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HomeMy WebLinkAboutMicrofilm Storage/ct'~ll~%~'~ RESOLUTION 2012-479 '%~Y ADOPTED DOC ID: 7912 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2012-479 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON JUNE 5, 2012: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute an agreement with Perpetual Storage~ lnc.~ 6279 E. Little Cottonwood Canyon Road~ Sandy~ Utah 84092 in connection with the storage of microfilm of the Town of Sonthold in the amount as set forth in Schedule "A", Schedule of Fees for Services and Additional Services, and Declared Value, attached to this resolution, all in accordance with the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: William Ruland, Councilman SECONDER: Albert Krupski Jr., Councilman AYES: Ruland, Talbot, Doherty, Krupski Jr., Evans, Russell STORAGE AND SERVICE AGREEMENT This Storage and Service Agreement ("Agreement") is entered into effective as of June 2012 (the "Effective Date") by and between Perpetual Storage, Inc., a California corporation qualified to do and doing business in the State of Utah with its principal place of business at 6279 East Little Cottonwood Canyon Road, Sandy, Utah 84092, and with its email address and facsimile number as psi~,perpetualstorage.com, (801) 942- 1952 (the "Company") and the Town of~ Sbuthold , With its princippa[ off~e at 53095 Main Rd.. PO Box 1179. $outhold. NY119'~I~d with its email address and facsimile number as ("Client"). The Company and Client are collectively referred to herein as the "Parties" and may sometimes singly be referred to herein as a "Party." In consideration of the mutual covenants contained herein, the parties agree as follows: 1. DEFINITIONS. The following terms, when used in this Agreement, shall have the following meanings: 1.1 "Access Authorization Form" means the Company's form to be signed by Client which, among other things, designates those persons authorized by Client to deposit into and receive from storage with the Company Stored Material (as defined below) and the level of access granted to those persons. The Access Authorization Form as the same may be amended from time to time is incorporated into and made a part of this Agreement by this reference. 1.2 "Authorized Representative" means those representatives of the Client, designated in writing from time-to-time by the Client as having authority to deposit into and receive from storage, at the Client designated lever of access, Stored Material pursuant to the most current Access Authorization Form provided by the Company and signed by an authorized representative of Client. The Client may change its Authorized Representative(s) and the level of access granted from time-to-time at Client's discretion by signing and delivery to the Company a new Access Authorization Form. 1.3 "Confidential Information" means any information identified by the Client as "confidential" or "proprietary," unless it is subsequently made public by the Client or by a third party having a legal right to make such disclosure. 1.4 "Records" mean any document, data, intellectual property, software, intangibles, or information of any type or description preserved on Storage Media (as defined below). 1.5 "Storage Facility" means the Company's constant temperature storage facility located in Little Cottonwood Canyon, Salt Lake County, Utah. 1,6 "Storage Media" means the physical medium(s) on which the Client's Records are stored, including, but not limited to computer tapes, microfilm, microfiche, hard drives, CD's and optical disks or other storage media of any kind or type now existing or hereafter developed. Storage Media does not include the Records stored thereon or anything else stored on the Storage Media. 1.7 "Stored Material" means the Records, Storage Media, and other material and containers that the Client places with Perpetual Storage for storage in the Storage Facility. 2. STORAGE. The Company hereby agrees to accept for storage and to service under its management system such Stored Material as Client places for storage with Company from time to time in the Storage Facility and that is serviced by Company pursuant to all terms and conditions herein, including those incorporated as attachments hereto. From and after the Effective Date and as long as Client has Stored Material with Company, the Company shall store and service the Stored Material in accordance with the terms and conditions of this Agreement. Any additional Stored Material hereafter delivered by Client to Company shall be subject to this Agreement. Tendering the Stored Material for storage and/or other services by the Client constitutes acceptance by Client of the terms, conditions and fees set forth in this Agreement. 3. SERVICES. In consideration of the payment of the fees for storage as set forth on the most current Schedule "A" attached hereto, which Schedule "A" is incorporated herein by this reference as though fully set forth herein, the Company shall provide the following services (the "Services") under this Agreement: 3.1 All Stored Material shall be kept in the maximum security area of the Storage Facility. 3.2 All Stored Material shall be kept under constant temperature and controlled humidity levels while inside the vault proper located in the Storage Facility. 3.3 The Company shall provide a 24-hour security system for the vault in which the Stored Material is stored. 3.4 Stored Material shall be placed on designated shelves or other storage locations and will not be co-mingled in containers with Stored Material of other depositors. All Stored Material will, however, be stored within the same vault located in the Storage Facility. 3.5 The Company shall adhere to strict admission and retrieval procedures concerning access to the Storage Facility as set forth on Client's most current Access Authorization Form. 4. ADDITIONAL SERVICES. If requested by Client, as evidenced by Client's representative's initials on Schedule "A" attached hereto, the Company shall provide the following additional services ("Additional Services") subject to an additional charge for such Additional Services as set forth on Schedule "A": 4.1 Company provided courier service for the Stored Materials as provided in Section 10.1 below. 4.2 Receipt and handling of damaged Stored Material. 4.3 Labor and materials for special packaging or unpackaging. 4.4 Special handling and special storage. 4.5 File referencing and inventories, interfiling, or special indexing. 4.6 Other services as agreed. Upon termination of this Agreement, the delivery of the Stored Material as directed by Client shall be subject to payment of delivery charges and any balance due for Services and Additional Services rendered which shall be paid in advance of such delivery. The Additional Services requested by Client may be amended from time-to-time by mutual agreement of the Parties evidenced by a newly signed and dated Schedule "A." 5. FEES, CHARGES AND PAYMENTS. Client agrees to pay Company the fees and charges for its Services and Additional Services in connection with the storage and handling of the Stored Material according to the then current Schedule ef Fees for such services as set forth on attached and incorporated herein Schedule "A," as the same may be amended from time-to-time. The initial Schedule of Fees for Services and Additional Services is effective for one (1) year from the Effective Date of this Agreement. Thereafter at any time, and from time-to-time, the Company may change its Schedule of Fees for Services and Additional Services by written notification thereef sent to Client at least thirty.(~)~'c~ays prior to the effective date of the change, in the event Client does not~ approve of any such change, Client may terminate this Agreement at any time prior to the effective date of the change in fees or renegetiate fees with the Company. In the event Client does not terminate this Agreement prior to the effective date of the change in fees, such change in fees shall conclusively be deemed to be agreed to and accepted by Client. All fees for Services and Additional Services shall be billed in advance and paid in accordance with the terms set forth on the attached and incorporated herein Schedule "A." Fees for the Services shall be paid in advance. Fees for Services and Additional Services shall be billed and paid on an annual or monthly basis as set forth on the most current Schedule "A." Storage Material added for storage during a billing cycle shall be prorated for the balance of that cycle; however, for Stored Material received during a month or stored for a portion of a month, charges will be assessed for a full month. Transportation surcharges may apply and change monthly without notice in accordance with the Company's fuel surcharge policy, a copy of which will be furnished to Client upon request. Unless otherwise agreed in writing by Company and Client, Company shall be entitled to utilize a third party to provide some or all of the Additional Services hereunder. All invoices are due and payable within thirty (30) days following the invoice date. Iflhc '-",..,,~., ,, .... '¢~'~.~,.~. to p-y_ *"'*,..~ ¢"~s,~ f.,er $~"~,irF's ~nd/~4~ditio~lal .......... h ....................~ ............ ~ pay i' ' ,tb, o ..... :,4 k~l .... of such fees ?t the r~.te of-eF~e ai~d one I-,o,, ye,,.,.,,~ ~ ,..-,ICl y~ -,,,,,-, ,,~;i .... . p. . ; 6't're-nt sh'~ ..... es~ ........ ~.~P,.se~- in ~ ....... ~ in c~,--lt,eet~lg u~llqu~., ~ ' " S~i v~e"s. 6. TERM. Unless sooner terminated as provided herein, this Agreement shall be for a term of three (3) years from the Effective Date (the "Initial Term") and shall be automatically renewed, without notice, for successive periods of one (1) year each (each a "Renewal Term") unless and until either party shall terminate this Agreement by giving the other written notice of its election to terminate, at least thirty (30) days prior to the expiration of the Initial Term or applicable Renewal Term, as the case may be. The terms and conditions of this Agreement shall be the same for each Renewal Term except for the fees for Services and Additional Services shall be those then currently charged by the Company for the same Declared Values. 7. TITLE WARRANTY. The Client warrants that it is the legal owner or legal custodian of the Stored Material, and has clear title thereto, free and clear of all liens and encumbrances. The Client further warrants that it has full authority to store the Stored Material in accordance with the terms of this Agreement. If the Company is made a party to any litigation in connection with the title to the Stored Material, or any portion thereof, the Client shall indemnify the Company against any and all costs and expenses it incurs as a result thereof including the Company's attorneys' fees and costs. 8. INSPECTION. The Client acknowledges it has selected the Company for storing the Stored Material, has had ample opportunity to inspect the Storage Facility, and has determined that the Storage Facility is suitable for the storage of Client's Stored Material. The Company has not examined the Records and does not know what constitutes the Records. The Company does not have equipment to read and does not read the Storage Media or the Records. The Company does not electronically store or transfer the Records. The Company does not know what, if anything, is contained on the Storage Media or the Records, does not independently know the value of the Stored Material including to the Client, does not know the consequences to the Client of the loss of the Stored Material, and expressly makes no representation that any Records within or on the Stored Material is of the type or content represented by the Client. 9. RESTRICTED MATERIALS. The Client shall not, at any time, store with the Company: (a) any narcotics, controlled substances or illegal drugs, or substances; (b) materials considered to be highly flammable, explosive, toxic or radioactive; (c) any organic material which may attract vermin or insects or which may cause harm or damage to any other items stored with the Company or to the Storage Facility or to the Company's personnel; (d) other materials which are illegal, dangerous, or unsafe to store or handle in the Storage Facility or to transport to or from the Storage Facility or any matter regulated by federal or state law or by any regulation relating to the environment or hazardous materials; or (e) bullion, currency, jewelry, gems, check stock, ticket stock or other items, which have material intrinsic market value (collectively "Restricted Material"). The Company reserves the right to inspect any and all of the Stored Material at any time if it has reason to believe any Restricted Material has been, is, or will be stored by the Client. The Company at its sole discretion may refuse to accept any Stored Material for storage for any reason whatsoever, including but not limited to reasons that the Company believes may compromise the integrity of the Storage Facility, its operations, other stored items or its personnel. If the Company is made a party to any litigation in connection with any portion of the Stored Material being Restricted Material, the Client shall indemnify the Company against any and all costs and expenses it incurs as a result thereof including the Company's attorneys' fees and costs. Client represents and warrants to Company that none of the Stored Material constitute federal government classified or high classified documents, data or information or 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, Client shall notify Company of the specific Stored Materials that contain such information and acknowledges that special storage and service rates shall apply thereto. 10. DELIVERY OF STORED MATERIALS. 10.1. If the Client requests the Company's courier service, Stored Material will be picked up from and delivered to a location in Client's building or office or such other alternate location designated by Client and agreed upon by the Company in the case of a disaster as set forth on the Access Authorization Form and only on receipt by the Company of complete instructions properly signed by Client or its Authorized Representative. The Access Authorization Form provides for three levels of authority of Client's Authorized Representative(s). If the Client appoints an Author[zed Representative, the Client represents that such Authorized Representative has full authority to act for Client at the applicable level of authority as set forth on the Access Authorization Form. Orders by Client or an Authorized Representative must be given electronically, by fax or in writing and are valid only upon actual receipt by the Company. 10.2 Company shall pick up and deliver Stored Material at the place or places referenced on the applicable Access Authorization Form, unless otherwise expressly designated in writing by Client. Multiple stops at the same street address shall be considered separate trips unless otherwise agreed upon herein. Unless Company is contracted by Client to do so, Company shall not be required to inventory or pack for transportation any Stored Material, or to unpack any Stored Material upon delivery to Client's site. Client agrees to maintain at all times an unobstructed access route into its facilities and a legal, cost-free parking area for Client. Unless Client instructs Company otherwise in writing, Client specifically instructs Company when performing deliveries to leave Stored Materials with the Client representative who meets the Company courier, which Client representative may not be an Authorized Representative. 10.3 The Company has the right to refuse pick up from or delivery of any Stored Material to any person when in doubt about that person's authority, ownership or entitlement to the Stored Material or if the Company believes the Stored Material contains Restricted Material. This refusal will continue until the dispute is resolved, either by the Company and Client or by final determination of a court of competent jurisdiction. In addition, in the event of such a dispute, the Company shall have the right, but not the obligation, to petition the court for a determination as to entitlement of any person or legal entity to receipt and/or possession of any Stored Material. Any action by the Company to pick up or deliver Stored Material pursuant to this Section 10.3 or any seeking of a court determination shall be without liability on the part of the Company, and the Client shall indemnify and hold the Company harmless from any and all fees and costs, including reasonable attorneys' fees, incurred in connection with such dispute regarding authority, ownership or entitlement. 10.4 When any Stored Material is requested from the Storage Facility, a reasonable time shall be given to the Company to carry out the instructions for delivery. If the Company is unable to deliver within such time, or to provide any other service herein contemplated within the time agreed upon, ar if the Stored Material is lost, damaged, or destroyed (in whole or in part) or becomes unavailable, due to acts of God or public enemy, seizure or legal process, strikes, lockouts, acts of terrorism, riots and civil commotions, operation of law, court order, or other reason beyond the Company's reasonable control, or because of any other excuse provided by law, the Company shall not be liable. The Client's Stored Material remaining in storage shall continue to be subject to regular storage charges as set forth in Section 5 of this Agreement. 10.5 The Company reserves the right to deny access to or delivery of Stored Material until such time as Client has cured any default as set forth in this Agreement. 10.6 An Authorized Representative of Client or a person designated in writing by Client or by an Authorized Representative of the Client shall have the right at reasonable times and upon reasonable advance notice to audit the Client's Stored Material. 11. WAREHOUSE RECEIPTS. All warehouse receipts shall be non-negotiable and shall be in the form prescribed by the Company. Failure to return any warehouse receipt for correction within twenty-four (24) hours after receipt thereof by Client shall be presumptive evidence that such receipt is correct and that delivery will be made only in accordance with the terms thereof and this Agreement. 12. CONFIDENTIALITY. The Company and its employees shall hold confidential all Confidential Information obtained by it with respect to Client's Stored Material. The Company shall exercise that degree of care in safeguarding Confidential Information and the Stored Material which a reasonable and careful company would exercise in like circumstances, provided, however, that the Company's liability to Client shall be limited as set forth below. If the Company receives a subpoena, court order, or other legal process requiring disclosure of Confidential Information, it shall promptly give notice to Client, including a copy of such subpoena, court order, or process, and shall thereafter comply with the subpoena, court order, or process and in such event shall not be deemed in breach of this Agreement. C',:,c~,t she!! pet.' 2!! of thc Ccmpcz, y's costs ¢,~,d cxpc.~,c ' ' ' g ~"~S ~'O~.19OTFdblt~ ct[LuIIIt~y~' ~'ec:s ]i-i ~.o,.p;y;,,gwvit-h-acty I~,q21 prn .... 13. CLIENT'S RESPONSIBILITIES. Client shall be solely and exclusively responsible for providing: (a) proper user names, passwords, credentials, keys, encryptions, and other protections pertaining to the Records consisting of or containing electronically stored data and/or information; (b) backup of the Records; (c) the containers (which may, but are not required to be purchased from the Company), and locks for the same for the Stored Material including the Records and any and all packaging; (d) compliance with all laws, regulations and ordinances pertaining to the Stored Material; (e) insurance in such types and amounts as Client determines necessary or appropriate covering the loss, damage and/or destruction of the Stored Material; and (f) for Records consisting of or containing electronically stored data and/or information, proper and valid encryption, with th~ use of valid encryption processes, for all Records containing protected health information and/or consumer information 4 (including social security numbers, credit card numbers and other consumer financial information) placed with Perpetual Storage for transit and/or storage so as to render such Records unusable, unreadable or indecipherable to unauthorized individuals. If the Records contain protected health information, such encryption shall be "valid" encryption under the then applicable provisions of HIPAA, the HIPAA Security Rule and the HITECH Act, as any of the same may be amended from time-to time, and shall be of the type and nature described in the Rules and Regulations of the Department of Health and Human Services, as the same may be amended, modified and/or updated from time to time, and any such other applicable federal or state statutes. All encryption, whether the Records contain protected health information, consumer information or other information shall be accomplished by means consistent with the then applicable valid encryption standards, requirements and processes established from time-to-time by the National Institute of Standards and Technology or such recognized successor agency or entity, and/or such governmental agency having jurisdiction. The Company does not insure the Records, the Stored Material or the Storage Medium. The Company provides its own insurance covering, among other things, its own property, actions and omissions. Client is strongly encouraged to provide such insurance as it determines necessary or appropriate. The Company shall have no responsibility or obligation to the Client or to any third persons or legal entities for any claim, damage or loss that could have been prevented by Client's failure to properly encrypt the Records as set forth above, or for or arising out of or resulting from any failure on the part of Client to perform its responsibilities as set forth in this paragraph 13. Notwithstanding anything in this Agreement to the Contrary,Client shall indemnify and hold harmless the Company from any such claim, damage or loss that could have been prevented by Client's failure to properly encrypt the Records as set forth above. 14. LIMITATIONS OF LIABILITY 13.1 THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, THEFT OR DAMAGE TO STORED MATERIAL OR IN CONNECTION WITH THE PERFORMANCE OF ANY SERVICES OR ADDITIONAL SERVICES HEREUNDER OF ANY KIND OR NATURE, HOWEVER CAUSED, AND UNDER ANY AND EVERY LEGAL THEORY INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, BAILMENT, BREACH OF WARRANTY, STATUTE OR NEGLIGENCE, AND WHETHER THE STORED MATERIAL IS IN STORAGE AT THE STORAGE FACILITY OR IN TRANSIT TO OR FROM THE STORAGE FACILITY, UNLESS SUCH LOSS, INJURY, THEFT OR DAMAGE RESULTED FROM THE FAILURE BY THE COMPANY TO EXERCISE SUCH CARE IN REGARD THERETO AS A REASONABLY CAREFUL COMPANY WOULD EXERCISE IN LIKE CIRCUMSTANCES. THE COMPANY'S LIABILITY AND DAMAGES UNDER ANY AND EVERY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, BAILMENT, STATUTE, BREACH OF WARRANTY OR NEGLIGENCE), FROM ANY CAUSE, AND WHETHER THE STORED MATERIAL IS IN STORAGE AT THE STORAGE FACILITY OR IN TRANSIT TO OR FROM THE STORAGE FACILITY SHALL BE LIMITED TO THE HIGHER OF: (A) CLIENT'S DECLARED VALUE OF THE STORAGE MEDIA ON WHICH CLIENT'S RECORDS ARE STORED AS SET FORTH ON SCHEDULE "A" ATTACHED HERETO, OR (B) THE AMOUNT THE COMPANY'S INSURANCE CARRIER IN FACT PAYS ON THE APPLICABLE CLAIM. CLIENT MAY INCREASE THE DECLARED VALUE OF CLIENT'S STORAGE MEDIA, IN WHICH EVENT, CLIENT SHALL PAY INCREASED FEES AS THEN AGREED UPON BETWEEN THE COMPANY AND THE CLIENT. THE COMPANY SHALL HAVE NO LIABILITY FOR THE DETERIORATION OF ANY STORAGE MEDIA OR ANY RECORDS STORED THEREON. THE COMPANY SHALL NOT BE LIABLE FOR LOSS OR DAMAGE TO ANY STORED MATERIALS RESULTING FROM ACTS OF GOD OR PUBLIC ENEMY, SEIZURE OR LEGAL PROCESS, ACTS OF TERRORISM, RIOTS, CIVIL COMMOTIONS, OR OTHER CAUSES BEYOND THE COMPANY'S REASONABLE CONTROL. COMPANY IS NOT RESPONSIBLE FOR THE REPAIR, REPLACEMENT OR RESTORATION OF LOST OR DAMAGED RECORDS, SUBJECT TO THE CONDITIONS AND LIMITATIONS IMPOSED BY THIS AGREEMENT. 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. 13.2 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. 15. SOLE REMEDY AND ALLOCATION OF RISK. CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM FOR LOSS, DAMAGE, DESTRUCTION, OR THEFT OF ANY OF THE STORED MATERIAL AND THE COMPANY'S SOLE AND EXCLUSIVE LIABILITY IS SET FORTH IN THIS AGREEMENT. This Agreement defines a mutually agreed-upon allocation of risk. Each of the parties acknowledge that the provisions of this Agreement were negotiated to reflect a mutually informed, voluntary allocation between them of all risks (both known and unknown) associated with the storage of the Stored Material in the Storage Facility. The disclaimers and limitations in this Agreement are intended to limit the circumstances of liability and are separately intended to limit the forms of relief available. 16. DEFAULT 16.1 The occurrence of any one or more of the following events shall constitute a default: a. Failure to pay any sum due hereunder when due; or b. Breach of any provisions of this Agreement; or c. Client becomes insolvent or files, or has filed against it, any proceeding in federal or state Court seeking relief as a debtor; or d. Client fails to cooperate with Company in a manner that substantially hinders the Company from providing its services under this Agreement. 16.2 Upon the occurrence of default, Company, at its sole option, may exercise any or all of the following remedies which are cumulative with er without terminating the Agreement: a. Demand payment in advance by certified check, cashier's check, money order, or wire transfer prior to the performance of any services on behalf of the client; b. Demand in writing that Client pick up the Stored Material; c. Deliver the Stored Material to the Delivery Address; or if none specified, to the Client's Address; ~'~) (~c,z~ ~--~/~ d. Upon thirty.(.~O~day's advance written notice to Client, Company may dispose of Stored Material. (In this regard, the Client recognizes that, since the Stored Material has little or no market value, that sale of the material would be impossible, and disposal of client materials is the only way for the Company. to roitigate its damage.) , ' e. If this Agreement has not been terminated, Client shall continue to pay all sums due under this Agreement up to and including the date of delivery of the Stored Material as provided in (b) above; f. Terminate this Agreement with immediate effect, whereupon Company shall recover all damages suffered by reason of such termination, including cost, expenses and reasonable attorneys' fees; and/or g. Retain the Stored Material until payment is made of all Storage Fees, Additional Fees and any and all other fees, costs and expenses. 16,3 In the event Company takes any action or does not take any action pursuant to this Section 15, it shall have no liability to Client or anyone claiming through Client arising from such action or inaction. 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. 17, FORCE MAJEURE. Neither the Company nor the Client shall be liable to the other or be deemed to be in breach of this Agreement for any failure or delay in rendering performance arising out of causes beyond its reasonable control and without its fault or negligence. Such causes may include, but are not limited to, acts of God or the public enemy, fires, floods, acts of terrorism, epidemics, quarantine restrictions, strikes, freight em'bargos and unusually severe weather. 6 18. LIEN. The Company shall have a lien on all Stored Material of the Client for any and all unpaid fees, charges, costs, or expenses due and owing to the Company. The Client further grants the Company a security interest in all stored Material to secure payment of all fees, charges, costs, and expenses incurred. The parties agree that the Company shall have all of the rights and be subject to all of the duties of a secured party under Article 9 of the Utah Uniform Commercial Code. In addition, the Company shall have, and may exercise, all rights granted to a warehouse by the Uniform Commercial Code as adopted in the State of Utah. The Company's lien and security interest is perfected by possession. Client agrees that the Company may file a UCC financing statement with each appropriate governmental office evidencing its lien and security interest without the further consent or signature of Client. The Company may waive its liens and security interests at its sole discretion without in any way waiving or impairing any of its other rights and remedies under this Agreement. This Agreement is incorporated by reference into the Warehouse Receipts issued to Client as though fully set forth therein 19. MISCELLANEOUS. This Agreement (together with the attached Schedule "A") 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. Client may not assign this Agreement without the consent of Company. No modification of this Agreement shall be binding unless in writing, attached hereto, and signed by the party against which it is sought to be enforced. 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 severable. The invalidity of any provision or portion of a provision of this Agreement shall not affect the validity of any other provision of this Agreement or the remaining portion of the applicable provision. 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 construed in accordance with the laws of the State of Utah. This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns. No person or legal entity shall be deemed to be a third-party beneficiary of this Agreement or any of the provisions hereof. All Schedules attached hereto are hereby incorporated by reference and made a part hereof. The term "Agreement" as used herein shall be deemed to include all such schedules. Unless delivered personally, all notices shall be addressed to the appropriate addresses noted in the introductory paragraph of this Agreement, or as otherwise noted in writing in accordance with this provision. Notices shall be in writing and shall be address to the applicable Party at the address or otherwise as provided in the introductory paragraph of this Agreement and shall be given by confirmed electronic transmission, confirmed facsimire transmission, next-day courier, certified mail or United States First Class Mail, and shall be effective upon receipt unless mailed by United States First Class Mail, in which event notices shall be deemed to have been received as of the third business day after the date of posting. In the event it becomes necessary to enforce any of the terms or provisions of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs incurred both before and after suit, after judgment, on appeal and for collection. 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. Nothin9 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. The Company is an independent contractor. IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the Effective date set forth in the introductory paragraph of this Agreement. C~.kIENT: ~uthorized ~ignature) (printed n~me) COMPANY: Perpetual St.c~qge, Inc, ~ ' ea signature) SCHEDULE "A" Schedule of Fees for Services and Additional Services, and Declared Value Client agrees to the Storage Fees and Additional Fees set forth below. Client declares the value of each of the categories of items of Storage Media submitted by Client to the Company for transit and storage during the Term and each Renewal Term of this Agreement as set forth below ("Declared Value"). Client agrees that the Company's liability in case of loss or damage under any and every legal theory (including, without limitation, contract, tort, bailment, breach of warranty or negligence) and from any cause, while such Stored Material is in its possession, either during transit or storage, shall not exceed the higher of total Declared Value as set forth below or the amount the Company's insurance carrier in fact pays on an applicable claim. Client may state a higher Declared Value for the Stored Materials by setting forth a new Declared Value and paying the Company's higher fee for such increase in Declared Value. Each new Schedule "A" must be dated and signed by Client and approved and signed by the Company to be valid and binding on the Parties. Client is encouraged to provide its own insurance. This Schedule A is incorporated into and made a part of the Storage and Service Agreement. ITEM DECLARED VALUE NO. OF ITEMS STORAGE FEES PER YEAR A. STORAGE FEES ROLL MICROFILM: Silver 16mm x 100' $6.00 each Silver35mm x 100' $8.25 each Diazo 16mm x 100' $4.00 each Diazo 35mm x 100' $4.50 each MICROFICHE: Silver 4" x 6" $0.40 each Diazo 4" x 6" $0.15 each HARD DRIVES MAGNETIC COMPUTER TAPE MISCELLANEOUS TOTAL DECLARED VALUE AND LIMITATION OF LIABILITY: TOTAL ANNUAL FEES FOR SERVICES B. ADDITIONAL FEES. FEES 4.1 Company provided courier service 4.2 Receipt and handling of damaged Stored Material 4.3 Labor and materials for special packaging or unpackaging 4.4 Special handling and special storage 4.5 File referencing and inventories, interfiling, or special indexing 4.6 Other services as agreed TOTAL ANNUAL FEES FOR ADDITIONAL SERVICES TOTAL STORAGE FEES AND ADDITIONAL FEES client initials CLIENT ACKNOWLEDGES THAT IT HAS BEEN AFFORDED THE OPPORTUNITY, BUT HAS DECLINED, TO DECLARE A HIGHER VALUATION, FOR WHICH A HIGHER VALUATION FEE WOULD HAVE BEEN CHARGED. Client: The Company: ~, (~u~pd~ si~ture)~6 ~ / ~eru~_.>- ' (authorized signature)