies Buyer in writing of such remittance. Buyer agrees to provide Direct One with valid tax exemption certificates in advance of any remittance otherwise required to be made by Direct One on behalf of or for the account of Buyer, where such certificates are applicable.
9. LIMITATION OF ACTIONS. Notwithstanding anything in this Contract to the contrary, any action for Direct One’s breach of this Contract must be commenced by Buyer within six (6) months after the cause of action accrues, and no such action may be maintained which is not commenced within such period.
10. FORCE MAJEURE. Neither Party shall be liable for its failure to perform hereunder if due to any event beyond the reasonable control of the Party affected, including but not limited to acts of God, war, fire, epidemics or pandemics, bad weather, flood, accident, labor trouble or shortage, terrorism, civil disturbance, plant shutdown, equipment failure, voluntary or involuntary compliance with any applicable governmental regulation or order, or shortage or inability to obtain (on terms deemed reasonable by the Party affected) any raw material (including energy), equipment or transportation, which materially impairs such Party’s ability to so perform. Any quantities not delivered or accepted because of any such event shall be eliminated from the Contract without liability. Direct One shall not be obligated to perform under the Contract anywhere other than the production or shipping points designated herein and shall not be obligated to rebuild or repair any damage or destruction to such production or shipping points in order to fulfill this Contract. Direct One shall also not be obligated to obtain any raw materials or Product from sources other than its usual sources. During any period when Direct One is unable to supply the Contract’s required Product, whether caused by the circumstances above or otherwise, Direct One may allocate any available Product, among its customers, including its own subsidiaries, divisions and departments, on such basis as Direct One deems fair and reasonable, and its failure, partial or otherwise, to make deliveries to or for Buyer shall not be a breach of this Contract.
11. TERMINATION OF CONTRACT. Should Direct One for any reason elect to suspend its offering of the Product which is the subject of this Contract, or curtail performance relating to the Product in consequence of the application of any governmental regulation or order which will, in the reasonable judgment of Direct One, render the production, marketing or transportation of the Product economically, technically or commercially impracticable, Direct One may terminate this Contract upon thirty (30) days prior written notice to Buyer.
12. ASSIGNMENT. This Contract and the rights and obligations of Buyer hereunder shall not be assignable by Buyer, either by act of Buyer or by operation of law, without the prior written consent of Direct One, and shall not be deemed an asset of Buyer in, and at the option of Direct One shall terminate in the event of, the commencement of any case or proceeding in respect of Buyer under any bankruptcy, insolvency or similar law or any assignment for the benefit of creditors. At the option of Direct One, this Contract shall terminate in the event of the insolvency of Buyer. Any purported assignment of this Contract without the prior written consent of Direct One shall be null and void. This Contract is for the sole benefit of the Parties and their respective heirs, personal representatives, successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Contract.
13. RELATIONSHIP OF PARTIES. This Contract does not create an association, partnership, joint venture, trust, agency, or other relationship between any of the Parties, notwithstanding any use of the word “partner,” “partnership,” or similar terms in this Agreement and/or in connection with this Agreement. Neither Party will have the right, power, or authority to obligate or bind the other in any manner whatsoever without such other’s prior written consent. Each Party will be responsible with respect to its own employees, contractors and/or subcontractors, including for all applicable taxes, benefits, and other obligations.
14. GOVERNING LAW. This Contract shall be construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this Contract or the matters contemplated hereunder shall be instituted exclusively in the state courts within the State of Florida, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens.
15. SEVERABILITY. If any provision of this Contract is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
16. NON-WAIVER. Direct One’s waiver of any breach or failure to enforce any of the terms or conditions of this Contract at any time shall not in any way affect, limit or waive its right thereafter to enforce strict compliance with every term and condition hereof.
17. NOTICES. All notices, requests, consents, demands and other communications to be given or delivered under or by reason of the provisions of this Contract shall be in writing and shall be: (a) personally delivered (including courier); or (b) sent by overnight mail with proof of delivery, and shall be deemed to have been duly given when received. Notice to either Party shall be sent to its address set forth in the applicable quote and to the attention of its Corporate Secretary. Notices given to Direct One shall also be sent to the attention of the Chief Executive Officer.