1. SERVICES
a. Effective on the date of the acceptance of this Agreement by Distribution-Publications, Inc., hereinafter "DPI," as signified by Customer's appointment of DPI as its authorized representative to file tariffs on behalf of customer, and subject to all its terms and conditions, DPI agrees to furnish to Customer tariff publishing services identified in its "FMC Tariff Publication, Price List" (the "Services"), shown on the reverse side of this agreement, including amendments. The Services will be performed pursuant to the conditions contained herein.
b. DPI agrees to provide Customer publishing services in a timely manner such that the publishing services for which Customer has contracted with DPI will be completed based on the best effort of DPI to comply with the tariff filing requirements of the FMC as set forth in Code of Federal Regulations CFR 46, Parts 500-588, and FMC Dockets, Supplemental Reports and Notices thereto.
c. DPI is not responsible for providing any products or services not specified in this Agreement.
d. DPI's obligation to render the Services shall be excused to the extent that customer fails to meet any of its obligations to furnish any tariffs or information required by DPI or to undertake any reasonable actions requested by DPI in connection with the performance of the Services.
e. Customer is wholly responsible for the accuracy, completeness, and commercial usefulness of any data provided to DPI for publishing purposes and of any other information and instructions provided by Customer to DPI in connection with the Services, and DPI has no liability whatsoever for the reliability and accuracy or the non-compliance with governmental regulation of any such data, information, or instructions provided to DPI by Customer, or company (Customer) delays.
f. In the event regulatory or statutory changes affect the scope, the extent, or the delivery of the services, DPI will use reasonable efforts to implement the changes in the Services, but it will be entitled to collect from Customer, at the fee schedule shown herein, the additional fees resulting from the implementation of the changes, including any regulatory fees. Any delay in delivery caused by regulatory, statutory, conference, or customer is not the responsibility of DPI.
g. DPI will review the accuracy of the publishing services pursuant to its standard review procedures. Customer shall have thirty (30) days from the date of delivery of tariff data or pages to review the publishing and advise DPI of any accuracy error. DPI shall use its best efforts to resolve the problem promptly.
h. Customer will inform DPI concerning customer's business policies, requirements and procedures that may impact the provision of Services under this Agreement.
i. Customer will assign a responsible person to act as liaison between Customer and DPI. This person will (1.) Be responsible for obtaining responses to requests for information on a timely basis; (2.) Have authority to sign for or secure the authorized signature to obligate the Customer to any additional charges or services; and (3.) Have authority to make day-to-day decisions regarding the Services.
2. FEES AND PAYMENT TERMS
a. In consideration of services provided, Customer will pay DPI the fees itemized in DPI's Price List(s), and all disbursements incurred by DPI in providing services to Customer for postage, shipping charges, telecopy, telephone, duplication, and supplies. In the event Customer and DPI mutually agree DPI personnel shall provide services at Customer's premises, Customer will reimburse DPI for reasonable travel and living expenses incurred. Monthly invoices will be sent to Customer for all fees and services on a work in progress basis. Payment to DPI is due upon receipt and will be delinquent after thirty (30) days of the invoice date.
b. Prices do not include any taxes. Customer is solely responsible for payment of any applicable sales, use, excise, personal property, or similar taxes, and any governmental charges based on this transaction and any activities under this Agreement, including FMC filing fees, exclusive of taxes based on DPI's net income.
c. Payments not received by DPI when due are delinquent. Customer shall pay a one and one half percent (1-1/2%) monthly service charge on undisputed delinquent amounts. Customer also will reimburse DPI for all reasonable collection expenses, including attorney fees, with respect to a delinquent account.
d. DPI reserves the right to suspend services with ten (10) days notice in the event any amounts due by Customer become delinquent until such time as they are paid in full.
3. EXCLUSIVE WARRANTIES
a. DPI warrants that, during the term of this Agreement, it will use its best efforts to render the services accurately and in accordance with documented FMC specifications and the public FMC regulatory requirements as of the date of this Agreement. DPI does not warrant and expressly disclaims any liability for any commercial implications of the Services, including the acceptability or certification of any tariff published under this Agreement by the FMC or any similar agencies.
b. EXCEPT FOR THE WARRANTY EXPRESSLY SET FORTH IN 3.a, DPI DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES COVERED BY OR FURNISHED PURSUANT TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY
a. With respect to all claims involving the Services or performance or nonperformance under this Agreement, the exclusive remedy is (a) the correction of the problem by DPI or, (b) if, after reasonable repeated efforts, DPI is unable to correct the problem, Customer shall be entitled to terminate the Agreement and to receive a refund of any amounts paid to DPI for which DPI did not perform the work. Moreover, if after responsible and repeated requests by DPI, the Customer is unable to provide the information requested by DPI in connection with the work to be performed under this Agreement, or if the Customer repeatedly or materially changes publishing policy, then DPI shall be entitled to terminate the Agreement and to receive payment from Customer for all work performed by it under this Agreement prior to termination.
b. REGARDLESS OF THE FORM OR ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY OR OTHERWISE, THE CUSTOMER ACKNOWLEDGES THAT DPI WILL NOT BE LIABLE FOR ANY LOSS OF DATA, PROFIT OR REVENUE BY CUSTOMER OR FOR ANY INDIRECT CONSEQUENTIAL, INCIDENTAL, SPECIAL,PUNITIVE OR EXEMPLARY DAMAGES INCURRED OR SUFFERED BY CUSTOMER, IN CONNECTION WITH THE SERVICES PROVIDED OR TO BE PROVIDED UNDER THIS AGREEMENT OR OTHERWISE ARISING UNDER THIS AGREEMENT, EVEN IF DPI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, OR FOR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PARTY. THIS LIMITATION APPLIES TO ANY CLAIMS BY CUSTOMER UNDER THIS AGREEMENT. THE REMEDIES PROVIDED FOR IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES.
5. MISCELLANEOUS
a. Neither DPI nor Customer will be liable to the other for failure to provide services, non-performance,incomplete performance, delay or error under this Agreement if the cause of the same is beyond its reasonable control or caused by mechanical breakdown, interruption of power or utility service, acts of other persons not under control of either DPI or Customer, governmental rules or orders, court orders, any labor or civil disturbance embargoes, strike, boycott, riot, floods, shortages of materials, insurrection, war, or act of God. Any of these events will delay the required performance for a period equal to the length of the event plus a reasonable time thereafter to implement performance. The parties shall notify each other of an event of excused performance and cooperate in good faith to ascertain a possible solution of the situation.
b. This Agreement shall be construed in accordance with the law of California. In the event of an action to enforce any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and court costs from the losing party.