AGREEMENT FOR PROVISION OF CONSUMER CONFIDENCE REPORT AND RELATED SERVICES
Gemini Group Consulting, LLC, a Delaware limited liability company (“Provider”, “we” or “us”) is engaged in the business of developing Consumer Confidence Reports pursuant to applicable federal and state regulatory requirements, including the production, printing and dissemination of such reports in accordance with such regulations. This Agreement and the Order Form that precedes it (this “Agreement”) is a binding contract between you (“Customer”, “you” or “your”) and us.
THIS AGREEMENT IS BINDING UPON YOU WHEN YOU CLICK THE “Submit Order Now” BUTTON ON THE “Order Checkout Page”. BY CLICKING ON THE “Submit Order Now” BUTTON YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND, AND HEREBY ARE BINDING THAT ORGANIZATION, AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE CLOSE THIS WINDOW AND THE “Order Checkout Page”. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU WILL NOT RECEIVE A CONSUMER CONFIDENCE REPORT OR ANY RELATED SERVICES FROM US.
1.Definitions.
1.“Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
1.“CCR” means a Consumer Confidence Report required to be delivered pursuant to customers of public water utilities by the U.S. Environmental Protection Agency or any U.S. federal, state, local or municipal public agency or authority.
1.“CCR Deliverable” means a CCR produced by CCReporter in final draft form together with all Customer Data required to be included therein, as specified on the Order Form.
1.“CCReporter” means our proprietary CCR building software to be provided by us pursuant to the terms of this Agreement.
1.“Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, sent, included or otherwise transmitted by or on behalf of Customer or any other Authorized User in connection with or in use of the Services including mailing lists, recipient data, special statements, articles, photos, illustrations, maps, and other text, if any.
1.“Data Deadline” means the earlier of 7 days from the Order Date or the first June 1 after the Order Date.
1.“Documentation” means Provider’s user manuals, handbooks, and guides relating to the CCR provided by Provider to Customer, in any form.
1.“Intellectual Property Rights” means all proprietary and intellectual property rights, including any and all rights of, in and to, wherever existing: inventions, whether patentable or not, patents, patent applications, reissuances, continuations, continuations-in-part, divisionals, revisions, extensions, and reexaminations thereof and corresponding trademarks, service marks, trade dress, logos, brands, trade names, business names, corporate names, domain names and URLs, copyrights, works (whether copyrightable works or uncopyrightable), derivative works, and copies thereof, trade secrets and confidential or proprietary business information (including any ideas, research and development, know-how, formulas, compositions, processes and techniques, technical data, designs, drawings, specifications, pricing and cost information, and business plans and proposals).
1.“Order Form” means the schedule of fees, costs and specific services listed on the “Order Checkout Page”, the terms of which are incorporated into this Agreement by reference.
1.“Provider IP” means CCReporter, the Documentation and all other Intellectual Property Rights of Provider used in connection with the provision of the Services and the CCR Deliverable. For the avoidance of doubt, Provider IP (i) includes any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data, and (ii) does not include Customer Data included or embedded withing the CCR Deliverable.
1.“Services” means access to CCReporter and services provided by Provider under this Agreement as detailed in Section 2.
1.“Sign-off Deadline” means five business days after the delivery of the final proof CCR Deliverable to Customer.
2.Provider Services. Subject to your compliance in full with the terms and conditions of this Agreement, Provider:
2.(a)will grant you access to CCReporter in connection with the production of a CCR Deliverable;
2.(b)will undertake a review of the CCR Deliverable for compliance with applicable state and federal laws, subject to the accuracy and completeness of Customer Data (Standard Service only, as specified on the Order Form);
2.(c)will provide proofreading and editing services for the first proof of the CCR Deliverable to be provided hereunder. Changes or edits requested by you after the first proof, other than those required to correct Provider’s proofreading and editing errors (if any), will be billed at an hourly rate (Standard Service only, as specified on the Order Form);
2.(d)will provide layout, design and printing services for the CCR Deliverable provided hereunder, as specified on the the Order Form;
2.(e)will provide mailing and shipping services of printed CCRs, as specified on the Order Form; and
2.(f)will provide a final CCR Deliverable.
3.Provider Representations and Warranties. Provider hereby represents and warrants to Customer as follows:
3.(a)Provider has all requisite power and authority to enter into this Agreement and perform its obligations hereunder. This Agreement constitutes, upon agreement by Customer by clicking “Submit Order Now” on the “Order Checkout Page”, valid and binding obligations of Provider. The entry into this Agreement has been duly authorized by Provider. Entry into this Agreement will not result in a breach of any agreement or contract of Provider with any other person, nor will it result in an encumbrance over the CCR Deliverable to be provided hereunder.
3.(b)Provider has the right to license CCReporter and all Provider IP to the extent included in a CCR Deliverable to Customer. Subject in all respects to (x) Customer’s correct operation of CCReporter in accordance with Provider’s written instructions, (y) Customer’s compliance with the terms hereof, and (z) the truth and accuracy of Customer’s representations and warranties herein, including with respect to the accuracy and completeness of Customer Data in Section 4(c) below, CCReporter in conjunction with the other Services to be provided hereunder can produce the CCR Deliverable in a format that is compliant with applicable laws and regulations.
4.Customer Representations and Warranties. Customer hereby represents and warrants to Provider as follows:
4.(a)Customer has all requisite power and authority to enter into this Agreement and perform its obligations hereunder. This Agreement constitutes, upon agreement by Customer by clicking “Submit Order Now” on the “Order Checkout Page”, valid and binding obligations of Customer. The entry into this Agreement has been duly authorized by Customer. Entry into this Agreement will not result in a breach of any agreement or contract of Customer with any other person, nor will it result in an encumbrance over Customer’s properties or assets (including Customer Data).
4.(b)Customer owns, or has a legal right to use as contemplated by this Agreement, all right, title, and interest, including all intellectual property rights, in and to Customer Data. The Customer Data and Customer’s use of Customer Data under this Agreement is in compliance with any applicable federal, state or local law or any contract to which Customer may be bound.
4.(c)All Customer Data provided by customer is true, correct, complete, and not misleading in any material respect. There are no material omissions from the Customer Data such that at the time such Customer Data is to be provided to Provider or used in CCReporter, or at the time the CCR Deliverable is to be provided hereunder, the CCR Deliverable will be wrong, incorrect, incomplete, deficient or misleading in any respect.
4.(d)Customer understands and agrees that Provider is not a law firm or an attorney, may not perform services performed by an attorney with respect to compliance with applicable U.S. federal, state, municipal or other local laws governing the production and distribution of CCRs, and Provider’s CCRs and the CCR Deliverable is not a substitute for the advice or services of an attorney. No attorney client relationship, privilege or work product is created by Provider hereunder. Customer has received all legal advice necessary to ensure that the Customer Data is complete and that the CCR Deliverable to be provided hereunder is compliant with all applicable laws or regulations.
4.(e)Customer acknowledges and agrees that in entering into this Agreement it has not relied and is not relying on any representations, warranties or other statements from Provider or any person acting on its behalf whatsoever, whether written or oral, other than those expressly set out in this Agreement, and that it will not have any right or remedy rising out of any representation, warranty or other statement not expressly set out in this Agreement.
5.Customer Responsibilities.
5.(a)Customer shall submit all Customer Data and other information required by Provider to produce the CCR Deliverable by the Data Deadline. Any delay in providing all of such information by the Data Deadline may extend the time required for Provider to complete its Services as set forth herein, which may result in the CCR Deliverable being delivered later than July 1 of the applicable reporting year.
5.(b)Customer shall sign off on the final proof of the CCR Deliverable on or before the Sign-off Deadline. If Customer fails to meet its deadlines set forth herein, Provider will use commercially reasonable efforts to provide the Services in such manner so as to enable Customer to meet its July 1 deadline. If Customer has a specific date at which time the CCRs must be printed and delivered, other than the stated July 1 deadline, “out-of-cycle” surcharges may apply, as set forth in the Order Form or as may be separately communicated by Provider to Customer.
5.(c)Customer shall provide Provider with addresses of its customers in electronic files in a delimited format or a list of zip code(s) for a general resident list mailing.
5.(d)Customer is responsible for submitting compliance documentation to primacy agencies on behalf of Customer, and Provider shall not be responsible for this unless specified on the Order Form.
5.(e)Customer is responsible and liable for all uses of the CCR Deliverable and other documentation resulting from the Services, directly or indirectly, whether such use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Customer and its Authorized Users, including, with respect to a CCR Deliverable produced hereunder, including any inadequacies or failures to comply with applicable federal, state, municipal or other local laws or regulations to the extent such inadequacies or failures to comply arise out of acts or omissions by Customer, its Customer Data, its Authorized Users or its agents or representatives.
6.Fees. Customer shall pay Provider the fees as described on the Order Form within 30 days of the Order Date. If Customer fails to make any payment when required, Provider may charge interest at a rate equal to the maximum interest rate permitted by applicable law on any unpaid fees, cease to provide any Services hereunder until all such outstanding fees are paid. All fees payable hereunder are exclusive of all taxes and assessments. Customer is responsible for payment of all of its sales, use, exercise or any other similar taxes and assessments with respect to the Services, other than taxes imposed on Provider’s income or sales.
7.Term. The term of this Agreement begins on the Order Date and continues until the completion of the provision of the Services pursuant to Section 2. Provider shall have the right to terminate this Agreement immediately by delivery of written notice to Customer for the non-payment of any fees more than 15 days past due. Upon the termination of this Agreement, this Agreement shall cease and be of no further force or effect; provided, however, that (i) the provisions of Sections 1, 3, 4, 5(e), and 9 through 15 hereof shall survive the termination of this Agreement, and (ii) Provider’s right to payment for Services provided prior to the date of termination shall survive the termination of this Agreement.
8.Refunds. All Services and the CCR Deliverable provided hereunder are final. If Customer fails to provide the necessary Customer Data to enable us to perform the Services or provide the CCR Deliverable by the Data Deadline, Customer will be considered to have abandoned and terminated this Agreement, and no refund shall be issued hereunder.
9.Intellectual Property; Privacy.
9.(a)As between you and us, (a) we and any of our licensors (if any) own all right, title, and interest, including all Intellectual Property Rights, in and to Provider IP and (b) you own all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data. You hereby acknowledge and agree that, except for Customer Data embedded or included in the CCR Deliverable, the CCR Deliverable provided hereunder includes and is derived from Intellectual Property Rights of Provider, and Provider hereby retains all right, title and interest in such Intellectual Property Rights (subject to the license granted to you in Section 9(c) below). If you are a government end user of CCReporter, to the greatest extent permissible pursuant to applicable U.S. Federal, state, municipal or local law, your rights to CCReporter or any other Provider IP shall be limited to those specific, enumerated rights set forth in this Agreement.
9.(b)You hereby grant us a limited, non-exclusive, non-transferable, worldwide, non-sublicensable, royalty free license to use your Customer Data and your CCR Deliverable in connection with (i) the provision of the CCR Deliverable hereby and the performance of Services hereunder, (ii) making CCReporter available to you in connection with this Agreement, and (iii) making improvements to CCReporter. In connection with this license, we may publish or distribute your Customer Data, so long as you have already published it or you give your consent for us to publish or distribute it, and we shall have the right to modify it or create derivative works from your Customer Data in connection with the provision of Services hereunder.
9.(c)Subject in all respects to your compliance in full with the terms and conditions of this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable limited license to (i) use Provider IP in connection with the production of a CCR Deliverable and the distribution of a CCR Deliverable to your end customers, and (ii) Provider IP to the extent included in a final CCR Deliverable provided hereunder. None of the Customer or any of its Authorized Users their affiliates will modify any Provider IP, sell or rent copies of Provider IP or use Provider IP to process or produce CCRs for third parties. At the completion of the Services to be provided hereunder, you will destroy or return to Provider all copies of Provider IP in your possession except for the CCR Deliverable.
9.(d)Except for the licenses granted in this Section 9, each party shall retain and retains each, and does not transfer, convey, assign or grant, and nothing in this Agreement or its performance shall be construed to constitute any transfer, conveyance, assignment or grant of any, right, title, interest, license, grant, expectation or entitlement, in or to any of its Intellectual Property Rights.
9.(e)The ownership rights, title and interest with respect to any Intellectual Property Rights created in the Services and any modifications, alterations, changes, derivatives, enhancements, improvements and derivative works thereof are and shall remain the sole and exclusive property of Provider, except to the extent constituting Customer Data, which shall be the sole and exclusive property of Customer.
9.(f)Provider respects your privacy and is committed to protecting it. Provider’s Privacy Policy (which is available at gemgrp.com) governs the processing of all personal data collected from you in connection with the provision of Services or a CCR Deliverable hereunder, and is incorporated into this Agreement by reference.
10.Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider, its affiliates and their respective officers, directors, managers, employees, attorneys, agents, successors, and assigns from and against any and all losses, damages, costs, liabilities, charges, third-party claims and expenses (including reasonable, outside attorneys’ fees, whether or not litigation is commenced) (“Losses”) arising from or relating to (i) Customer’s or its Authorized User’s breach of this Agreement, (ii) any third-party claim, suit, action, or proceeding (a “Third-Party Claim”) that the Customer Data, any use of the Customer Data in accordance with this Agreement, or any CCR Deliverable as derived from Customer Data, infringes or misappropriates such third party’s Intellectual Property Rights, (iii) arising out of incorrect, incomplete or otherwise misleading facts, information, data or otherwise provided to Provider in connection with the Services hereunder, including Customer Data, or (iv) Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
11.Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE; OR (f) LOSSES ARISING OUT OF OR ATTRIBUTABLE TO THE ACTIONS OR OMISSIONS OF THE UNITED STATES POSTAL SERVICE OR ANY OTHER SIMILAR MAILING OR COURIER SERVICE PROVIDER. WITHOUT LIMTIATION OF THE FOREGOING, PROVIDER SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES IN CONNECTION WITH THE PROVISION OF THE SERVICES OR THE CCR DELIVERABLE EXCEPT TO THE EXTENT RESULTING FROM PROVIDER’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS OF FEES PAID TO PROVIDER UNDER THIS AGREEMENT. PROVIDER MAKES NO WARRANTIES WITH RESPECT TO THE PROVISION OF SERVICES UNDER THIS AGREEMENT OR THE PERFORMANCE OF PROVIDER’S OBLIGATIONS HEREUNDER, OTHER THAN THOSE SET FORTH IN SECTION 3, AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS, STATUTORY, IMPLIED OR ARISING BY INDUSTRY CUSTOM OR COURSE OF DEALING, INCLUDING ANY AND ALL WARRANTIES OF QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, WORKMANSHIP, TITLE OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED.
12.Governing Law; Arbitration; Waiver of Jury Trial.
12.(a)This agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
12.(b)EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO LITIGATE CLAIMS IN A COURT OR IN TRIAL BEFORE A JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. Any dispute, controversy, or claim between or among you and the Company with respect to the terms of this Award Agreement, including, without limitation, any dispute, controversy, or claim arising out of, under, pursuant to, or in any way relating to this Agreement, including but not limited to, claims relating to breach, interpretation, applicability, enforceability, formation, or validity of this Agreement or any provision hereof, including, without limitation, the determination of the scope or applicability of this Agreement to arbitrate, shall be submitted to and resolved exclusively by confidential and binding arbitration under the auspices of the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures, with such arbitration conducted in Chicago, Illinois pursuant to the Federal Arbitration Act and such rules of the AAA then in effect by one experienced arbitrator selected in accordance with such rules. The arbitrator is empowered to grant whatever relief would be available in court under law or in equity in accordance with the terms hereof. Any award of the arbitrator is final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
13.Confidential Information. From time to time, Provider and Customer (including its Authorized Persons) may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media and, whether or not, marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
14.Modifications. No amendment, modification or discharge of this Agreement is effective unless it is in writing, and signed by an authorized representative of each party.
15.Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices pursuant to this agreement must be sent to each Party’s address as designated by each party from time to time in writing, which must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder. Customer and Provider intend that an independent contractor relationship be created by this Agreement, and nothing herein shall be construed as creating an employer/employee relationship, partnership, joint venture or other business group. Neither party nor any of its affiliates shall have the authority to bind the other.
16.Force Majeure. Neither party shall be liable for any interruption, delay or failure to perform any obligation under this Agreement resulting from causes beyond its reasonable control (or beyond the reasonable control of any person acting on its behalf), including any strikes, lockouts, acts of any government, riot, insurrection or other hostilities, acts of the public enemy or terrorism, embargo, fuel or energy shortage, fire, flood, earthquake, tsunami, pandemic or acts of God (any such event, a “Force Majeure Event”). In the event of a Force Majeure Event, each party’s affected obligations hereunder shall be postponed for such time as its performance is suspended or delayed on account thereof.
If you have any questions with respect to this Agreement, please contact info@gemgrp.com.