NATIONAL ENVIRONMENTAL SITE ASSESSMENT DEPOSITORY, Inc.™ – NESAD, Inc.™ SUBSCRIPTION AGREEMENT
Welcome to the National Environmental Site Assessment Depository™ operating as NESAD, Inc.™. This NESAD™ Subscription Agreement (“Agreement”) is made effective as of ________________, 202_ (the “Effective Date”) by and between National Environmental Site Assessment Depository™, Inc. and NESAD, Inc.™, 1314 Bedford Avenue, Suite 102, Baltimore, Maryland 21208 (“NESAD”, “we”, “us”, or “our”) and [Subscriber Name], [Subscriber Address] (“Subscriber” or “you”), and sets forth the terms under which NESAD™ will make available to you a subscription to access and use NESAD™’s Map Search™ application. By purchasing this Subscription, as defined herein, you also agree to be bound by the NESAD™ Terms of Service and Privacy Policy (both provided on NESAD™‘s website), the terms of which are incorporated herein by reference. You and NESAD™ are each a “Party” and collectively the “Parties” to this Agreement.
BACKGROUND
A. NESAD™ has developed a cyber-secured, searchable, national reference depository of environmental, structural, and related physical due diligence documents established to support and assist the commercial real estate mortgage lending, brokering, loan origination, and insurance industries with their environmental and structural due diligence and real estate asset evaluation objectives.
B. Subscriber wishes to obtain and NESAD™ agrees to make available to Subscriber, a subscription to access and use the depository Platform, on the terms and conditions set forth in this Agreement.
In consideration of the mutual agreements contained herein, the parties agree as follows:
1.0 DEFINITIONS
1.1 “Authorized Users” means Subscriber’s employees or agents authorized by Subscriber to access and use the Platform pursuant to this Agreement.
1.2 “Affiliate” means any present or future entity(ies) controlled by, controlling or under common control with either Party, and any entity(ies) over which either Party exercises managerial control or through which the respective Party delivers a service to its customers or clients pursuant to a written contract.
1.3 “Confidential Information” shall be defined as set forth in Section 7.
1.4 “Metrics” means all user technical documentation and functional specifications associated with the Platform.
1.5 “Intellectual Property” means any and all works of authorship, inventions, patents, patent applications, copyrights, copyright registrations, proprietary models and design registrations, trademarks, service marks, trade names, business names, domain names, trade dress, trade secrets, source code, object code, test results, interfaces, methods, proprietary techniques, database rights, regulatory filings, and any other industrial or proprietary rights of any kind, and any rights to any of the foregoing, and any documentation relating thereto, whether or not registered as of the Effective Date of this Agreement or at any time.
1.6 “Permitted Uses” shall be defined as set forth in Section 2.2.
1.7 “Platform” means the NESAD Map Search™ application, provided to Subscriber on a subscription basis, including Subscriber’s rights to access and execute the applications, computer programs, tools, modules, databases and web pages that are made available to Subscriber by NESAD™, including all modifications, revisions, updates, releases, enhancements thereof made available to Subscriber as part of the Platform together with all software, computer programs, Documentation and other materials associated with the Platform and provided to Subscriber.
1.8 “Service” means access to the Platform and related services provided to Subscriber by NESAD™ hereunder.
1.9 “Subscriber Data” means all data that Subscriber or its Authorized Users upload to, transmit, or generate by, through and or in connection with the Platform, and includes all metadata.
1.10 “Term” shall be defined as set forth in Section 3.1.
2.0 SUBSCRIPTION
2.1 Subscription. NESAD™ hereby grants to Subscriber and to Subscriber’s Authorized Users, a non-exclusive, non-transferable subscription (“Subscription”), to access and use the Platform.
2.2 Permitted Uses. Subscriber acknowledges and agrees that the Platform, including, without limitation, the Metrics, is a legal, USPTO-patented, proprietary works made available to NESAD™ Subscriber and its Authorized Users during the Term, solely for use in connection with Subscriber’s activities relating to the search and review of environmental assessment reports for real property, subject to all of the terms and conditions of this Agreement (the “Permitted Uses”). Subscriber’s use of the Platform includes access and/or use of the Platform by its Authorized Users, who may elect to access the Platform using their own devices (e.g., smart phones, tablets) or devices provided by the Subscriber. Subscriber agrees to in no way infringe, copy, or duplicate in any form or permutation the NESAD Map Search™ Platform application.
2.3 Restrictions on Use. The Platform may be used only for, by and on behalf of Subscriber and its Authorized Users for the Permitted Uses. Except as expressly provided herein, Subscriber shall not (i) rent, lease, lend, resell, transfer, sublicense or permit any third parties to use the Platform, or (ii) use the Platform to process or permit to be processed the data of any third party; (iii) modify or make derivative works based upon any part or component of the Platform or Metrics; (iv) create internet links to the Platform or “frame” any of its content, or any subparts thereof on any other server or wireless or internet based device, or (v) remove, alter or delete copyright notices, trademark notices or other legends on the Metrics, or any other elements of the Platform.
2.4 Responsibility. Subscriber shall be responsible for all activity occurring under the Subscription, by Subscriber and its Authorized Users. Subscriber shall abide by all applicable local, state, and national laws and regulations in connection with Subscriber’s use of the Platform, including those related to data security, privacy, communications, and the transmission of personal data. Subscriber shall indemnify, defend, and hold harmless NESAD and its Affiliates, and their directors, officers, and employees from and against any loss, cost, or liability (including without limitation reasonable attorney’s fees and expenses) resulting from or relating to a claim of a third party arising from Subscriber’s use of the Platform.
2.5 Prohibited Uses. Subscriber agrees not to (i) reverse engineer, decompile, disassemble or work around technical limitations in the Platform or any computer software associated therewith; disable, tamper with or otherwise attempt to circumvent any mechanism that limits Subscriber’s use of the Platform; use the Platform for any purpose that is unlawful or prohibited by this Agreement; use the Platform in any manner that could damage, disable, overburden, or impair any NESAD Service, the Platform, or interfere with any other user’s or subscriber’s use and enjoyment of the Platform; or (ii) submit or upload to the Platform or any of its components any material that to its knowledge is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable to a reasonable person (collectively “Objectionable Matter”). Subscriber agrees to ensure that any of Subscriber’s Authorized Users are bound by agreements containing provisions prohibiting Authorized Users from submitting Objectionable Matter. Subscriber will comply in all material respects with all applicable laws regarding Subscriber Data and use of the Service, including laws involving data privacy and any applicable export controls. NESAD reserves the right to terminate this Agreement for cause in case Subscriber materially breaches the provisions of this Section in accordance with Section 3.2.1.
2.6 Updates. NESAD™ may make changes to the Platform from time to time, including, without limitation, the availability of features. NESAD will provide Subscriber with prior notice before removing any material feature or functionality of the Platform, unless security, legal or system performance considerations require an expedited removal or modification.
3.0 TERM AND TERMINATION; SUSPENSION
3.1 Term. The initial term of this Agreement shall commence on the Effective Date and continue for one (1) calendar year (the “Initial Term”). Unless sooner terminated as provided herein, this Agreement shall automatically renew through billing for additional contract periods upon expiration of the Initial Term and upon expiration of each annual contract period thereafter (each a “Renewal Term”), unless either Party gives written notice to the other Party, not less than thirty (30) days prior to expiration of the then-current contract period, of its intention not to renew. The Initial Term together with any and all applicable Renewal Term(s) is the “Term” of this Agreement.
3.2 Termination.
3.2.1 For Cause. This Agreement may be terminated by either Party in the event that the other Party has not performed a material obligation or has breached a material term of this Agreement (a) immediately upon receipt of written notice thereof if the breach or nonperformance is incapable of cure, or (b) upon the expiration of thirty (30) days (or any longer cure period authorized by the nonbreaching Party with respect to any individual breach) after receipt of written notice thereof if the breach or nonperformance is capable of cure and has not then been cured. In no event shall any termination relieve Subscriber of its obligation to pay any accrued fees or charges payable to NESAD™ for the period prior to the effective date of termination.
3.2.2 Early Termination. Subscriber may terminate this Agreement early, by written notice to NESAD™, on condition that Subscriber pay to NESAD™, within ten (10) days after the date such termination notice is given:
3.2.2.1 all accrued and unpaid fees and charges due to NESAD™ hereunder through the effective date of termination.
3.2.2.2 any outstanding costs or fees due to NESAD™ for services rendered and/or licensed use of the NESAD Map Search™ application.
3.2.2 Suspension. Notwithstanding anything herein to the contrary, if any breach by Subscriber of its payment obligation hereunder is not remedied within ten (10) days following receipt by Subscriber of written notice thereof, NESAD™ may, without limiting any other rights and remedies it may have, and without terminating this Agreement, temporarily suspend Subscriber’s access to the Platform until Subscriber cures the default, during which suspension, Subscriber shall continue to remain liable for the fees and charges incurred by Subscriber hereunder.
3.3 Post-Term. Upon expiration or termination of this Agreement, Subscriber and its Authorized Users shall have no further right or ability to access the Platform or any Subscriber Data stored in NESAD™’s computing environment.
4.0 ACCESS
4.1 Portal. Access to the non-public content of the Platform will be via the Internet through a secure, password protected website or accompanying mobile application. Subscriber assumes full responsibility and expense for remote connectivity necessary to access and use the Platform and for the transmission of data.
4.2 Access Codes. NESAD™ shall provide Subscriber and Authorized Users with, or Subscriber shall choose, user name(s) and password(s) to access and use the Platform (“Access Codes”) via the Internet. Subscriber is responsible for maintaining the security and confidentiality of the Access Codes.
4.3 Password Security. Subscriber will not (i) share Access Codes with persons other than Authorized Users; (ii) permit Access Codes to be cached in proxy servers and accessed by individuals who are not Authorized Users, or (iii) permit access to the Platform through a single identification or a password code made available to multiple users on a network. Subscriber is responsible for any unauthorized use of any Access Code and its Authorized Users’ breach of security related thereto. Subscriber agrees to use its best effort to prevent unauthorized use of the Platform.
4.4 Notification. Subscriber shall immediately notify NESAD™ of any unauthorized use of any Access Code or of any other security breach. Subscriber shall notify NESAD™ within 24 hours of discovery of any unauthorized use of the Platform or of the NESAD™ Terms of Service (provided on the NESAD™ website) applicable to the Website, the terms and conditions of which are incorporated herein by reference.
4.5 Suspension/Termination of Accounts. NESAD™, at its sole discretion, may suspend or terminate the username and password, account, or use of the Platform by the Subscriber or any Authorized User if such entity or person materially breaches this Agreement or, if Subscriber requests such termination or suspension in writing.
4.6 Connectivity. Subscriber shall be responsible for ensuring that the computer and communications hardware, software, and operating systems it employs to access and use the Platform are compatible with the Platform.
4.7 Security. Subscriber shall be responsible for and shall maintain, in connection with its use of the Platform, adequate technical, physical, and procedural access controls and system security requirements and devices to ensure that access to the Platform is limited to Authorized Users and to ensure privacy, confidentiality, integrity, authorization, authentication, virus detection and eradication, and other data and network security.
5.0 SUBSCRIPTION FEES
5.1 Fees. In consideration for the Subscription granted and Services provided by NESAD™ under this Agreement, Subscriber shall pay NESAD™ the subscription fees set forth on Schedule A.
5.2 Payment Terms. Subscription fees shall be due and payable in accordance with the Payment Schedule set forth in Schedule A.
6.0 INTELLECTUAL PROPERTY
6.1 Platform. All Intellectual Property rights in and to the Platform, including, without limitation, computer programs, tools, modules, databases, interfaces and web pages accessible as part of the Platform, and the Metrics, belong to NESAD™. Except as otherwise provided in subparagraph 11.1 below, and with the exception of access and access and use of the Platform by Authorized Users as provided herein, under no circumstances shall Subscriber sell, license, or otherwise transfer to any third party the right to access or use the Platform without NESAD’s prior written consent.
6.2 Subscriber Data. Subject to the terms and conditions of this Agreement, Subscriber grants to NESAD™ a worldwide, perpetual, non-exclusive license to use, copy, store, transmit and display Subscriber Data, including but not limited to displaying aspects of Subscriber Data in NESAD’s Map Search™ program and transmitting Subscriber Data to other subscribers for their use in a manner covered by the definition of Permitted Uses herein. Ownership of the Subscriber Data shall remain with the Subscriber and its Authorized Users. By uploading Subscriber Data to the Platform, Subscriber acknowledges and agrees, and will require its Authorized Users to acknowledge and agree as a condition of accessing and using the Platform, that NESAD™ may process, transmit and/or store such data for the purpose of performing the Service under this Agreement, and may maintain and use such data for the purposes described in Paragraph 6.3, below.
6.3 Aggregated Data. Subscriber grants NESAD™ a limited right to use Subscriber Data in order to prepare, for NESAD™’s internal use, aggregate anonymous statistical data regarding use and functioning of its system by its various users to improve system performance and design of the Platform. All Data collected in the course of a study using the Platform is owned by the Subscriber. Subscriber Data may be merged with other data of other NESAD™ customers for operational benchmarking, and such aggregated statistical data compiled by NESAD™ will be the sole property of NESAD™, solely for the purposes described in this Section; provided Subscriber Data will remain the sole property of Subscriber and will at all times be subject to the ownership and confidentiality provisions of this Agreement.
6.4 Subscriber Trademarks and Service Marks. Subscriber grants to NESAD™ a non-exclusive license to display any trademark or service marks uploaded by Subscriber to the NESAD Map Search™ Platform (“Subscriber Marks”), including registered or unregistered trademarks or service marks belonging to Subscriber or to Subscriber’s Affiliates. NESAD™ agrees that Subscriber Marks will be used exclusively in connection with Subscriber Data and not as an endorsement of any products or services offered by NESAD™, except as set forth below in Paragraph 7.4.
7.0 CONFIDENTIAL INFORMATION
7.1 Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), that is designated confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Subscriber agrees that the technology of the Platform, including, without limitation, the computer programs, product designs, technical information, and Documentation, contains proprietary information, including trade secrets and is the Confidential Information of NESAD or its licensors. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. During the Term and after its termination, Subscriber and its employees and agents shall maintain the confidentiality of this information using no less effort than that used by Subscriber to protect its own Confidential Information of a similar type but in no case using less than reasonable care, and shall not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as expressly authorized by this Agreement.
7.2 Nondisclosure. Except as otherwise provided in this Agreement or with the consent of NESAD™, Subscriber agrees that all of NESAD™’s Confidential Information shall remain strictly confidential and shall not be utilized, directly or indirectly, by Subscriber for its own business purposes (or that of any other person) other than as contemplated by this Agreement or for any other purpose. Nothing herein shall be construed to prevent Subscriber from disclosing NESAD™’s Confidential Information to its legal advisors and accountants in connection with their rendering of professional services for Subscriber.
7.3 Compelled Disclosure. Notwithstanding the foregoing, Subscriber is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including.
7.4 Publicity. Notwithstanding anything to the contrary contained herein, NESAD™ may, to procure other subscribers and to generally promote its business, include Subscriber’s name and/or Subscriber Marks in its customer list as well as disclose that Subscriber is its customer and the relative volume of Subscriber Data submitted to the Platform by Subscriber as contrasted with other NESAD™ customers.
8.0 REPRESENTATIONS AND WARRANTIES
8.1 NESAD™ and Subscriber each hereby represent and warrant to the other as follows:
8.1.1 That it is duly organized and is duly authorized to execute and deliver this Agreement and to perform its respective obligations hereunder.
8.1.2 That this Agreement is a legal and valid obligation binding upon it and is enforceable in accordance with its terms, subject to bankruptcy, reorganization, insolvency, moratorium, and similar laws and to general principles of equity which are within the discretion of courts of applicable jurisdiction.
8.1.3 The execution, delivery, and performance by it of this Agreement and the consummation by it of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate:
8.1.3.1 any provision of law, rule, or regulation to which it is subject,
8.1.3.2 any order, judgment, or decree applicable to it or binding upon its assets or properties,
8.1.3.3 any provision of its by-laws or certificate of incorporation,
8.1.3.4 any agreement or other instrument applicable to it or binding upon its assets or properties, or
8.1.3.5 any previous agreement between it and any third party.
8.1.4 It will not enter into any other agreement or assume any obligation or restriction which would be inconsistent with the other Party’s exercise of rights and licenses granted to it herein.
8.1.5 No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by it in connection with the execution, delivery, and performance of this Agreement or the taking by it of any other action contemplated hereby.
8.2 NESAD™ warrants that it has the right to authorize the use of the Platform and to grant the Subscription granted in this Agreement.
8.3 NESAD™ makes no representation that the operation of the Platform will be uninterrupted or error free, and NESAD will not be liable for the consequences of any interruptions or errors.
8.4 The Service may include gateways, links or other functionality that allows Subscriber and its Authorized Users to access third party services (“Third Party Services”) and third party content and materials (“Third Party Materials”). NESAD™ does not supply and is not responsible for any Third Party Services or Third Party Materials which may be subject to their own end-user agreements, privacy and security policies, and terms of use, nor does NESAD™ make any representation as to the accuracy of any Third Party Materials, including those that are hosted by NESAD and/or accessible via NESAD’s Map Search™ database.
8.5 OTHER THAN THE FOREGOING WARRANTIES AND OBLIGATIONS UNDER THIS AGREEMENT, AND, SUBJECT TO THE SERVICE LEVEL OBJECTIVES IN THIS AGREEMENT, ALL SOFTWARE AND PLATFORM IS PROVIDED “AS IS,” AND NESAD™ DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, MERCHANTABILITY FOR COMPUTER PROGRAMS, AND INFORMATIONAL CONTENT.
9.0 INFRINGEMENT; INDEMNITY.
9.1 NESAD™ will defend Subscriber against any claims made by an unaffiliated third party that the Platform infringes that third party’s patent, copyright or trademark or makes unlawful use of its trade secret, incurred as a result of a breach by NESAD™ of any warranty it makes hereunder which has resulted in a final judgment or has been settled with NESAD™’s consent (which shall not be unreasonably withheld) except, where the claim arises out of or results from Subscriber’s use of: (i) Subscriber’s content or other third-party materials not provided by NESAD™; (ii) modifications to any aspect of the Platform, or combination of any such materials with materials created by or for Subscriber where the use of such Platform materials would have been non-infringing otherwise, (iii) Subscriber’s use of the Platform in violation of this Agreement; and (iv) Subscriber’s use of a NESAD™ trademark without NESAD™’s express written consent, or Subscriber’s use of the Platform after NESAD™ notifies Subscriber to stop due to a third-party claim.
9.2 Subscriber will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data. Subscriber will defend NESAD™ against any claims made by an unaffiliated third party that any Subscriber Data, Non-NESAD™ software, data, products, or services Subscriber provides, directly or indirectly, in using the Platform infringes the third party’s patent, copyright, or trademark or makes unlawful use of its trade secret; or (2) arises from violation of this Agreement or the Terms of Service applicable to Subscriber’s use of the Platform.
9.3 If NESAD™ reasonably believes that a claim under Section 9.1 may bar Subscriber’s use of the Platform, NESAD™ will seek to: (i) obtain the right for Subscriber to keep using it (ii) modify or replace the Platform (or the allegedly infringing element thereof) with a functional equivalent and notify Subscriber to stop use of the prior version of the Platform or the applicable element. If these options are not commercially reasonable, NESAD™ may terminate Subscriber’s rights to use the Platform and then refund any advance payments for unused Subscription rights.
9.4 Each Party must notify the other promptly of a claim under this Section 9. The Party seeking protection must (i) give the other sole control over the defense and settlement of the claim; and (ii) give reasonable help in defending the claim. The Party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties’ respective rights to defense and payment of judgments (or settlement the other consents to) under this Section 9 are in lieu of any common law or statutory indemnification rights or analogous rights, and each Party waives such common law or statutory rights.
10.0 LIMITATION OF LIABILITY
10.1 Limitation. The aggregate liability of each Party for all claims under this agreement is limited to direct damages up to the amount paid under this Agreement for the Service during the 12 months before the cause of action arose; provided, that in no event will NESAD™’s aggregate liability for any online service exceed the amount paid for that online Service during the Subscription.
10.2 NESAD™ Document Usage and Liability Limitations. Neither Party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the Party knew they were possible or reasonably foreseeable. Subscribers agree and understand that all documents obtained directly from the NESAD™ deposit-archive are for informational purposes only and are not intended for, and are not presented as or represented for, due diligence or other reliance purposes. Any Subscriber reliance on NESAD™ depository-archive documents is done so at their sole potential peril, and Subscriber agrees to hold harmless and actively seek to defend NESAD™, its officers, related entities, and all Subscribers, their officers, and all related entities that have documents deposited in NESAD™ against all claims or loss without limitation from the use or reliance thereupon.
10.3 Consequential Damages. Neither Party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the Party knew they were possible or reasonably foreseeable.
10.4 Exceptions to Limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the Parties’ obligations under Section 9; or (2) violation of the other Party’s Intellectual Property rights.
11.0 GENERAL
11.1 Assignment. Neither Party may assign this Agreement, in whole or in part, without the other Party’s written consent, which consent shall not be unreasonably withheld, except that no such consent will be required in connection with a merger, reorganization, transfer or sale of all, or substantially all, of either Party’s assets or those assets directly pertaining to this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of and enforceable against the parties and their respective successors and assigns. Any attempt to assign this Agreement other than as permitted above will be void. This Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
11.2 Amendment. This Agreement may not be altered, amended, or modified, except as set forth herein, or except by written instrument signed by the duly authorized representatives of both parties.
11.3 Governing Law. The parties’ rights or obligations under this Agreement will be construed in accordance with, and any claim or dispute relating thereto will be governed by, the laws of the State of Maryland without regard to principles of conflicts of law. In the event of any court action which may be allowed by this Agreement, the venue of such shall be in the State or Federal Court of Maryland, unless the parties shall otherwise agree.
11.4 No Waiver. Either Party’s failure to enforce strict performance of any provision of this Agreement shall not constitute a waiver of that Party’s right to subsequently enforce such a provision or any other provision of this Agreement.
11.5 Integration. Each Party has independently evaluated the desirability to enter into this Agreement and is not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
11.6 Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a replacement provision.
11.7 Force Majeure. If the performance of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other similar causes beyond the control of such Party, that Party will be excused from such to the extent that it is prevented, hindered or delayed by such causes to the extent the non-performing Party is without fault and uses commercially reasonable efforts to resume performance; provided, however, that if a Party suffering a force majeure event is unable to cure that event within thirty (30) days, the other Party may terminate this Agreement and neither Party shall have any further obligation to the other Party under this Agreement except those provisions that survive the termination of this Agreement.
11.8 Independent Contractors. In all matters relating to this Agreement, Subscriber and NESAD™ shall act as independent contractors and not as principal and agent, employer and employee, partners or joint ventures. Nothing in this Agreement shall be construed to create any other relationship between the parties. Except as may be otherwise expressly permitted hereunder.
11.9 Notices. All notices, demands, requests, or other communications required to be given or sent by either Party will be in writing and will be mailed by first class mail or by courier service, postage prepaid, or transmitted by hand delivery, electronic mail (which shall constitute a writing for purposes of this Agreement), or facsimile (with a confirmation copy sent by first-class mail), addressed as follows:
NESAD™:
Central Depository-Archive Physical Address
National Environmental Site Assessment Depository, Inc. (NESAD, Inc. also works)
1314 Bedford Avenue, Suite 102
Baltimore, Maryland 21208
Central Depository-Archive (Baltimore, MD): (443) 548-3065
Facsimile, Central Depository-Archive (Baltimore, MD): (410) 653-3451
Contact Email Addresses
contact@nesad.us (general communications and contact information)
Registered Subscriber:
To Subscriber at the physical address provided by Subscriber upon creating an account signing up for the Services.
Such notice will be deemed to have been given upon delivery supported by reasonable documentation of delivery occurrence (e.g. signature, fax or email receipt/confirmation), or, if earlier, when received. Either Party may, by giving notice, change its applicable address, email, or other contact information.
11.10 Survival. The provisions of Sections 1, 3.3, 6, 7, 8, 9, 10, and 11 shall survive the expiration or termination of this Agreement.
11.11 No Third Party Beneficiaries. The provisions of this Agreement are solely for the benefit of the parties hereto and are not intended to confer upon any person or entity except the parties hereto any rights or remedies hereunder and there are no third party beneficiaries of this Agreement. This Agreement shall not provide any third person with any remedy, claim, liability, reimbursement, and claim of action or other right in excess of those existing without reference to this Agreement.
11.12 Counterparts. This Agreement may be executed by facsimile or in multiple copies, each of which shall be deemed an original, and all of which taken together will constitute one single agreement.
11.13 Miscellaneous. The terms and conditions of this Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof. Except as provided herein, the rights and remedies of the parties set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity. The headings and other captions in this Agreement are inserted for purposes of convenience only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement. Common nouns and pronouns will be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the context may require.
IN WITNESS WHEREOF, the parties to this Agreement hereby indicate their acceptance of the terms and conditions stated herein by the signatures of their authorized representatives.
AGREED TO AND ACCEPTED:
Registered NESAD™ Subscriber NESAD™, Inc.
By: By:
Name: Name: John W. Weller
Title: Title: Senior Archivist
Date: Date: