1. DEFINITIONS.
“Affiliate” shall mean an entity controlling, controlled by or under common control with that party.
“Aggregate Data” means Customer-Supplied Data that has been aggregated and de-identified using commercially reasonable practices such that it cannot reasonably be used to identify a particular individual natural person.
“Agreement” means the Co-Services Agreement together with these Co-Services Terms & Conditions.
“Co-Mail Services” means KODI’s cooperative mailing program which merges individual mail files into large quantity mail pools to create efficiencies in postal pre-sort and to help drive postal savings for KODI customers. Co-Mail Services include all of the work, including shipping, required to produce an applicable Co-Mail pool and to transport Customer product from an KODI production facility to the applicable USPS drop point.
“Co-Mail Agreement” means the Co-Mail Agreement executed by the Parties.
“Customer Product” means the Customer material which is submitted for participation in KODI’s Co-Mail Services program.
“Customer-Supplied Data” means the data and information supplied by Customer under the Agreement, including but not limited to, name and address files for Customer clients.
“Data Delegation Form” means the Informed Visibility Mail Tracking & Reporting Data Delegation Request Form which is required as part of Customer onboarding for the Co-Mail program.
“Effective Date” shall be the date the Co-Mail Agreement is signed by both Parties.
“Prudent Industry Practices” shall mean that level of skill and diligence to be expected in the postal optimization industry in performance of activities similar to the Services.
“Services” means Co-Mail Services, Transportation Services, and any other services performed by KODI under the Co-Mail Agreement.
“Transportation Services” means transportation and associated services of Customer Product to and from the location of origination, any KODI processing center, and the applicable US Postal Service destination point.
2. KODI SCOPE OF WORK.
KODI shall perform the Services for Customer as provided in the Agreement. Transportation Services shall be provided in accordance with the Transportation Services terms and conditions attached hereto as Attachment 1.
3. CUSTOMER OBLIGATIONS.
In addition to other Customer obligations contained herein, Customer shall execute a Data Delegation Form and shall comply with all requirements of the Co-Mail Guide (insert link) and Co-Mail Schedule (insert link), which may be updated from time to time by KODI.
4. TERM OF AGREEMENT.
The initial term shall commence on the Effective Date and shall expire on December 31 of that year (the “Initial Term”). Upon expiration of the Initial Term, this Co-Mail Agreement shall be renewed from year to year thereafter on January 1, unless either party gives written notice to the other party, no later than forty-five days prior to the expiration of the then-current term, with such termination to become effective on December 31 of the then-current year.
5. TERMINATION.
(a) Termination for Default or Insolvency. Either party may terminate this Agreement for default if the other party
(i) fails to make any payment when due and fails to cure such non-payment within fifteen (15) days after written notice from the non-breaching party, or
(j) makes an assignment in violation of Article 15 (Assignment);
(k) materially breaches any non-payment related obligation which does not have a stated remedy and fails to remedy such material breach within sixty (60) days after written notice from the non-breaching party or, if it is not possible to cure such breach within sixty (60) days, fails to commence to cure the breach within thirty (30) days,
(l) becomes insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of creditors, permits the appointment of a receiver for its business or assets, becomes subject to any legal proceeding relating to insolvency, reorganization or the protection of creditors' rights or otherwise ceases to conduct business in the normal course. For any default, other than a default for payment, this provision for termination for default may only be exercised by notice in writing within ninety (90) days of the event giving rise to the default, effective thirty (30) days from such written notice.
In the event of a termination for default or insolvency by Customer for default or insolvency of KODI, Customer shall pay KODI Customer shall pay KODI all payments required under this Agreement for KODI’s performance prior to the effective date of such termination and all payments due prior to such termination effective date.
(b) Other Termination Rights. Either Party may terminate this Agreement as provided in Section 12 (Changes) and Section 13 (Force Majeure) upon written notice, provided that, the termination shall become effective fifteen (15) days after the non-terminating party’s receipt of the termination notice. Customer may terminate as provided in 6(b)(iii) (Customer Termination for Convenience). Customer shall pay KODI all payments required under this Agreement for KODI’s performance prior to the effective date of such termination and all payments due prior to such termination effective date.
6. PRICING, ADJUSTMENTS & TAXES.
(a) Pricing.
During the initial term, Customer shall pay KODI for the Services in accordance with the pricing listed in the Co-Mail Agreement, including the pricing for Transportation Services included in Attachment 1 to the Co-Mail Agreement, and subject to the terms and conditions of these Co-Mail Terms & Conditions. Each November 1 after the Initial Term Effective Date, KODI shall publish the pricing which will apply to Services performed in the following calendar year, beginning on January 1. Notwithstanding the foregoing, KODI may also implement price adjustments from time to time during a calendar year in accordance with Sections (b)(i) and (ii) below.
(b) Price Adjustments
(i) Co-Services Pricing Adjustments. In addition to adjustments in accordance with Section 12 (Changes), the Co-Mail Services pricing may be adjusted from time to time in connection with changes in market conditions (including labor costs) and/or in USPS program rules, requirements, rates and/or regulations, and similar types of changes or impacts. KODI will provide Customer a minimum of thirty (30) days prior written notice of any such a change.
(ii) Transportation Services Pricing Adjustments. KODI will periodically review and adjust the pricing for Transportation Services set out in Attachment 1 to the Co-Mail Agreement, in connection with changes in transportation market conditions, Customer's distribution pattern, Customer’s volume, changes in USPS or other rates or regulations, or similar types of changes or impacts. KODI will provide Customer a minimum of thirty (30) days prior written notice of any such change.
(iii) Customer Termination for Convenience. Customer may terminate this Agreement by providing written notice to KODI within thirty (30) days after receipt of an adjusted pricing notice under (i) or (ii) above, provided that, termination shall become effective sixty (60) days after KODI’s receipt of the termination notice, and Customer’s payment of all amounts due for work performed as of the termination effective date. For the avoidance of doubt, in the event Customer provides a written notice of termination as provided herein, the original, unadjusted pricing shall remain in effect through the effective date of the termination, unless Customer fails to pay all amounts due by the termination effective date, in which case, the adjusted rates will apply up to and including the date when all amounts are paid and the termination becomes effective. In the event of termination as provided herein, Customer shall be responsible for all charges related to removal of Customer product existing at an KODI facility at the time of termination, including but not limited to, staging, handling, storage and similar charges.
(c) Taxes. Any sales, retailer’s occupation, service occupation, value added or use tax imposed on account of this transaction will be added as an extra charge.
7. TERMS OF PAYMENT, DISPUTED PAYMENTS.
(a) Payment for Services. Customer shall pay KODI, without setoff, all amounts due for Services performed under this Agreement within fifteen (15) days of the date of an applicable invoice. Co-Mail and Transportation Services are not eligible for terms or early pay discounts, rebates or similar types of discounts. Invoices shall be issued as Services are performed. All payments will be made in U.S. dollars by check or electronic transfer to KODI’ designated bank account. KODI’ obligation to perform work hereunder is subject to timely payment of all invoices. In addition to KODI’ remedies contained in Section 5 (Termination), if Customer fails to pay KODI as required herein, Customer agrees to pay interest at the rate of one and one-half percent (1½ %) per month, or the lawful limit if less, on all amounts past due as well as all charges of collection including but not limited to reasonable attorney's fees. Failure to bill for interest due shall not constitute a waiver of KODI' right to charge interest.
(b) Payment for US Postal Service Charges. Customer shall establish an account with the United States Post Office that can receive electronic funds transfers (such as an Enterprise Payment System (EPS) account) with sufficient funds to cover all estimated postage charges, in advance of the mailing date of each issue. Customer shall be responsible for and shall pay directly to the US Postal Service all amounts due for postage on Items sent through the US Postal Service under this Agreement. Customer shall also be responsible for, and shall pay directly, all amounts charged by the US Postal Service for permits.
(c) Disputed Payments. Should any portion of an invoice become disputed, Customer shall promptly pay the undisputed portion of such invoice Customer shall notify KODI in writing no later than five (5) business days from receipt of an invoice if Customer disputes any portion of an invoice. Both parties agree to use their best efforts to resolve the disputed portion of the invoice promptly. KODI may have the right to change the terms of payment if there should be a substantial adverse change in Customer's credit standing or in the event that Customer does not comply with the terms of these provisions. In such event, KODI' obligation to perform further work will be subject to reaching mutual agreement on revised terms
8. PAYMENT SECURITY.
As security for payments of any sum due or to become due KODI under the terms of this Agreement, KODI shall have the right, if necessary, to retain possession of, and shall have a lien on all property owned by Customer and in KODI' possession, and all work in process and undelivered work.
9. REPRESENTATIONS.
(a) Customer represents that it has the right to disclose Customer Supplied Data to KODI.
(b) Customer represents and warrants that the Customer Product does not (i) violate any applicable laws, including without limitation those concerning labeling, packaging or distribution, (ii) infringe any copyright, or otherwise violate the rights of or will cause damage or injury to other persons, and Customer agrees to indemnify and save KODI harmless from all losses, damages and expenses, including attorneys' fees, which KODI may suffer as the result of any such claim, damage or injury.
(c) Customer shall comply with the Co-Mail Guide and any applicable Postal Service requirements. KODI shall not be liable to Customer for any damages or claims whatsoever because of Postal Service rejection of mail by reason of sortation errors in any manner attributable to Customer’s noncompliance with the Co-Mail Guide requirements, this Agreement and/ or applicable Postal Service requirements.
10. WARRANTY & GUARANTEE.
(a) Warranty. KODI warrants to Customer that the Services shall be performed in a competent, diligent and workmanlike manner and in accordance with Prudent Industry Practices. The foregoing warranties shall expire sixty (60) days after KODI’ completion of the Services, which shall be the date when KODI delivers the Customer Product to the USPS drop point. All warranty claims must be made by Customer in writing fully setting forth the nature of the alleged defect no later than thirty (30) days after the expiration of the warranty period.
(b) Warranty Remedy. If a failure to meet the foregoing warranties is discovered during the warranty period, Customer shall notify KODI in writing and KODI shall correct the defect by, at its option, re-performing the defective Service, or issuing a credit against the next occurring invoice in an amount equal to the price Customer paid for the Services, provided that, a defect affecting five percent (5%) or fewer of the total Customer Product mailed in an applicable pool shall not trigger KODI’ obligation to provide a warranty remedy.
The preceding paragraphs of this Article 10 set forth the exclusive remedies for all claims based on failure of or defect in the Services or KODI’ performance under this Agreement, whether the failure or defect arises before or during the applicable warranty or guarantee period and whether a claim, however instituted, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The foregoing warranties are exclusive and are in lieu of all other warranties, whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
11. RISK OF LOSS.
Risk of loss shall pass to Customer upon delivery of the Customer Product to the US Postal Service shipping point.
12. CHANGES.
KODI’s performance of the Co-Mail Services is based on applicable laws, rules, regulations and operating programs of the US Postal Service in effect as of the Effective Date of the Agreement and each subsequent term, as applicable. In addition to 6(b) (Price Adjustments), in the event there are any changes, after the Effective Date, in any laws, rules, regulations, changes in US Postal Service operations, programs and/or requirements which affect the performance of the Services by KODI, including prices and schedule, KODI may, in its sole discretion, make such adjustments as may be necessary as a result of the same, including but not limited to, changes to the schedule, delivery and other KODI obligations, including termination of the Co-Mail Services program (the “Changes”). KODI shall provide Customer with at least thirty (30) days advance written notice of such Changes. In the event Customer objects in writing to a Change (other than a termination of the Co-Mail Services program), no later than 30 days after receipt of the Changes Notice (the “Changes Objection Notice”), KODI and Customer shall meet, within ten days of KODI’s receipt of the Changes Objection Notice (or such other time as the parties may mutually agree) to negotiate in good faith to reach agreement on the Changes. If the Parties cannot reach mutual agreement on the Changes within thirty days of KODI Changes Notice (or such other date as the parties may mutually agree), either Party may terminate this Agreement as provided in Section 5(b) (“Other Termination Rights”). In the event KODI terminates its Co-Mail Services Program in connection with a change in any laws, rules, regulations, changes in US Postal Service operations, programs and/or requirements, KODI shall not be required to meet with Customer and negotiate in good faith and KODI may terminate this Agreement in accordance with Section 5(b) (Other Termination Rights).
13. FORCE MAJEURE.
Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance or be considered to be in breach under this Agreement due to any cause beyond its reasonable control, acts of war (declared or undeclared), armed conflict, acts or threats of terrorism, civil unrest, acts of God, earthquakes, floods, severe weather conditions, fires, epidemics, pandemics, embargoes, riots, sabotage, labor shortages, disputes, disturbances or strikes, actions or (failure to act) of governmental authorities or third parties not engaged by the Party claiming Force Majeure, delays in transportation, failure of the Internet or the unavailability of materials, purchased services (including transportation), utilities or fuel, provided that the delayed party gives the other party prompt notice of such cause. If KODI is unable to perform as a result of any such cause, KODI will perform such parts of the work as it is capable of performing, and if Customer places any other part of the work elsewhere, KODI shall be entitled to resume the work as promptly as practicable. The occurrence of a Force Majeure does not excuse any delay or failure by Customer to make any payment due under the Agreement except to the extent the Force Majeure event directly delays or prevents the transmission of the payment itself. In the event of a Force Majeure continuing for one hundred eighty (180) days which impacts KODI’ ability to perform the Services, either party may terminate this Agreement as provided in Section 5(b) (Other Termination Rights)
14. LIMITATION OF LIABILITY.
THE TOTAL LIABILITY OF KODI, ON ANY CLAIM OF ANY KIND ARISING OUT OF THE PERFORMANCE OR BREACH OF THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE INVOICE FOR THE SERVICES GIVING RISE TO THE CLAIM, PROVIDED THAT, KODI’S TOTAL LIABILITY UNDER THE AGREEMENT, UNTIL THE TIME ALL SUCH LIABILITY SHALL END, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO KODI UNDER THE AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL KODI LIABILITY SHALL END UPON EXPIRATION OF THE APPLICABLE WARRANTY PERIOD AND, IN NO EVENT, LATER THAN SIX MONTHS FOLLOWING THE TERMINATION OR EXPIRATION OF THIS AGREEMENT, WHICHEVER IS EARLIER.
IN NO EVENT SHALL KODI BE LIABLE FOR LOSS OF PROFIT, REVENUES OR SALES, LOSS OF USE OF CUSTOMER PRODUCT, COST OF CAPITAL, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS, CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES.
THE LIMITATIONS AND EXCLUSIONS IN THIS ARTICLE SHALL APPLY REGARDLESS OF WHETHER A CLAIM IS BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT/EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE PROVISIONS OF THIS ARTICLE 14 SHALL PREVAIL OVER ANY CONFLICTING OR INCONSISTENT PROVISION CONTAINED IN ANY OF THE DOCUMENTS COMPRISING THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH PROVISIONS FURTHER RESTRICT KODI’S LIABILITY.
15. ASSIGNMENT.
Neither party may assign this Agreement without the other party’s prior written consent, such consent not to be unreasonably withheld, provided that, either party may, without the other party’s consent, transfer by way of assignment or novation all or any portion of its rights and obligations under this Agreement to (1) an Affiliate and/or (2) an entity acquiring all or a controlling interest in the assigning party or its parent company, provided that in both cases, (a) the assigning party provides the non-assigning party written notice of the proposed transfer, (b) the assignee has the legal and financial ability to perform the assigning party’s obligations under this Agreement, and (c) the assignee agrees to assume all of assigning party’s obligations under this Agreement. Any assignment or purported assignment in contravention of this Article 15 shall be null and void and shall be subject to Article 5 (Termination).
Nothing in this Article 15 shall restrict KODI from subcontracting portions of the Services, provided that KODI shall remain responsible to Customer for performance of the subcontracted scope.
16. CONFIDENTIALITY, DATA OWNERSHIP & USAGE.
The Parties hereby agree that the terms of this Agreement, including without limitation, the existence of this Agreement, and any written or oral information disclosed by any Party in connection with Agreement is considered the Parties’ joint confidential information and shall not be disclosed or otherwise revealed to any third party without the express written consent of the other Party, except to the extent required by law, or for the enforcement of this Agreement. Notwithstanding anything to the contrary herein and to the extent permitted by applicable law, Customer consents to KODI’s use of Customer-Supplied Data (i) to perform the Services and (ii) to create and use Aggregate Data, including information derived from and/or generated by the Services. Customer acknowledges that KODI will use the Aggregate Data by itself and combined with other sources and types of data, to modify, create, develop and improve the Services and other existing and new KODI products and services.
17. OTHER PROVISIONS.
Governing Law & Dispute Resolution. This Agreement shall be governed by the laws of the State of Delaware, without giving effect to any choice of law rules which would cause the application of laws of another jurisdiction. All disputes arising in connection with this Agreement shall be resolved in the state or federal courts located in the State of Delaware having jurisdiction over the subject matter and the Parties.
Entire Agreement. The provisions set forth in this Agreement represent the entire agreement between the Parties in relation to the matters contained herein. Any oral or written representation not contained or referenced in the Agreement shall not be binding on any Party. Each Party agrees that it has not relied on, or been induced by, any representations of any other Party not contained in this Agreement. No rights or obligations other than those expressly set forth herein are to be inferred from this Agreement, and the rights and remedies set forth in this Agreement are the exclusive rights and remedies of each party with respect to this Agreement, its performance or breach. , and the rights and remedies set forth in this Agreement are the exclusive rights and remedies of each party with respect to this Agreement, its performance or breach.
Severability. If any one or more of the provisions of this Agreement should be ruled illegal, wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction under present or future laws, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable shall be unaffected and remain in full force and effect and (ii) the effect of the ruling shall be limited to the jurisdiction of the court or other government body making the ruling, (iii) the provisions held illegal, wholly or partly invalid or unenforceable shall be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the Parties’ intent as manifested herein. Notwithstanding the foregoing, if KODI deems the unenforceable provision to be essential to this Agreement, KODI may terminate this Agreement, effective immediately upon notice to Customer.
[End of Document]
Proud brand of CJK Group
Proud brand of CJK Group
