|
or perform its obligations under this Agreement or upon written permission of the Disclosing Party, and (iii) upon
<br />written request of the Disclosing Party, to return or destroy such party's Confidential Information and provide written
<br />confirmation of compliance; however, the Receiving Party may retain such copies as may be necessary for legal or
<br />accounting purposes in accordance with its records retention policies. Each party agrees to cause its employees,
<br />agents, subcontractors or other persons over whom the Receiving Party has control and who require access to such
<br />information, to abide by such obligations.
<br />12.4 The foregoing obligations do not apply to information that: (i) is already public or becomes available to the public
<br />through no breach of this Agreement; or (d) was lawfully in the Receiving Party's possession before receipt from the
<br />Disclosing Party; or (iii) is lawfully received independently from a third party who is not bound by a confidentiality
<br />obligation to Disclosing Party; or (iv) is independently developed by or on behalf of the Receiving Party without use
<br />of the Disclosing Party's Confidential Information.
<br />12.5 If compelled by a requirement of a government agency, a court, or by law or discovery to disclose any of the
<br />Disclosing Party's Confidential Information, the Receiving Party will, unless prohibited by law or order, notify the
<br />Disclosing Party in writing prior to making any disclosure in order to provide the Disclosing Party a reasonable
<br />opportunity to either waive any objection to such disclosure or request a remedy from the appropriate authority. The
<br />Receiving Party will reasonably cooperate with the Disclosing Party in its efforts to obtain such a remedy. If the
<br />Disclosing Party waives its objections or is unsuccessful in its request or fails to make such a request, the Receiving
<br />Party will furnish only that portion of the Confidential Information that is legally required.
<br />13. Independent Contractor. It is expressly understood and agreed that each party will act as an independent contractor and
<br />that this Agreement is not intended and shall not be construed to create the relationship of agent, servant, employee,
<br />partnership, joint venture or other association between Client and PBPS. Neither party may make any commitments binding
<br />on the other, nor may either party make any representation that they are acting for, or on behalf of, the other, unless otherwise
<br />specified in writing and signed by the parties. Neither party nor the employees of such party performing any obligation
<br />hereunder shall be considered to be employees of the other party for any purpose, including but not limited to, compensation
<br />for services, employee welfare and pension benefits, fringe benefits of employment or workers' compensation insurance.
<br />14. Insurance. PBPS shall at all times during the tern of this Agreement maintain commercially reasonable insurance for loss
<br />from property damage, bodily injury, death, and workers' compensation claims appropriate to the services provided. PBPS
<br />will list Client as additional insured, and upon request, will provide a certificate for each insurance policy required under
<br />this Agreement.
<br />15. LIMITATION OF LIABILITY.
<br />15.1 PBPS' TOTAL LIABILITY TO CLIENT RELATING TO THIS AGREEMENT, WHETHER BASED ON
<br />CONTRACT OR TORT, UNDER LEGAL OR EQUITABLE GROUNDS, SHALL BE LIMITED TO AN
<br />AMOUNT EQUAL TO THE REASONABLE COST TO RECREATE THE AFFECTED MAIL PIECES, BUT NOT
<br />TO EXCEED $0.50 PER PIECE OF MAIL AND IN NO EVENT SHALL SUCH LIABILITY EXCEED THE
<br />LIMITS OF ANY APPLICABLE INSURANCE CARRIED BY PBPS.
<br />15.2 IN NO EVENT SHALL PBPS BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, PUNrFIVF,
<br />EXEMPLARY, STATUTORY, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER,
<br />INCLUDING BUT NOT LIMITED TO LOSS OR DEMAND AGAINST THE CLIENT BY ANY THIRD PARTY,
<br />EVEN IF PBPS HAS BEEN ADVISED OF,KNEW, OR SHOULD HAVE KNOWN THE POSSIBILITY OF SUCH
<br />DAMAGES, ARISING OUT OF, OR RELATING TO THIS AGREEMENT. CLIENT FURTHER AGREES THAT
<br />IN NO EVENT SHALL PBPS BE LIABLE FOR ANY DAMAGES OR INJURIES, INCLUDING BUT NOT
<br />LIMITED TO CLEAN-UP COSTS, RESULTING FROM OR IN CONNECTION WITH ANY HAZARDOUS
<br />SUBSTANCE, EXPLOSIVE, OTHER POLLUTANT OR SIMILAR SUBSTANCE, CONTAINED IN MAIL
<br />SUBMITTED BY CLIENT.
<br />16. Indemnification. Each party agrees to indemnify, defend, and hold harmless the other from and against any liability, loss,
<br />cost, expense, claim, or damage, including reasonable attorneys' fees, in any action or claim (collectively "Claim") brought
<br />by any third party, alleging bodily injury (including death) to the extent caused by the negligent actlomission or willful
<br />misconduct of the indemnifying party. In addition, Client shall indemnify, defend and hold harmless PBPS from all Claims
<br />by third parties, resulting from or in connection with any hazardous substance, explosive, other pollutant or similar substance
<br />contained in mail submitted by Client A party seeking indemnification must give the indemnifying party prompt written
<br />notice of any Claim and will provide reasonable cooperation in the investigation, defense or settlement of such Claim. No
<br />compromise or settlement of the Claim may be effected by the indemnifying party without the indemnified party's prior
<br />written consent (which will not be unreasonably withheld or delayed), unless (a) there is no finding or admission of any
<br />violation of law by the indemnified party, and (b) the sole relief provided is monetary damages that are paid in fitll by the
<br />indemnifying party.
<br />Proprietary and Confidential lnfonnation M25
<br />PBPS Contract Management— Rev Oct 2018
<br />
|