VitalECM®

Project Based Scanning and Enterprise Content Management Digital Services

STANDARD TERMS APPLICABLE TO ANY STATEMENT OF WORK

VRC Companies, LLC.[1], dba Vital Records Control (“VRC”) or VitalECM® (“VitalECM”), shall provide for various records management, storage, scanning, and other digitally related services as further defined herein, to Customer identified above (each a “Party” and collectively the “Parties”) in accordance with the standard terms and conditions as set forth in this agreement (“Agreement”). As and when requested by Customer, VitalECM will: (a) provide scanning and digital image conversion (‘Imaging Services”) of Customer’s files, documents, and records (cumulatively hereafter referred to as “Source Materials”) to create digital renditions thereof (“Image Files”), (“Source Materials” and “Images Files” also collectively referred to herein as “Deposits” when such are designated for storage under instructions as set forth hereunder) at either VitalECM’s Service Bureau or at Customer’s locations, and (b) in connection with such scanning and digital image conversion, provide other related services, including but not limited to, electronic storage of Image Files via VitalECM’s secure storage repository (“Repository Services”), each as described in hereunder, and in any Statement of Work (as defined below and hereafter “SOW”), (collectively “Services”). The quantity and specifications of work performed by VitalECM in the rendering of Services (“Specifications”), and fees and fee applications for Services (“Fees”) shall be as set forth in any SOW properly executed by and between VitalECM and Customer. Customer anticipates engaging VitalECM to perform such Services that are either (i) recurring in nature and where agreement has been reached through an SOW to invoice Customer on a monthly interval (“Recurring”), or (ii) are specific to an SOW and it’s discrete project (a “Project”) where it is agreed to in the SOW that Customer is to be invoiced at the completion of the Project.

1. STATEMENT OF WORK.

The Parties hereto acknowledge that the Specifications and Fees of any additional Services requested by Customer may differ significantly from one another, and as such may necessitate the need to memorialize such additional or varying Specifications and Fees for such Services in a Statement of Work (“SOW”). Customer may engage VitalECM to perform additional Services for a Project and/or for Recurring Services, through an SOW which shall be prepared by VitalECM and approved by Customer in advance of the initiation of such additional Services.  Each SOW executed either concurrently with, or after the acceptance of this Agreement also incorporates the terms, conditions, and Specifications as set forth hereunder, without the need to incorporate or reincorporate the same terms and conditions in any particular SOW.

2. SPECIFICATIONS AND FEES.

Specifications and Fees for Services, including but not limited to (a) the performance of Imaging Services and output requirements, (b) the transportation of Source Materials, and (c) the transfer of Image Files associated with the performance of the Imaging Services from VitalECM to the Customer (d) the disposition of Source Materials subsequent to completion of Imaging Services, and (e) the use of Repository Services, shall each be as set forth herein and/or as set forth in any SOW. VitalECM shall perform the Imaging Services and transfer Image Files to Customer by the completion date or within the turnaround time requirements set forth pursuant to the Fees and Specifications as set forth in such SOW. Turnaround time is defined as working days, excluding weekends, and VitalECM observed holidays. Customer shall provide reasonable written notification when requesting Imaging Services to be performed outside normal working hours, on weekends or on VitalECM observed holidays. Customer acknowledges that, from time to time, while VitalECM is performing the Imaging Services for a particular Project, it may encounter complications which it could not reasonably contemplate or anticipate at the time the Specifications were agreed to by the Parties, including but not limited to a change in the quality of the Customer’s source Materials, a variance in workflow, or a significant change in the volume of work.  In such instances, the parties hereto acknowledge and agree that this may result in the need to renegotiate the Specifications and/or Fees.  In such event the parties hereto agree to the provisions as set forth in Section 5 “Modification of Services” below, and to work together in good faith, in the renegotiation of the Fees for a particular Project. The Specifications as set forth below are standard and applicable to all Services to be performed under this Agreement together with any SOW contemporaneously or subsequently executed by and between VitalECM and Customer (Standard Specifications”).  In the event of conflict between the Standard Specifications as set forth herein and those of any SOW, the Specifications of such SOW shall control.

Standard Specifications
Assumptions	Details	Application
01. Conversion Center Hours of Operation	Conversion centers operate during standard business hours, Monday – Friday from 8am to 5pm (local time) and observe Federal U.S. Holidays.	General
02. Application Development	Project setup includes up to 12 hours of Project Management Services and up to 2 hours of IT Services for setup and automation of the production scanning, data capture and digital output of completed production work.	General
03. Reboxing	Documents sent for conversion should be packed into cartons not exceeding 1.3 cu. ft. per carton. Cartons larger than 1.3 cu. ft., as well as any damaged cartons deemed physically compromised / at risk for production handling, will be re-boxed into standard 1.3 cu. ft. cartons at the client’s expense.	General
04. Production Rates	All documents sent to VitalECM for imaging are assumed to be in-scope for imaging. Setup and configuration require a minimum two-week lead time from the time work is received at the VitalECM conversion center and the time that the job enters the production workflow. Unless otherwise specified in writing, the normal expected output for conversion project processing shall accommodate the preparation and conversion of two 1.3 cu. ft. cartons per business day.	General
05. Document Preparation	Document Preparation Services include the removal of bindings from standard business documents, but does not include any sorting, classification, or special handling of physical files. A minimum of 4 pages per binding is considered in-scope with Standard Prep. and Scan pricing. Except for defined services related to Document Type Classification services, any sorting, classification or special handling of documents (physical or digital) will be performed upon request and will be billed at out-of-scope Additional Conversion Services rates.	Business Documents not exceeding 11″ x 17″
06. Default Scanning Specifications	Unless a higher scanning specification is selected, conversion will be performed at 200 DPI in Black and White. Document size of Standard Prep and Scan services does not include the scanning of any documents larger than 11″ x 17″, and pricing assumes no more than 2% of documents are larger than 8.5″ x 11.” Documents must be in a physical condition which allows VitalECM to scan the documents using a standard sized, high speed production scanner. Fragile documents, books, and glossy documents are considered non-standard for standard production scanning and may require additional preparation or scanning charges.	Business Documents not exceeding 11″ x 17″
07. Scanning Output Options	Scanned images will be saved as multi-page TIFF files with loss-less compression, unless otherwise specified during project setup. Prior to production, clients may request alternate compression options and/or specify any of the following options at no additional charge: single-page TIFF, single-page PDF, multi-page PDF.	Business Documents not exceeding 11″ x 17″
08. Enhanced Imaging Options	Scanner settings apply to all files scanned. Selective color / greyscale imaging output is available, but all images will be scanned (and billed) at the highest requested imaging settings and non-color images will then be downscaled to a lower quality using automated production imaging software.	Business Documents not exceeding 11″ x 17″
09. Large Format Imaging	VitalECM’s Large Format Imaging is designed for documents measuring up to 44″ on the shortest edge of the document. Documents with a shortest edge which exceeds 44″ may, depending upon VitalECM Operations scanner capacity, require a customized rate per image and would be considered outside the project scope.	Large Format Imaging
10. Data Capture	Data must be in a standard location / format on either the first page of the document, on the outside of the file folder, and/or on the outside of the file’s carton. Data capture to be provided utilizing double-key data entry to ensure accurate capture of keywords / document IDs.	Data Capture
11. Post Conversion Processing	Unless otherwise specified within the imaging Statement of Work, physical documents will be transferred for storage utilizing the client’s existing VitalECM Records Management Services account utilizing the then-current standard pricing terms and conditions. For clients without a VitalECM Records Management Services account, a new account will be created for the client utilizing VitalECM’s then-current standard pricing terms and conditions.	General
12. Additional Conversion Services	Professional Services: $300.00; All other services not specified above: $67.50/hr.	General
13. File Delivery	The price for physical file delivery using non-VitalECM transportation is $25.00 per item, plus the cost of VitalECM shipping.	Physical File Delivery
14. File Delivery	Client must specify, by VitalECM barcode ID, the physical carton where the requested file is located. On-demand retrievals are allotted 15 minutes per request. Files requested by client but not found within the physical inventory are billed as completed On-Demand Retrievals.	On-Demand Retrievals

3. WORK SAMPLE.

Upon VitalECM’s initial receipt of Source Materials for which it shall provide the Services, it may, if requested by the Customer, perform a “Work Sample” and forward same to Customer for its inspection and approval. Such Work Sample shall not exceed the greater of either one hundred images, or a quantity to be agreed to in writing as a result of negotiations with VitalECM representative.  VitalECM may provide in an SOW, the Specifications regarding such Work Sample as VitalECM deems necessary and appropriate. If Customer elects to receive a Work Sample VitalECM shall not commence the Project to which the Work Sample relates until such time as it receives written acknowledgement from the Customer of the acceptance the quality of the Work Sample respective to the Project.  Upon VitalECM’s receipt of such written acknowledgement from Customer, it shall commence the Project, pursuant to the Fees and Specifications set forth in the SOW Customer acknowledges that any delays on its part regarding inspection and approval of the Work Sample, consistent with the foregoing may result in a corresponding delay in the turnaround time or completion date for the Project or the Recurring Services as set forth in the SOW. VitalECM acknowledges and agrees that if upon receipt of a Work Sample, Customer subsequently rejects the work product associated therewith, Customer shall have the right to terminate the associated Services, which shall result in Customer and VitalECM having no further obligation for the Services contemplated under that respective Work Sample.

4. PERFORMANCE STANDARDS; IMAGING SERVICES.

The Services performed by VitalECM for and on behalf of the Customer shall be performed in a good, professional, and workmanlike manner, and be performed as a reasonably careful commercial service provider would under similar circumstances. Due to the labor intense nature of the image capture processes, and inherent fallibility of image capture exposure, and poor document quality, VitalECM cannot guarantee 100% accuracy of individual page capture or of image quality in the normal course of rendering Imaging Services. VitalECM shall provide a basic quality control check of images scanned and indexes created prior to the transfer of Image Files to the Customer, provided however, that it shall be the Customer’s sole responsibility for auditing the quality of the Image Files and associated indexes prior to the expiration of the Audit Window (Audit Window as further defined in Section 10, below). Upon express written request from Customer, VitalECM can perform a page-by-page comparison, in an attempt to reduce incidents of image capture or indexing inaccuracy, such engagement shall be prepared as an additional SOW and approved by both Parties. Customer acknowledges that any delays in the delivery of Source Materials or any other information necessary and relevant to VitalECM in its performance of the Services, pursuant to any Project or Recurring Services, may result in a corresponding delay in the turnaround time or completion date for such Project.

5. MODIFICATION OF SERVICES.

Customer may modify the Specifications as set forth in any SOW by providing VitalECM with written notice setting forth such modified Specifications or requirements.  VitalECM reserves the right to amend the Fees set forth in this Agreement or any SOW, in response to changes in Specifications.  Upon VitalECM’s receipt of written notice setting forth such modified Specifications or requirements, on a timely basis, it shall provide Customer with written notice of any adjustments to the Fees or Specification set forth in the applicable SOW.  Such notice shall set forth in reasonable detail the basis for any changes in Fees.  VitalECM shall have no further responsibility to continue the Project, pursuant to this Agreement or any SOW, unless and until it receives written acknowledgement and acceptance by Customer of the notice. Notwithstanding the forgoing, if after engaging in good faith modification negotiations with Customer, VitalECM unilaterally determines that any specific Project fails to meet targeted minimum financial performance, upon thirty (30) days’ written notice to Customer it shall be permitted to discontinue Services without liability to Customer.

6. OWNERSHIP; ACCESS; CONTROL OF DEPOSITS.

All Deposits subject to the Services to be performed by VitalECM shall be and remain the property of Customer. Customer warrants and represents that it is the owner or legal custodian of the Deposits and has full consent and authority, including authorization to collect, maintain, store, and direct disposition as to retention and destruction, and that VitalECM shall under no circumstances assume a role of a custodian for any Deposits or have any liability under state or federal law with respect to custody such Deposits. Files, records, computer media and information contained in such Deposits shall be delivered by VitalECM only to Customer’s agent(s) as identified by Customer on either (i) VitalECM’s standard “Access Authorization Form” or (ii) as identified in the SOW as Authorized Agents (collectively “Authorized Agents”).  Authority granted to any person(s) on such form shall constitute, until changed, Customer’s representation that the identified person(s) have full authority to order any service and to deliver to and receive from VitalECM, the Customer’s files and records, computer media and information contained in such Deposits. If there is no Access Authorization Form, any Customer representative will have authority to order any service, destroy Deposits, and receive from VitalECM the Customer’s files, records, and computer media and information contained in such Deposits. Customer is solely responsible for maintaining the confidentiality of all passwords issued under VitalECM’s security provisioning platforms, including without limitation restricting the use of any password by Customer’s designated users. Customer shall be solely responsible for all use of the Services accessed through Customer’s password(s).

7. CONFIDENTIALITY.

VitalECM and Customer both covenant and agree to keep the terms and conditions of any information related to or disclosed by one party to the other in connection with this Agreement confidential, and not to intentionally disclose the existence or the terms and conditions of, or any information related to or disclosed by one party to the other in connection with this Agreement, to unrelated third parties without express written consent of the disclosing party. VitalECM shall not obtain any rights of any sort to the Confidential Information of Customer contained in Deposits.  “Confidential Information” means (i) any information concerning or relating to the property, business operations, and affairs of the disclosing party, (ii) this terms and conditions set forth herein, and in any SOW, and (iii) any information contained in the Deposits.  It shall not include information that was previously known to the receiving party free of any obligation to keep it confidential, is subsequently made public by the disclosing party or is disclosed by a third party having a legal right to make such disclosure.  To ensure confidentiality of its Customer’s Deposits, VitalECM is under no obligation to permit Customer or its agents, physical access to VitalECM’s internal Storage configurations for the purposes of examination or removal of Deposits.  VitalECM shall implement and maintain such reasonable safeguards as a similarly situated commercial service provider in the records management industry would to protect Customer’s Confidential Information

8. INTELLECTUAL PROPERTY; PROTECTIONS.

VitalECM or its suppliers or licensors are the sole and exclusive owner(s) of all right, title and interest in and to any software, equipment, Services, documentation, and all copies thereof including all derivations, modifications, and enhancements thereto, including but not limited to ownership of all intellectual property rights, (collectively “Intellectual Property”).  VitalECM and or its licensors and suppliers shall have a perpetual, royalty-free, irrevocable, world-wide license to use and incorporate into the Intellectual Property and suggestions, ideas, modification requests, feedback or other recommendations related to the Intellectual Property, and shall own all right title and interest in and to the embodiments of same, in the same.  Neither this Agreement nor any SOW provides Customer with title to or any ownership rights or interest in the Intellectual Property, but only a right of limited use as expressly set forth herein.  Customer agrees to inform VitalECM immediately of any infringement or other improper action with respect to VitalECM’s intellectual property as stated herein, or the Intellectual Property right therein of VitalECM’s suppliers, that comes to Customer’s attention. In the course of providing some Services, VitalECM may provide equipment owned by Company to be used by Customer. Customer acknowledges that all such equipment remains the property of VitalECM and agrees to compensate VitalECM for damage of any VitalECM equipment not returned to VitalECM in good condition.

9. PAYMENT FOR SERVICES.

During the term in which VitalECM provides Services it shall invoice Customer monthly for such Services in accordance with the Fees as set forth in any any SOW, unless prior arrangements have been agreed to with Customer in any SOW to invoice for Services upon the completion of any discrete Project. Fees for Services shall be due and payable within thirty (30) days of Customer’s receipt of each invoice from VitalECM. A finance charge of one and one-half percent (1.5%) per month will be added to any balance not paid within thirty (30) days from Customer’s receipt of each invoice. Customer acknowledges and agrees that VitalECM may withhold transfer of Image Files until Customer satisfies VitalECM’s undisputed invoiced Fees for Service.

10. DISPOSITION OF SOURCE MATERIALS.

Unless prior arrangements to authorized destruction of Source Materials have been agreed to in writing, Customer’s Source Materials will be stored as Deposits in accordance with the terms and conditions of Section 13 “Resulting Storage of Deposits”, below. Customer may elect to destroy Source Materials, either in VitalWeb® or in writing to VitalECM at any time post-scanning. VitalECM’s destruction processes shall be performed in accordance with industry accepted standard specifications as promulgated by The International Secure Information Governance & Management Association (“i-SIGMA”), The National Association for Information Destruction (NAID®), and in accordance with applicable state or federal laws or regulations. Customer releases VitalECM from all liability by reason of the destruction of Source Materials pursuant to such authority.

11. TRANSFER OF IMAGE FILES.

Customer hereby agrees that all Image Files shall be transferred to its possession via VitalECM’s Repository Services utility, unless prior arrangements are made between VitalECM and Customer in writing for the transfer if Image Files via either any one or combination of the following protocols:  (a) transfer on a secure, encrypted peripheral storage device or other media, (b) transfer utilizing encrypted electronic file transfer protocol (“FTP”) by Customer, or (c) transfer utilizing a third-party Electronic Data Transfer Service Provider (“EDT Service Provider”) as designated by Customer. Customer shall be granted access to an account on VitalECM’s Repository Storage utility, created exclusively for Customer, with preestablished security credentialing, that will enable Customer to either retain Image Files as Deposits for extended storage via VitalECM’s Repository Services in accordance with the instructions as set forth in Section 13 “Resulting Storage of Deposits” below, or to retrieved all or any portion of the Image Files for export to an alternate repository hosting or storage platform.

12. DISPOSITION OF IMAGE FILES; RESPONSIBILITY FOR IMAGE FILES REDUNDANCY.

VitalECM shall have no obligation to recreate Image Files that are transferred from VitalECM’s Repository Services utility in accordance with the instructions described herein or retain back-up copies of Image Files transferred out of VitalECM’s custody. Customer acknowledges that VitalECM shall have no obligation to store back-up or replacement copies of Image Files that are transferred or deleted by Customer (or by VitalECM under conduct permitted by this Agreement or applicable SOW) unless prior arrangements for storage of back-up or replacement copies have been agreed to in writing with VitalECM.   Upon receipt of Image Files Customer is solely responsible for protecting all data and information transferred to its custody from VitalECM, whether transferred via VitalECM’s Repository Storage utility or via any electronic FTP or EDT Service Provider (whether initiated by VitalECM or Customer), or any peripheral storage device other media. Without limiting the foregoing, Customer will be responsible for all costs and expenses that Customer or others may incur with respect to backing up and restoration, and or recreating any Image Files that are lost or corrupted as a result of Customer’s use of Image Files that have been transferred out of VitalECM’s Repository Services. Any request by Customer to VitalECM to recreate Image Files that have been deleted or transferred shall be conditioned on the availability of Source Materials and upon Customer’s acceptance of VitalECM’s Fees for providing Imaging Services to re-scan Source Materials.  Customer acknowledges and agrees that VitalECM will not be responsible for Customer’s authorized deletion of Image Files, or for the corruption of, or loss of, any data, information, or content contained in any Image Files not transferred via VitalECM’s Repository Services or transferred to Customer via Customer’s designated transfer utility.

13. RESULTING STORAGE OF DEPOSITS.

13.1 SOURCE MATERIALS.

All Source Materials retained by VitalECM beyond the temporary storage term of the Audit Window shall be stored in accordance with, by order of precedence (i) the terms and conditions of any previously or concurrently negotiated agreement between Customer and any VRC Entity, governing Storage of Deposits, or, if no such agreement exists then (ii) in accordance with the terms and conditions demonstrated in this Agreement together with VitalECM’s then current, standard Fees and Specifications for Storage of Deposits

13.2 IMAGE FILES.

With respect to Image Files, upon expiration of the Audit Window, all Image Files shall remain in storage with VitalECM’s Repository Services utility as defined under Section 14 below (“Image Files as Deposits”), for which Customer shall be charged a monthly Fee, unless Customer provides express written notice via its Authorized Agents to VitalECM prior to the expiration of the Audit Window, of its election to extract Image Files from the Repository Services utility, sent in accordance with the Notices provision found at Section 23, below.  All Image Files retained by VitalECM beyond the temporary storage term of the Audit Window shall be stored in accordance with, by order of precedence (i) the terms and conditions of any previously or concurrently negotiated agreement between Customer and any VRC Entity, governing Storage of Image Files as Deposits, or, if no such agreement exists then (ii) in accordance with  the terms and conditions demonstrated in this Agreement together with VitalECM’s then current, standard Fees and Specifications for Storage of Image Files as Deposits

14. REPOSITORY SERVICES.

VitalECM shall provide Repository Services using the offsite remote data storage software of either VitalECM or a third-party electronic data storage provider (“EDSP”) utilizing either the EDSP’s, or one or more third party’s computer server(s), that are owned, operated or made accessible by the EDSP or a third party (the “Server”), which will allow Customer to electronically store Customer’s Image Files and retrieve such stored Files on the EDSP’s hosting system or the hosting system of a third-party selected and approved by VitalECM (the “System”) via the Internet.

14.1  PROHIBITED USES.

Customer shall be solely responsible for any and all acts and omissions that occur under any account or password issued to Customer to access the System, and Customer shall not engage in any unacceptable use of the Repository Services, which includes dissemination or transmission (or establishment of links with the EDSP) of Customer records, data, or other material received by VitalECM and/or the EDSP from Customer by reason of the fact that such material may be determined to be (a) abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious, (b) dissemination or transmission of faxes, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person, (c) interference, disruption or attempt to gain unauthorized access to other accounts of VitalECM or an EDSP or any other computer network,  (d) dissemination or transmission of computer viruses, trojan horses, worms, or any other malicious code or program, (e) or engaging in any other activity reasonably considered by VitalECM to conflict with the spirit and intent of this Agreement and the Repository Services offering.

14.2 RESTRICTIONS ON MODIFICATIONS. 

Customer shall not alter, modify, translate, reverse engineer, decompile, disassemble, or adapt the System or the System documentation, or prepare any derivative works of the System or the System documentation. In the event Customer violates the provisions of this Section 14.2, the applicable EDSP shall exclusively own all right, title, and interest in and to any modifications and derivative works prepared by Customer, its agents or representatives or other persons hired by Customer or for Customer’s benefit.

14.3  CUSTOMER RESPOSIBILITIES. 

Except as expressly set forth in this Agreement, Customer shall be responsible for (a) the conversion of all other documents to electronic format that are intended for storage in connection with the Repository Services provided by this Agreement, (b) providing, maintaining and ensuring compatibility of all hardware, software, electrical and other physical requirements with the System and the Repository Services for Customer’s use of the Repository Services and the System, including, without limitation, telecommunications and digital transmission connections and links, routers, local area network servers, virus software, firewalls, server and Customer’s internet connectivity and the internet browser (the “Customer Browser”) and any other equipment required to access the System and use the Repository Services,  and for (c) any security measures which are Customer’s obligation under this Agreement.

14.4  REPOSITORY OPERATIONAL ACCESSIBILITY. 

VitalECM and EDSP shall use commercially reasonable efforts to make the Repository Services available for use by Customer 24 hours a day, 7 days per week, 365 days per year (with the exception for scheduled maintenance and non-access downtime). The foregoing times of operation may be modified to provide either regularly scheduled maintenance or maintenance required as a result of matters beyond EDSP’s reasonable control. The EDSP shall not be responsible for any unavailability of Repository Services resulting from any problems connected with Customer supplied or ordered third-party data circuits, Customer applications, equipment or facilities or acts or omissions of Customer. Customer acknowledges that the EDSP will perform maintenance on their systems as they determine reasonably necessary to maintain the continuous operation of the Repository Services. Customer acknowledges and agrees to periodically scheduled maintenance downtime periods. Notice of scheduled maintenance will be provided by e-mail to Customer’s designated point of contact at least forty-eight (48) hours prior to such maintenance being performed. The EDSP will use reasonable efforts to conduct routine scheduled maintenance during off-peak or low traffic periods.

14.5  SERVICE LEVEL GUARANTEE. 

Subject to the provisions under Section 14 and/or Force Majeure events, VitalECM guarantees and represents that while this Agreement remains in effect, the System will be available for deposit and retrieval of documents in connection with the EDSR Services at least 99.9% of the time during each discrete twenty-four (24) hour consecutive period. VitalECM may supplement its service level guarantee from time-to-time, provided that, no supplement shall reduce the obligations of VitalECM under this Section 14.5, unless a written amendment to such effect shall have been mutually executed by the Parties.

14.6  NO WARRANTY. 

VitalECM does not warrant that the System or that access to Repository Services or the System will be uninterrupted at all times and error free, that all deficiencies, errors, defects, or nonconformities will be corrected or that the EDSP, or that the Repository Services will meet Customer’s specific requirements subject to the representations contained herein.  VitalECM makes no representations or warranties about the suitability of the Repository Services for any purpose.  The Repository Services are provided “as-is” and VitalECM makes no warranties of any kind, express or implied, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose with respect to the Repository Services furnished to Customer, or other Services contemplated by this Agreement. Customer agrees to encrypt all Image Files, or any other Deposits stored in electronic format, and notwithstanding any liability limitations as set forth herein, Customer shall be solely liable for all consequences of its failure to encrypt the Image Files.

15. NON-PAYMENT.

In event Customer fails to pay any Fees for Storage and Services provided in accordance with the terms hereunder within thirty (30) days, VitalECM may suspend all services and refuse access to any Deposits until such time as Customer has cured such default. If Customer fails to pay Fees for a period of ninety (90) days, VitalECM may, at its option, after giving thirty (30) days’ notice in accordance with the Notices provision set forth below, destroy such Deposits in accordance with NAID® specifications, all without liability to Customer or third parties claiming relief through or by Customer. Nothing herein shall preclude VitalECM from recourse through other legal remedies available to it. Customer shall pay all costs actually incurred by VitalECM in collection of Fees for Storage of Services rendered, including court costs and reasonable attorney’s fees.

16. TERM; TERMINATION; DEFAULT. 

With respect to Services that are not Recurring and are Project based in nature, this Agreement shall commence on the Effective Date of any SOW to which these terms are incorporated by reference and shall continue until (i) completion of all outstanding Services and (ii) VitalECM’s receipt of payment for Fees due under any SOW. With respect to Resulting Storage of Deposits as further defined under Section 13.0 above, this Agreement shall commence on the Effective Date of any SOW to which these terms are incorporated by reference and shall continue for a minimum initial term of twelve (12) months from the effective date of the applicable SOW to which this Agreement is incorporated by reference (“Term”) with automatic successive twelve (12) month Term renewals, unless and until Customer provides thirty (30) days’ written notice in accordance with Notices provisions as set forth in Section 16 below, prior to the end of the then current Term. Customer’s authorized destruction of all Deposits in Storage shall be deemed an Agreement termination event. Notwithstanding any of the forgoing, in the event of breach of the material terms, conditions or covenants found herein, the non-breaching party may terminate the SOW and this Agreement upon written notice to the breaching party of the default, if such default is not cured by the breaching party within forty-five (45) days of a written notice of the default, provided that such termination shall be subject to the terms, conditions, and Fees as set forth in this Agreement and any SOW to which this Agreement is incorporated by reference. Upon default by either Party of any of the terms, conditions or covenants as set forth in this Agreement and any SOW to which this Agreement is incorporated by reference that remain uncured, or otherwise upon an event of termination unrelated to default, all outstanding installments of any Fees or charges that are or may become due by Customer for the remainder of any term under which Services are being performed, at the option of VitalECM, without notice or demand, shall become immediately due and payable by Customer.

17. HAZARDOUS OR ILLEGAL ITEMS.  

Customer covenants and agrees that it shall not (i) tender to VitalECM any materials or substances that are defined as “hazardous” (under any federal, state, or municipal law) or are flammable, explosive, toxic, radioactive, of a nature that may attract vermin or insects, or are otherwise illegal or dangerous, (ii) tender to VitalECM Deposits in the form of negotiable instruments, jewelry, blank check stock, or other items that have intrinsic value (iii) use the Services for creation, storage, possession, or transmission of any information that violates any state, local, or federal law, (iv) use, or permit VitalECM to use, the facilities of VitalECM for any of the foregoing purposes.

18. JUDICIAL AND GOVERNMENTAL ENFORCEMENT; ACCESS. 

Customer agrees that Deposits maintained by VitalECM are subject to examination by law enforcement or others without Customer’s consent upon presentation of a valid search warrant, subpoena, or court order issued by any governmental or judicial body having authority to issue such document, and that VitalECM is authorized to comply with such requests, at Customer’s expense, provided that VitalECM notifies Customer promptly upon receipt thereof, unless such notice is prohibited by law. Notwithstanding, provided that VitalECM shall be entitled to reasonable compensation or expense reimbursement, VitalECM agrees to cooperate with Customer to limit any subpoena.

19. LIABILITY LIMITATION; PROPERTY AS DEPOSITS.

VitalECM shall not be liable to Customer for any loss, damage, or destruction of Customers property stored as Deposits, however caused, unless such loss, damage, or destruction results from VitalECM’s negligence.  If VitalECM becomes liable to Customer for such negligence, VitalECM’s liability to Customer (i) with respect to Deposits in the form hard-copy records (including film) and Deposits as Image files in the form of electronic data, shall be limited to two dollars ($2.00) per each carton, linear foot, or gigabyte of electronic data of Customer’s Deposits that is lost, damaged, or destroyed, beyond which value VitalECM shall not be liable, and (ii) with respect to physical tape media in the form of  reel, audio, video, or cartridges or cassettes, shall be limited to the cost of replacing the actual physical tape media that is lost, damaged, or destroyed, beyond which VitalECM shall not be liable.  In no event shall VitalECM be liable for any damages associated with the value of any data or information that may be or may have been stored or contained in any Deposits stored by VitalECM, beyond the liability limit as set forth herein.  Customer acknowledges and agrees that its Deposits are not insured by VitalECM against loss, damage, or destruction however caused, and further agrees that it is Customer’s responsibility to obtain its own insurance for any loss, damage or destruction beyond the scope of VitalECM ‘s agreed limited liability if, in Customer’s judgment, there exists a potential for loss or damage in excess of such limitation. Customer shall cause its insurers of the Deposits to waive any right of subrogation against VitalECM. The customer understands and acknowledges that normal deterioration and aging of all record media occurs with time.  Claims by the Customer for loss, damage, or destruction of Deposits must be presented in writing to VitalECM within thirty (30) days after Customer learns of or is notified by VitalECM that loss, damage, or destruction to part or all of the Deposits has occurred.  Customer covenants and agrees not to commence any action against VitalECM for loss, damage or destruction of the Deposits covered hereunder unless commenced within thirty (30) days of the date that Customer learns of loss, damage, or destruction, and in any event no later than thirty (30) days after withdrawal of Deposits.

20. LIABILITY LIMITATION; SERVICES.

VitalECM shall not be liable for any breach in providing Services unless such breach results from VitalECM’s negligence.  If VitalECM becomes liable to Customer for such negligence, VitalECM’s maximum liability to Customer with respect to such breach in providing Services (not related to the loss, damage, or destruction of Customer’s property as Deposits for which the provisions of Section 7.0 above would apply) shall be equal to those Fees paid by Customer for such Services (exclusive of Fees paid for Storage) rendered in the twelve (12) months immediately preceding the event that gave rise to the claim.  Notwithstanding the forgoing, Customer agrees to encrypt all Image Files, or any other Deposits stored in electronic format, and be solely liable for all consequences and liability of its failure to encrypt. If Deposits are placed in the custody of a third-party carrier for transportation at the request of the Customer, such carrier shall be solely responsible for any claim resulting from unauthorized disclosure of Confidential Information while in the custody of such carrier.

21. NO CONSEQUENTIAL DAMAGES. 

In no event shall either party be liable to the other party for any indirect, special, consequential, exemplary, punitive, cover or incidental damages, including but not limited to loss of data, loss of revenue, loss of profits or loss of goodwill, regardless of whether any action to obtain such is brought under theory of tort, contract or any other legal theory.

22. INDEMNIFICATION.

Customer agrees to indemnify and hold harmless VitalECM, its affiliates and their respective officers, directors, managers, equity owners, employees and agents from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorney’s fees) incurred as a result of any claim, action or proceeding made or brought by a third party to the extent arising from or in any way related to this Agreement, other than those arising solely from the negligence or intentional misconduct of VitalECM. Subject to the provisions of Sections 20, 21 and 22 herein, VitalECM agrees to indemnify and hold harmless Customer and its officers, directors, managers, equity owners, employees and agents from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorney’s fees) incurred as a result of any claim, action or proceeding made or brought by a third party to the extent arising solely from the gross negligence or intentional misconduct of VitalECM in the performance of its obligations under this Agreement.

23. NOTICES.

All Notices between the parties under this Agreement shall be in writing. Customer agrees that it shall be a requirement for Customer’s Authorized Agents to notice their election to destroy Source Materials, or to extract Image Files from the Repository Services utility, via email to [email protected]. Customer agrees that it shall be acceptable for Notices regarding Fee adjustments or changes to Fee applications to be sent either (i) via regular mail to Customer’s physical street address or box number designated by Customer for invoicing as found in the heading of the applicable SOW, or (ii) via email to Customer’s Authorized Agent(s) as identified by Customer on VitalShred’s standard Access Authorization Form, or in the absence of such Access Authorization Form, then to the Customer’s Invoicing Email address designated by Customer as found in the heading of the applicable SOW, which such Notices shall be deemed effective and given as of the date sent. All other Notices shall only be given via registered or certified mail to the street address used for the Customer’s “Business Name” as found in the heading of the applicable SOW, which such Notices shall be deemed effective and given as of the date received.

24. FORCE MAJEURE.

In the event either party is unable to perform its duties under the terms of this Agreement because of acts of God, strikes, governmental actions, pandemics, acts of terrorism, civil unrest, equipment or transmission failure, or other causes reasonably beyond its control, such party shall not be liable for damages to the other resulting from such failure to perform.

25. INTERPRETATION; CONFLICT.

Any SOW, whether previously or contemporaneously executed between Customer and VitalECM, that explicitly incorporates this Agreement by reference shall be subject to the terms and conditions as set forth herein. In the event of conflict between the terms and conditions as set forth in this Agreement and those of any SOW that seeks to incorporate the terms and conditions of this Agreement, those found in the SOW shall supersede and prevail only as would pertain to the Fees and Specifications for Services contemplated therein; in all other instances the terms and conditions of this Agreement shall govern and control. In the event of conflict between terms and conditions herein together with those of any SOW to which this Agreement is incorporated by reference, and those found in any prior or contemporaneous agreement between Customer and VitalECM for similar service offerings that are Recurring in nature (“Legacy Agreement”), those found herein together with those of such SOW shall supersede and prevail ONLY as to the discrete location or business operation contemplated in such SOW; in all other instances the terms and conditions of the Legacy Agreement shall govern and control.

26. MISCELLANEOUS.

This Agreement may only be modified, amended, or terminated in writing, signed by both parties, and in accordance with the Notices provisions set forth above. Captions contained in this Agreement are for convenient reference only and shall not be used in interpreting any of the provisions hereof. If one or more of the provisions contained in this Agreement and Exhibits are found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. Failure of either party to insist upon strict performance of the other party’s obligations hereunder shall not be construed as a waiver of strict performance thereafter of all of the other party’s obligations hereunder and shall not prejudice any remedies as provided herein. Nothing contained in this Agreement shall be deemed or construed as creating the relationship of principal and agent or of partnership or joint venture between the parties hereto. VitalECM shall be permitted to subcontract all or any portion of its duties under this Agreement. This Agreement together with and SOW to which this Agreement incorporated by reference shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. In the absence of an executed Agreement, the act of tendering Deposits or utilizing other Services will constitute acceptance by Customer of the terms and conditions of the then current, published standard version of this Agreement.

27. GOVERNING LAW.

This Agreement, and all matters arising out of or relating to this Agreement and any SOW to which this Agreement is incorporated by reference, including any claims, whether founded in contract, tort, or statute, shall be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to any choice of law provisions or rule (whether of Tennessee or any other jurisdiction) that would cause the application of the laws of any jurisdiction other that the State of Tennessee.  In the event either party institutes an action to adjudicate their rights under this agreement, the prevailing party shall be entitled to receive costs, which may include but are not limited to, court costs and reasonable attorney’s fees.

[1] VRC Companies, LLC. is a limited liability company, incorporated in the state of Delaware, with its principal business operations domiciled  in the state of Tennessee,  and doing business under the following legally established, trademarks:   Vital Records Control®,  VitalScan®,  Vital Shred®,  VitalChart®, and  VitalECM®. (each a “VRC Entity”)

STANDARD TERMS APPLICABLE TO ANY STATEMENT OF WORK

Professional Services Terms and Conditions

1. SCOPE OF SERVICES.

VRC Companies, LLC., doing business as Vital Records Control (“VRC” or “VitalECM”) agrees to provide the Customer with Professional Services (“Services”) including but not limited to advising, managing, and coordinating IT-related projects, focusing on integration subject to these Terms and Conditions (T&Cs”). Specific services will be described in individual Statements of Work (“SOWs”), work orders, or project agreements executed by both parties.

2. CUSTOMER RESPONSIBILITIES.

Customer shall:
• Provide timely access to relevant personnel, data, systems, and facilities necessary for VRC to perform the Services.
• Cooperate with VRC in good faith and provide timely approvals, decisions, and feedback.
• Be solely responsible for the accuracy and completeness of any data or materials it provides to VRC.

3. FEES AND PAYMENT.

Customer agrees to pay VRC the fees set forth in the applicable SOW or service agreement. Unless otherwise stated, all payments are due net thirty (30) days from the date of invoice. Late payments may incur a service charge of 1.5% per month or the maximum amount allowed by law, whichever is less. Customer shall be responsible for all applicable taxes (excluding taxes on VRC’s income).

4. TERM AND TERMINATION.

Either party may terminate these T&Cs or any SOW for cause if the other party materially breaches and fails to cure such breach within thirty (30) days after receiving written notice. Upon termination, Customer will pay for all Services rendered and expenses incurred up to the date of termination.

5. CONFIDENTIALITY.

VRC and Customer both covenant and agree to keep the any information related to or disclosed by one party to the other in connection with the Services provided confidential, and not to intentionally disclose the existence of the terms and conditions of, or any information related to or disclosed by one party to the other in connection with the Services, to unrelated third parties without express written consent of the disclosing party. ”Confidential Information” means (i) any information concerning or relating to the property, business operations, and affairs of the disclosing party, (ii) this terms and conditions set forth herein, and (iii) any information tendered to VRC for the purpose of destruction. It shall not include information that was previously known to the receiving party free of any obligation to keep it confidential, is subsequently made public by the disclosing party, or is disclosed by a third party having a legal right to make such disclosure.

6. SYSTEM INTEGRATION & ACCESS.

If VRC provides integration or technical access to Customer systems:

• VRC shall take reasonable measures to avoid disruption or damage to Customer’s systems.
• Customer agrees to provide a secure, non-production test environment if requested.
• VRC disclaims liability for any issues caused by third-party systems or Customer’s internal systems unless arising directly from VRC’s negligence.

7. WARRANTIES.

VRC represents and warrants that Services will be provided in a professional and workmanlike manner in accordance with industry standards. Except as expressly provided, VRC disclaims all other warranties, express or implied, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement.

8. LIMITATION OF LIABILITY.

To the fullest extent permitted by law VRC’S total liability under these terms (whether in contract, tort, or otherwise) shall not exceed the amount paid by Customer for the services giving rise to the claim in the twelve (12) months prior to the event. In no event shall VRC be liable for indirect, incidental, consequential, special, punitive, or exemplary damages, including loss of profits, revenue, or business opportunities, even if advised of the possibility of such damages.

9. INDEMNIFICATION.

Customer agrees to indemnify and hold VRC harmless from any third-party claims, damages, losses, or liabilities arising from Customer’s breach of these terms, Customer-provided data or materials, and unauthorized use of the Services.

10. OWNERSHIP AND INTELLECTUAL PROPERTY.

Unless otherwise agreed VRC retains all rights in any tools, software, methods, or materials used or developed in connection with the Services. Any Customer data or proprietary content remains the exclusive property of the Customer.

11. NOTICES.

All Notices between the parties under this Agreement shall be in writing. Customer agrees that it shall be acceptable for Notices regarding Fee adjustments or changes to Fee applications to be sent via either (i) regular mail or email with monthly invoicing, or (ii) via email to Customer’s agent(s) as identified by Customer on VRC’s standard authorization form. All other Notices shall only be given via registered or certified mail and shall be deemed effective and given as of the date received.

12. FORCE MAJEURE.

In event either party is unable to perform its obligations under the terms of this Agreement because of acts of God, strikes, governmental actions, pandemics, acts of terrorism, civil unrest, equipment or transmission failure, or other causes reasonably beyond its control, such party shall not be liable for damages to the other resulting from such failure to perform.

13.  CAPTIONS; SEVERABILITY; AMENDMENT; CONFLICT.

Captions contained in this Agreement are for convenient reference only and shall not be used in interpreting any of the provisions hereof. If one or more of the provisions contained in this Agreement and Exhibits are found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. In the event of conflict between terms and conditions herein and those found in any properly executed, prior or contemporaneous agreement specifically negotiated between Customer and VRC for similar service offerings that are recurring in nature (“Legacy Agreement”), the terms and conditions of the Legacy Agreement shall govern and control.

14. GOVERNING LAW.

This Agreement, and all matters arising out of or relating to this Agreement, whether founded in contract, tort, or statute, shall be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to any choice of law provisions or rule (whether of Tennessee or any other jurisdiction) that would cause the application of the laws of any jurisdiction other that the State of Tennessee. In the event either party institutes an action to adjudicate their rights under this agreement, the prevailing party shall be entitled to receive costs, which may include but are not limited to, court costs and reasonable attorney’s fees.

END OF PROFESSIONAL SERVICES TERMS AND CONDITIONS

[1] VRC Companies, LLC. is a limited liability company, incorporated in the state of Delaware, with its principal business operations domiciled in the state of Tennessee, and doing business under the following legally established, fictitious names:   Vital Records Control®, VitalScan®, Vital Shred®, VitalChart®, and Vital Vaulting Services.