|
Recall's rights pursuant to this Agreement. If the Confidential Information contains Protected Health Information (as defined by the Health Insurance Portability
<br />and Accountability Act of 1996 and implementing regulations) and the parties initial the Business Associate Addendum attached to this Agreement Recall shall
<br />adhere to the terms of such Addendum. If the Confidential Information contains Nonpublic Information (as defined by the Gramm Leach Bliley Act and
<br />implementing regulations) and the parties initial the GLIB Addendum attached to this Agreement Recall shall adhere to the terms of such Addendum.
<br />10. Subpoena of Materials. Notwithstanding anything in Section 9 or any other provision of this Agreement, if any Confidential Information is subpoenaed
<br />pursuant to an order of any court, or any other order, judgment or decree is made or entered by any court or governmental agency affecting such Confidential
<br />Information or any part thereof (collectively an "Order"), Recall is expressly authorized in its sole discretion to obey and comply with the Order, without the
<br />necessity of inquiring whether such court or agency had jurisdiction or inquiring into any other matter affecting the validity of the Order. Recall shall not be liable
<br />to Customer or any third party by reason of compliance with any Order notwithstanding that the Order may subsequently be reversed, modified or vacated.
<br />Recall will use all reasonable efforts to provide Customer with prompt written notice of the receipt of any Order to allow Customer an opportunity to protect its
<br />interest. Customer agrees to pay Recall's reasonable costs of complying with any Order.
<br />11. Limited Warranty. Recall warrants that the Services shall be provided in a professional and workmanlike manner by personnel trained with respect to
<br />such Services. EXCEPT AS PROVIDED IN THIS SECTION, RECALL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, NATURE OR
<br />DESCRIPTION, EXPRESS OR IMPLIED, WITH RESPECT TO ITS SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
<br />MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND RECALL HEREBY DISCLAIMS THE SAME.
<br />12. Events of Default.
<br />12.1Customer shall be in default under this Agreement upon the occurrence of any one or more of the following events ( "Events of Default"): (i) failure of
<br />Customer to pay when due any amounts owed hereunder and its failure to cure the same within 10 days of the date due; (ii) Customer's breach of any other
<br />provision of this Agreement, which, if capable of cure, is not cured within 30 days thereof; (iii) Customer becomes insolvent or makes any assignment for the
<br />benefit of its creditors; (iv) any proceeding is instituted by or against Customer under any bankruptcy or similar laws for the relief of debtors; or (v) the
<br />appointment of any trustee or receiver for any of Customer's assets. Upon the occurrence of any Event of Default, Recall at its sole discretion may exercise any,
<br />or any combination, of the following remedies: (A) refuse to provide further services with respect to, or provide access to, Customer Materials until the Event of
<br />Default is cured; (B) demand in writing that Customer pick up all Customer Materials at Recall's facility or facilities by a specified date, which date shall be no
<br />less than twenty (20) days after the date of such notice; (C) deliver Customer Materials to Customer at any Customer locations with reasonable prior notice
<br />thereof; (D) terminate this Agreement; and (E) such other rights and remedies as are available under applicable law, including without limitation the exercise all
<br />rights granted to warehousemen by the Uniform Commercial Code as adopted in the state where Customer Materials are stored. Recall shall have no liability to
<br />Customer or any other person for taking any actions permitted by this section. In addition to the remedies stated above, Recall shall have the right to destroy
<br />any Customer Materials remaining in its possession after Customer fails to comply with three (3) successive demands made pursuant to subsection 12.1(B)
<br />above, so long as such destruction renders such Customer Materials completely unreadable and unrestoreable. Recall shall have no liability to Customer or any
<br />other person for taking any actions permitted by this section. The exercise by Recall of any one or more of its rights under this Agreement shall not preclude
<br />Recall's exercise of any one or more of its other rights or remedies.
<br />12.2 Recall shall be in default under this Agreement upon the occurrence of any one or more of the following events which, if capable of cure, is not cured
<br />within thirty (30) days thereof ( "Recall Events of Default "): (i) Recall's loss or damage to Customer Material due to negligence of Recall, its officers, employees,
<br />agents or representatives, (ii) Recall's breach of confidentiality of Customer Materials. (iii) Recall misses, without the prior agreement of the City, the
<br />pickup /delivery schedule more than three times during the initial term of this Agreement with respect to pickup and delivery timeframes as measured on a rolling
<br />twelve (12) month basis during the Term; (iv) Recall becomes insolvent or makes any assignment for the benefit of its creditors; (v) any proceeding is instituted
<br />by or against Recall under any bankruptcy or similar laws for the relief of debtors; or (vi) the appointment of any trustee or receiver for any of Recall's assets. (vi)
<br />the sale, transfer, assignment for the benefit of Creditors or bankruptcy of Recall. Upon the occurrence of any Recall Event of Default, Customer at its sole
<br />discretion may exercise any, or any combination, of the following remedies: (A) terminate this Agreement without penalty and remove Customer Materials from
<br />Recall's possession; (B) recover all damages suffered under this Agreement, subject to Section 5 above; and (C) such other rights and remedies as are
<br />available under applicable law. The exercise by Customer of any one or more of its rights under this Agreement shall not preclude Customer's exercise of any
<br />one or more of its other rights or remedies.
<br />13. Limitation of Actions. No action, regardless of form, arising out of or in connection with this Agreement (other than an action by Recall for any amount
<br />due to Recall) may be brought more than one (1) year after the cause of action has arisen.
<br />14. Indemnification. Customer shall defend, indemnify and hold harmless Recall, its affiliates and their respective officers, directors, employees and agents
<br />against any liability, cost or expense (including court costs and reasonable attorneys' fees), irrespective of the theory on which based, directly or indirectly
<br />arising out of third party claims, demands or actions relating to (a) Recall's transportation, possession, storage or destruction of Customer Materials or (b)
<br />Customer's breach of this Agreement. Notwithstanding the foregoing, Customer's indemnity of Recall does not include an obligation for liability, cost or expense
<br />arising from Recall, its employees, agents and /or representatives' operation of any motor vehicle in the performance of Services provided to Customer
<br />hereunder.
<br />15. Force Maieure. Recall shall not be liable for any default or delay in the performance of any of its obligations under this Agreement or for the damage or
<br />destruction of any Customer Materials if caused, directly or indirectly, by fire, flood, earthquake, the elements, or other such occurrences; labor disputes, strikes
<br />or lockouts; wars, acts of terrorism, riots or civil disorder; accidents or unavoidable casualties; interruptions of or delays in transportation or communications;
<br />decisions or requirements, whether valid, invalid, formal or informal, of any government, agency, board or official; or any other cause, whether similar or
<br />dissimilar to those enumerated herein, beyond Recall's reasonable control.
<br />16. Miscellaneous. (a) Customer shall not assign all or any portion of this Agreement without the prior written consent Recall. (b) Customer has the option
<br />of paying increased fees to increase the liability of Recall in excess of the amount described in Section 5(a), but such option can be exercised only by written
<br />agreement made with Recall specifying the increased limit of Recall's liability and the increased fees to be paid by the Customer for the added liability to Recall.
<br />It shall be Customer's responsibility to pay such increased fees if it desires to exercise the option to increase the liability of Recall, and any failure by Customer
<br />to pay such increased fees shall void any election or agreement to increase the liability of Recall. (c) No failure or delay by either party to exercise any right or
<br />remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by a party preclude any further exercise
<br />thereof or the exercise of any other right or remedy. No express waiver by Recall to any breach of this Agreement shall constitute a waiver of any succeeding
<br />breach. (d) This Agreement shall be governed by the laws of the State of Georgia, without regard to its principles of conflicts of law. (e) Headings describing the
<br />contents of particular sections are inserted only for convenience and shall not be construed as a part of this Agreement. (f) This Agreement may not be modified
<br />or amended except by a separate written instrument signed by the parties. (g) If any provision of this Agreement is held by a court of competent jurisdiction to be
<br />invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect. (h) Except as otherwise provided in this Agreement, all
<br />notices under this Agreement shall be in writing and delivered personally or sent by pre -paid, first class, certified or registered air mail, return receipt requested, or by
<br />telecopy to the intended recipient at its address or telecopy number set forth above, or to such other address or telecopy number as a party may form time to time duly
<br />notify the other. (i) Those provisions which, because of the nature of the rights and obligations contained therein ought to survive termination of this Agreement
<br />shall so survive, including without limitation the following: Sections 4, 5, 9, 10, 12, 13, 14, 15, 16 and 17.
<br />17. Assignment. Recall may not assign, transfer or delegate its interest herein, or subcontract any material portion of the Services provided herein, without
<br />the prior written consent of Customer, which consent shall not be unreasonably withheld, conditioned or delayed. Any such assignment, transfer, delegation or
<br />subcontract without Customer's prior written consent shall terminate this Agreement in accordance with the provisions of Section 12.2 above. Customer, in its
<br />sole discretion, may terminate this Agreement without penalty or additional retention fees to Customer if Recall assigns its interest in violation of this Agreement;
<br />20070809 Short Form DPS Contract 2 of 6
<br />
|