1. AGREEMENT TERM
a. The term of this Agreement will be twelve (12) months from the commencement of services («Initial Term»), and shall automatically renew for additional periods of twelve (12) months (each one, a «Renewal Term»), unless a party provides written notice of termination to the other at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term.
2. SERVICES
a. Effective on the date of commencement of service, DPI agrees to furnish to Customer the services identified in its Price List (the «Services»), a copy of which is attached hereto. The Services will be performed pursuant to the conditions contained herein.
b. The parties agree that DPI may from time to time amend its Price List. DPI will provide the amended Price List to Customer thirty (30) days in advance of its effective date and the amended Price List will apply to Services provided by DPI after the effective date.
c. DPI agrees to provide Customer such Services as the Customer may request in a timely manner such that the Services for which Customer has contracted with DPI for will be completed based on the best effort of DPI to comply with the regulations of the U.S. Federal Maritime Commission («FMC») as set forth in Code of Federal Regulations («CFR») 46, Parts 500-588, and FMC Dockets, Supplemental Reports and Notices thereto.
d. DPI is not responsible for providing any Services not specified in this Agreement.
e. DPI’s obligation to render the Services shall be excused to the extent that Customer fails to furnish any information, contracts, or documents required by DPI or to undertake any reasonable actions requested by DPI in connection with the performance of the Services.
f. Customer is wholly responsible for the accuracy, completeness, and commercial usefulness of any data, information, contracts or documents provided to DPI for publishing or filing purposes and of any other information and instructions related thereto that are 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 delays caused by Customer.
g. 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 be compensated by Customer, in accordance with the Price List, as amended, such additional fees resulting from the implementation of the changes, including any regulatory fees. Any delay in delivery caused by regulatory, statutory, or Customer requirements is not the responsibility of DPI.
h. Customer shall have thirty (30) days from the date of delivery to DPI of published tariff data or filed contracts or arrangements to review the publishing or filing and to advise DPI of any accuracy error. DPI shall use its best efforts to resolve the problem promptly.
i. Customer will inform DPI concerning Customer’s business policies, requirements, and procedures that may impact the provision of Services under this Agreement.
j. Customer will assign a responsible person to act as liaison between Customer and DPI. This person will (1.) Be responsible for providing responses to any DPI requests for information in connection with the Services to be performed under this Agreement 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.
3. FEES AND PAYMENT TERMS
a. In consideration of Services, Customer will pay DPI the fees itemized in DPI’s Price List(s) as from time to time amended in accordance with the procedures specified herein, as well as all disbursements incurred by DPI in providing Services to Customer, including, but not limited to, postage, shipping charges, telecopy, telephone, duplication, and supplies. In the event Customer and DPI mutually agree that DPI personnel shall provide Services at Customer’s premises, Customer will reimburse DPI for reasonable travel and living expenses incurred.Invoices will be sent to Customer on a monthly basis and fees assessed for Services and disbursements assessed 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. 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 reasonable attorneys’ fees and expenses, with respect to a delinquent account.
c. Customer utilizing DPI’s Negotiated Rate Agreement Management System (NRAMS) or any Service listed under FMC Tariff Services on the attached DPI Price List shall pay to DPI an annual database management fee of $432.00. This fee is assessed once a year and may not be refunded upon cancellation of Services or otherwise.
d. 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.
e. 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. DPI shall have a lien on Customer’s documents and data for any unpaid fees and disbursements due and owing to DPI.
4. 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 published FMC regulatory requirements as of the date of this Agreement and/or as of the date of any provision of Services hereunder. DPI does not warrant and expressly disclaims any liability for any commercial implications of the Services, including the acceptability of any tariff published under this Agreement by the FMC or any other regulatory agencies.
b. EXCEPT FOR THE WARRANTY EXPRESSLY SET FORTH IN 4.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.
5. EXCLUSIVE REMEDIES, LIMITATION OF LIABILITY, AND INDEMNIFICATION
a. With respect to all claims involving the Services, failure to perform or nonperformance under this Agreement, the exclusive remedy is (a) the timely correction of the problem by DPI or, (b) if, after reasonable efforts, DPI is unable to correct the problem, Customer shall be entitled to terminate the Agreement upon written notice to DPI and to receive a refund of any amounts paid to DPI for the work which DPI did not perform adequately. Moreover, if after responsible and repeated requests by DPI, the Customer is unable to provide the information requested by DPI in connection with the Services to be performed under this Agreement, or if the Customer repeatedly or materially changes business policies, requirements and procedures that may impact the provision of Services under this Agreement, then DPI shall be entitled to terminate the Agreement upon written notice to Customer and to receive payment from Customer for all work performed by DPI 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 HEREBY AGREES TO PROTECT, INDEMNIFY, DEFEND, AND HOLD HARMLESS DPI FROM AND AGAINST ANY AND ALL COSTS, CLAIMS, DEMANDS, DAMAGES, LOSSES, AND LIABILITIES (INCLUDING ATTORNEYS’ FEES AND COSTS) ARISING FROM OR IN ANY WAY RELATED TO SERVICES PROVIDED UNDER THIS AGREEMENT AND 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 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 REMEDY PROVIDED FOR IN PARAGRAPH 5(a) IS THE EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER REMEDIES.
6. 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 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, lockout, 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 laws of the State of California without regards to principles of conflicts of law. In the event of an action to enforce any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses and court costs from the losing party.
c. If any provision of this Agreement or any exhibit or attachment hereto shall be held by a court of competent jurisdiction to be contrary to law, invalid, or otherwise unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and in any event the remaining provisions of this Agreement shall remain in full force and effect. The headings in this Agreement are inserted for reference and convenience only and shall not enter into the interpretation hereof.