TERMS AND CONDITIONS
Information Management & Securities, LLC d.b.a. IMS Technology Group
STANDARD TERMS AND CONDITIONS
Information Management & Securities, LLC (d.b.a. IMS Technology Group) (Company) (facility located at 4720 East Liberty Street, Mexico, Missouri 65265) hereby agrees to provide the services described in these standard terms and conditions and in the schedules and attachments hereto (all together, this “Agreement") as ______ (Client) requests, subject to all terms and conditions herein, including those incorporated as schedules and attachments hereto, from and after this date hereof ____________________ (Effective Date). Unless modified by specific provisions set forth in a Service Schedule signed by both parties, the following terms and conditions shall apply to this Agreement.
ARTICLE 1 — GENERAL TERMS AND CONDITIONS
1.1 GENERAL – The provisions of this Article 1—General Terms and Conditions—shall apply to all services provided by Company to Client. The provisions of Article 2 shall apply to the specific service described therein. From and after the Effective Date, Company may provide one or more service schedules describing certain services to be provided by Company and the fees for such services (each a “Service Schedule". These Service Schedules may be provided to Client prior to the Effective Date in the form of a proposal of service. Company shall provide the services identified on the Service Schedule. Any additional services not listed on a Service Schedule shall, unless otherwise agreed in writing, be deemed to be held under the terms of this Agreement and invoiced at Company’s current rates. Transportation surcharges may apply when the average price of diesel fuel, as measured by www.missourigasprices.com for Mexico, MO, is $3.25 or more per gallon. Unless otherwise agreed in writing by Company and Client, Company, at its sole discretion, shall be entitled to utilize a third party to provide some or all of the services hereunder. For purposes of compliance audit, but not more than annually, client may request in writing a list of third parties utilized by Company to provide services.
1.2 RATES – Client agrees to pay Company for its services according to the fees set forth in the applicable signed proposal between Company and Client. Rates may be changed by Company upon thirty (30) days’ notice to the Client. All invoices issued under this Agreement are due within thirty (30) calendar days following the invoice date. If Client fails to pay any invoice in full by the due date, Client shall be liable for interest which will accrue at the rate of nine percent (9%) per annum (or such lesser rate as may be the highest legally permissible rate under the laws of the jurisdiction governing this Agreement), and Client shall also be liable for all expenses incurred in collecting charges which are in arrears, including reasonable attorneys’ fees and costs. If Company should neglect to promptly charge for any service, Client shall remain responsible for such charge(s) and pay them promptly upon notification. Reference Exhibit A, Uniform Commercial Code 400.7-202.
1.3 TERM – Unless sooner terminated as provided herein, the term of this Agreement shall commence on the Effective Date and continue until an Authorized Representative gives Company reasonable (not less than 60 days) advance written notice of a termination date. In the case of any items being stored for Client, an address for delivery of any Client materials accepted for storage during the image capture process by the Company (“Stored Material") shall be provided. In the event that Company continues to store any of Client’s Stored Materials after termination, the terms of this Agreement shall continue to apply until all of Client’s Stored Materials have been removed from Company’s facilities. Upon termination, any services performed including but not limited to retrieval, permanent withdrawal, delivery or destruction of the Stored Materials shall be paid by Client as set forth in the Service Schedule and shall be paid by certified check prior to or concurrently with the performance of such services.
1.4.1 The occurrence of any one or more of the following events by Client shall constitute a default (“Event of Default”):
- Failure to pay any sum due hereunder within fifteen (15) days of when due; or
- Material breach of any provision of this Agreement; or
- Client becomes insolvent or files, or has filed against it, any proceeding in federal or state court seeking debtor relief; or
- Client fails to cooperate with Company in a manner that substantially hinders Company from providing its services under this Agreement.
1.4.2 Upon the occurrence of an Event of Default, Company, at its sole option, may exercise any or all of the following remedies:
- Demand payment in advance by certified check, cashier’s check, credit card, money order, or wire transfer prior to the performance of any services on behalf of the Client.
- Demand in writing that Client pick up the Stored Material; or
- Deliver any Stored Material to the Client’s then-current delivery address, or, if none is specified, to the Client’s main office address.
- Upon thirty (30) days advance written notice to Client, Company may dispose of Stored Material. (In this regard, Client recognizes that, since the Stored Material has little or no market value, the sale of the material would be impossible, and disposal of Client materials is the only way for the Company to mitigate its damages.)
- Terminate this Agreement, whereupon Company shall recover all damages suffered by reason of such termination, including reasonable attorneys’ fees and expenses.
1.4.3 In the event Company takes any action pursuant to this Section, it shall have no liability to Client or anyone claiming through Client. The exercise by Company of any one or more of the remedies provided in this Agreement shall not prevent the subsequent exercise by Company of any one or more of the other remedies herein provided. All remedies provided for in this Agreement are cumulative and may, at the election of Company, be exercised alternatively, successively or in any other manner and are in addition to any of the rights provided by law. Company shall be entitled to include all reasonable attorneys’ fees and costs incurred in connection with the enforcement of this Agreement.
1.5 TITLE AND AUTHORITY – Client represents and warrants that it is the owner or legal custodian of the Stored Material and has full authority to tender to the Company for imaging the Stored Material in accordance with the terms of this Agreement. In addition, Client represents and warrants that it has full authority to order all services to be provided by Company under this Agreement. Reference attached Exhibit A, Uniform Commercial Code 400.7-202.
1.6 INDEMNIFICATION – Unless caused solely by the gross negligence or willful misconduct of Company, Client agrees to fully indemnify and hold harmless Company, its affiliated companies and its and their officers, employees and agents for any liability, cost or expense, including reasonable attorneys’ fees and costs, that Company may suffer or incur as a result of claims, demands, costs or judgments arising out of its relations with Client or third parties pursuant to this Agreement.
- Client agrees to comply with the standard operating procedures of Company, as modified from time to time, regarding boxes or cartons, box or carton integrity, delivery/pickup volumes, preparation for pickup, security, secure shredding protocols, access and similar matters. Extraordinary requests may involve additional costs.
- Client shall not, at any time, store with Company as part of the image capture process, any narcotics, materials considered to be highly flammable, explosive, toxic, radioactive, organic material which may attract vermin or insects, any matter regulated by federal or state law or regulation relating to the environment or hazardous materials, or any other materials which are otherwise illegal, dangerous and unsafe to store or handle in an enclosed area. Company reserves the right to open and inspect any materials tendered for storage and scanning, and refuse acceptance of any materials, which fail to comply with the Company’s restrictions and guidelines. Client shall not store negotiable instruments, jewelry, check stock, ticket stock or other items, which have intrinsic market value.
- Unless Company is contracted by Client to fully inventory the contents of all Stored Materials, Company shall not be liable for loss of goods due to inventory shortage or unexplained or mysterious disappearance of goods; and Company shall not be liable for such loss unless Client establishes such loss occurred solely because of Company’s failure to exercise the standard of care set forth in Section 1.8, below.
- Unless otherwise agreed in writing, Client is responsible for the pre-approved packaging of all Stored Materials for transportation. Company shall not be required to accept for transportation any item that, in its opinion, is not properly packaged or adequately protected, or may, at Client’s expense, replace damaged containers that, in the judgment of Company, can no longer protect the contents or maintain the safety and confidentiality of Client information contained therein.
- Unless otherwise specified in this agreement, access requests for documents shall be satisfied by digital conversion and delivery via secure electronic means. All requests must be made in writing by authorized personnel of Client through Company website: com.
- Itemized lists or descriptions of contents of materials submitted by Client to Company shall be considered for Client’s record keeping, reconciliation and reference purposes only, and shall not be considered proof that any documents contained on such lists or descriptions are in fact contained in the materials accepted by Company.
- In the course of providing some services, Company may provide equipment to be used by Client. Client agrees to compensate Company for any damage or replacement of any Company equipment not returned to Company in good condition.
- Unless specified elsewhere in this agreement, Client shall provide Company with thirty (30) days prior written notice of any material change in Client’s service requirements, including, without limitation, Stored Material quantities or transportation arrangements. Material shall mean a change impacting more than 10% of client assets.
- All access to Company facilities shall be subject to Company’s security procedures, which may be amended by Company from time to time.
Reference attached Exhibit A, Uniform Commercial Code 400.7-202.
1.8 CONFIDENTIALITY – Company shall exercise the same standard of care in safeguarding Stored Materials that a reasonably careful person would exercise under like circumstances but unless otherwise agreed is not liable for damages that could not have been avoided by the exercise of such care. Company may comply with any subpoena or similar order related to the Stored Materials, provided that Company notifies Client promptly upon receipt thereof, unless such notice is prohibited by law. Client shall pay Company’s reasonable charges, including attorneys’ fees and costs, for such compliance.
1.9 ACCESS TO STORED MATERIALS
- Stored Material shall be delivered (in person or via electronic transmission) only at the direction of one of Client’s representatives authorized by Client (“Authorized Representatives"). Client represents that the Authorized Representatives have full authority to order services for the Stored Material consistent with their level of authorization on Company’s authorization form. Client shall be entitled to amend its list of Authorized Representatives upon written notice to Company. Such order may be given via telephone, electronically, fax, in writing or in person.
- If Client does not provide Company with a list of Authorized Representatives or if Client fails to update its list of Authorized Representatives in a timely manner, Company shall be entitled to follow any instructions pertaining to the Stored Material that are provided by an individual whom Company reasonably believes to be employed by or acting on behalf of Client.
- When any Stored Material is requested by Client, a reasonable time shall be given to Company to carry out said instructions and, if it is unable to do so (or to provide any other service herein contemplated) because of acts of God or public enemy, seizure or legal process, strikes, lockouts, riots and civil commotions, or other reason beyond Company’s control, or because of loss or destruction of goods for which Company is not liable, or because of any other excuse provided by law, Company shall not be liable for failure to carry out such instructions or services.
- Company reserves the right to deny access to or delivery of Stored Material and/or to withhold performance of any services hereunder until such time as Client has cured any Event of Default under this Agreement.
- Authorized Representatives of Client shall have the right at reasonable times and upon reasonable prior written notice, but not more than once per year, to examine the Stored Material and records of Company which pertain to the performance of the provisions of the Agreement.
- Customer represents and warrants to Company that none of the Stored Materials require protection from access by foreign persons because they contain technical information regarding defense articles or defense services within the meaning of the International Traffic in Arms Regulations (22 CFR 120) or technical data within the meaning of the Export Administration Regulations (15 CFR 730-774). If any Stored Materials do contain such information, Customer shall notify Company of the specific Stored Materials that contain such information and acknowledges that special storage and service rates shall apply thereto.
- Company shall not be liable for damage to Client materials in transit, or to items, which may receive sudden and accidental damage, pursuant to the standard of care set forth in Section 1.8, above.
Reference attached Exhibit A, Uniform Commercial Code 400.7-202.
1.10 LIMITATIONS OF LIABILITY
Value of Deposits. Customer declares and represents to Company, for purposes of this Agreement, that with respect to hard-copy (paper) records, microfilm and microfiche stored pursuant to this Agreement, based on the standard industry practice and the Uniform Commercial Code pertaining to Warehouse’s Liability, such items have no monetary value. Reference attached Exhibit A, Uniform Commercial Code 400.7-202.
IMS Technology Group is not responsible for the contents of the stored box or carton, other than the box or carton itself. If Client wishes to have their stored boxes insured at a higher value, Client must contact their insurance provider and obtain a rider to their policy to cover the additional insurance. Reference attached Exhibit B, Uniform Commercial Code 400.7-204.
Client Initial ________
Limitation of Liability. Subject to the limitations set forth in this section 1.10, Company’s liability, if any, for loss or destruction of, or damage to, Stored Material (as defined herein) is limited to the value of each deposit as described above, or as otherwise set forth herein. Other limitations on Company’s liability to Client are set forth in the following provisions of this Agreement.
Company shall not be liable for any loss or damage to Stored Material or in connection with the performance of any services hereunder, however caused, unless such loss, damage or claim resulted from the failure by Company to exercise such care in regard thereto as a reasonably careful person would exercise in like circumstances. Company is not responsible for the repair, replacement or restoration of lost or damaged property, subject to the conditions and limitations imposed by this Agreement. Company’s liability, if any, with respect to the specific Company services provided under a Service Schedule OR RELATED TO A SPECIFIC SERVICE PROVIDED BY COMPANY TO CLIENT is limited as set forth in this Section 1.10 and the respective Article below pertaining to such service. In the event of a conflict between the provisions of Article 2 and this Section 1.10, the terms of THIS SECTION 1.10 shall control.
Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Company’s liability to Client for any and all claims asserted against Company, whether arising out or contract, tort, statute or otherwise, exceed THE LESSER OF two thousand five hundred dollars ($2,500.00) or ONE DOLLAR [$1] U.S. PER CARTON. Company shall not be liable for any loss of profit or special, indirect, incidental, punitive or consequential damages of any kind, including without limitation LOST PROFITS, LOSS OF USE, DATA/INFORMATION BREACH NOTIFICATION REQUIREMENTS TO THIRD PARTIES UNDER STATE AND/OR FEDERAL LAW, LOST DATA/INFORMATION, AND RECONSTRUCTION, REGARDLESS OF THE FORM OF THE CLAIM AND REGARDLESS OF WHETHER ANY SUCH DAMAGES WERE FORESEEABLE. CLIENT SHALL CAUSE ITS INSURERS OF STORED MATERIAL TO WAIVE ANY RIGHT OF SUBROGATION AGAINST COMPANY.
Client Initial _______
Stored Materials are not insured by Company against loss or injury, however caused. Claims by Client for loss, damage, or destruction must be presented in writing to Company within a reasonable time and in no event longer than sixty (60) days after Client is notified by Company or otherwise receives notice that such loss, damage or destruction has occurred, whichever time is shorter. No action or suit may be maintained by Client or others against Company, unless a timely written claim has been submitted by Client to Company, and unless such action or suit is commenced either within nine (9) months after date of delivery or return by Company of the applicable Stored Material, or within nine (9) months after Client is notified or otherwise receives notice of the events that give rise to Client’s claim, whichever is shorter.
1.12 ARBITRATION SOLE REMEDY – As to any dispute or controversy which under the terms hereof is hereby made subject to arbitration, no suit at law or in equity based on such dispute or controversy shall be instituted by either party hereto, other than to enforce the award of the arbitrators.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator(s) may be entered in any Court having jurisdiction thereof.
1.13 FORCE MAJEURE – Neither Party will be held responsible for delays in the performance of its obligations hereunder (other than the obligation to pay money) when caused by strikes, lockouts, labor disputes, acts of God, epidemics or pandemics, inability to obtain labor or materials or reasonable substitutes therefor, governmental restrictions, governmental regulations, governmental controls, delay in issuance of permits, enemy or hostile governmental action, civil commotion, fire or other casualty, and other circumstances or causes beyond the reasonable control of the parties.
1.14 MISCELLANEOUS – This instrument (together with any Service Schedules, proposals of service, and other schedules attached and documents incorporated herein) constitutes the entire agreement between the parties, and supersedes any and all prior agreements, arrangements, understandings, and representations, whether oral or written, between the parties. Each party agrees that its rights and obligations under this Agreement may not be assigned or otherwise transferred to a Third Party without the prior written consent of the other Party hereto. Notwithstanding the foregoing, either Party may transfer or assign its rights and obligations under this Agreement to (a) an Affiliate, subject to the prior notice to the other Party and the assigning Party remaining responsible for such Affiliate’s performance or (b) a successor to all or substantially all of its business or assets relating to this Agreement whether by sale, merger, operation of law or otherwise, without the prior written consent of the other Party; provided that such assignee or transferee has agreed to be bound by the terms and conditions of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns. Except as otherwise provided in this Agreement, no modification of this Agreement shall be binding on a party unless in writing, attached hereto, and signed by the party against which it is sought to be enforced. In the event of any conflict between the terms of this Agreement and any subsequent document signed by the parties, the parties intend for the terms of this Agreement to control unless such subsequent document specifically makes reference to amending the terms of this Agreement. No waiver of any right or remedy shall be effective unless in writing and nevertheless, shall not operate as a waiver of any other right or remedy on a future occasion. Every provision of this Agreement is intended to be severable. If any term or provision is illegal, invalid or unenforceable, there shall be added automatically as part of this Agreement, a provision as similar in terms as necessary to render such provision legal, valid and enforceable. This Agreement shall be constructed in accordance with the laws of Missouri without giving effect to its conflict of laws or principles. In addition, Company shall have, and may exercise, all rights granted to a warehouseman by the Uniform Commercial Code as adopted in Missouri. All notices under this Agreement shall be in writing. Unless delivered personally, all notices shall be addressed to the appropriate addresses noted herein, or as otherwise noted in writing in accordance with this provision. Notices shall be effective upon receipt unless mailed by certified or registered mail, in which event notices shall be deemed to have been received as of the third business day after the date of posting. All words and phrases in this Agreement shall be construed to include the singular or plural number, and the masculine, feminine or neuter gender, as the context requires. Nothing in this Agreement shall be deemed or construed to constitute or create a partnership, association, joint venture, agency or fiduciary relationship between the parties hereto.
ARTICLE 2 — IMAGING SERVICES
2.1 SCOPE – The provisions of this Article 2 apply to any imaging services provided by Company to Client.
2.2 GENERAL – Company agrees to provide electronic/digital imaging services to Client and an application on which Client may view their digital collections. Company will provide digital images to Client at pricing levels specified in the Service Schedule. Company will maintain Client’s digital collections on Company’s server for a period of ninety (90) days. At the expiration of ninety (90) days, Client’s digital collections will be deleted from Company’s server without further notice.
2.2.A ORDINARY WEAR DURING CONVERSION – Client agrees Company is not liable for any of the following: (a) minor wear or damage to documents while preparing documents for the imaging process, including but not limited to wear or damage caused by removal of staples, paperclips, binders, or any other type of fastening device, or the unfolding of documents as required to enable such items to be fed through an automatic document feeder (“ADF") or to fit on a flatbed scanner; or (b) minor wear or damage to documents during the imaging process, including but not limited to any wear or damage documents may experience while moving through an ADF.
2.2.B SCAN ON DEMAND – Utilization of scan-on-demand will allow Client to view, store and organize its files for a period of thirty (30) days. After thirty (30) days or the end of the month, whichever is shorter, all Client files will be removed from Company’s secure site. It is the Client’s responsibility to save, print or file the records.
2.2.C SERVICE INTERRUPTION – Company shall not be responsible for system downtime or unavailability in the event utility or service providers experience a loss or downtime in the goods or services they provide Company, including but not limited to electric, natural gas, water, Internet or telecommunications.
2.3 LIMITATION OF LIABILITY – Company shall not be liable for any loss or damages as a result of Client’s installation of any software necessary to access Client’s digital images. COMPANY’S LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO ANY IMAGING SERVICE PROVIDED BY COMPANY, WHETHER ORIGINATING IN CONTRACT, TORT, STATUTE OR OTHERWISE, SHALL BE LIMITED TO THE LESSER OF .10 PER IMAGE OR THE PAYMENT RECEIVED BY COMPANY FROM CLIENT IN CONNECTION WITH THE SPECIFIC IMAGING SERVICES THAT GIVE RISE TO THE CLAIM.
“THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES."
IMS Technology Group
4720 East Liberty Street
Mexico, MO 65265
Exhibit A – Universal Commercial Code 400.7-202
Form of warehouse receipt–essential terms–optional terms.
400.7-202. (1) A warehouse receipt need not be in any particular form.
(2) Unless a warehouse receipt embodies within its written or printed terms each of the following, the warehouseman is liable for damages caused by the omission to a person injured thereby:
(a) the location of the warehouse where the goods are stored;
(b) the date of issue of the receipt;
(c) the consecutive number of the receipt;
(d) a statement whether the goods received will be delivered to the bearer, to a specified person, or to a specified person or his order;
(e) the rate of storage and handling charges, except that where goods are stored under a field warehousing arrangement a statement of that fact is sufficient on a nonnegotiable receipt;
(f) a description of the goods or of the packages containing them;
(g) the signature of the warehouseman, which may be made by his authorized agent;
(h) if the receipt is issued for goods of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership; and
(i) a statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien or security interest (section 400.7-209). If the precise amount of such advances made or of such liabilities incurred is, at the time of the issue of the receipt, unknown to the warehouseman or to his agent who issues it, a statement of the fact that advances have been made or liabilities incurred and the purpose thereof is sufficient.
(3) A warehouseman may insert in his receipt any other terms which are not contrary to the provisions of this chapter and do not impair his obligation of delivery (section 400.7-403) or his duty of care (section 400.7-204). Any contrary provisions shall be ineffective.
Exhibit B – Universal Commercial Code 400.7-204
Duty of care–contractual limitation of warehouseman’s liability.
400.7-204. (1) A warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable for damages which could not have been avoided by the exercise of such care.
(2) Damages may be limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in case of loss or damage, and setting forth a specific liability per article or item, or value per unit of weight, beyond which the warehouseman shall not be liable; provided, however, that such liability may on written request of the bailor at the time of signing such storage agreement or within a reasonable time after receipt of the warehouse receipt be increased on part or all of the goods thereunder, in which event increased rates may be charged based on such increased valuation but that no such increase shall be permitted contrary to a lawful limitation of liability contained in the warehouseman’s tariff, if any. No such limitation is effective with respect to the warehouseman’s liability for conversion to his own use.
(3) Reasonable provisions as to the time and manner of presenting claims and instituting actions based on the bailment may be included in the warehouse receipt or tariff.
(4) This section does not impair or repeal any existing statute of this state which imposes a higher responsibility upon the warehouseman or invalidates contractual limitations which would be permissible under this article.