SCRIBCOR TERMS AND CONDITIONS

In order to receive the Services described below by Scribcor, Customer agrees to the following terms and conditions (“Agreement”). 

1. Services.  Scribcor will perform certain services for Customer in accordance with the Agreement.   For sake of clarity, the “Services” shall not include any physical inspections or on-site reviews of landlords’ books and records.  Customer acknowledges that Scribcor is neither responsible for the management, maintenance, repair, upkeep or operation of any real property owned or leased by Customer, nor for the functioning, maintenance or repair of the software purchased separately by Customer. Notwithstanding anything contained herein to the contrary, Customer acknowledges and agrees that Scribcor’s Services may include advice, opinions and recommendations, but all decisions in connection with the implementation of any such advice, opinions or recommendations shall in fact be made by Customer. Nothing in this Agreement shall be deemed or construed to require Scribcor to perform property management or accounting services or to perform the services of property managers, architects, engineers, contractors, accountants, legal counsel, or other professionals requiring special licenses or make Scribcor responsible for the failure of the various professionals retained by Customer to properly perform their services. All Services provided by Scribcor hereunder shall be consulting services only.
2. Customer Obligations.  Customer will provide Scribcor at Customer’s cost and expense with any and all information, materials, consents, access to proper systems (collectively, “Materials”) in order to facilitate Scribcor’s performance of the Services.  For purposes hereof, “Materials” shall include the following:
   • Electronic copies of the lease agreements, all exhibits thereto, any lease amendments or renewals, any assignments or subleases and all exhibits and amendments thereto, all estoppel certificates, purchase option agreements, early lease termination option agreements and all pertinent correspondence with the landlord and the tenant or subtenant (as applicable);
   • Electronic copies of lease commencement date agreements or similar documentation;
   • Access to the real estate database software to be used to house the portfolio information;
     • Any other documents or information reasonably requested by Scribcor; and
   • Any information reasonably requested by Scribcor.
3. Term and Termination.
   • Term.  The term of this Agreement (“Term”) shall commence on the agreed upon Effective Date, and continue until terminated in accordance with the terms hereof.
   • Termination.  If either party breaches this Agreement, the non-breaching Party shall provide the breaching party with written notice of such breach and, if the breach has not commenced a remedy to cure within thirty (30) days after receipt of such notice, the non-breaching Party may immediately terminate this Agreement by providing written notice to the breaching party.  In addition, this Agreement may be terminated by either party for convenience and without penalty upon one-hundred twenty (120) days advance written notice.
   • Effects of Termination.  Upon termination of this Agreement, Customer shall promptly reimburse Scribcor for all costs and expenses of Scribcor incurred pursuant to this Agreement with respect to the Services performed, and for all Fees earned by Scribcor through the date of such termination.  Any termination of this Agreement shall not extinguish or otherwise affect Customer’s obligation to pay Scribcor all amounts owed to Scribcor in accordance with Section 4 hereof.
4. Compensation.
   • Fees.  During the first year of the Term, Customer shall pay Scribcor the fees added to this Agreement (the “Fees”). Annually, on the anniversary of the Effective Date, the Fees shall increase by 4% per category.  In the event the Effective Date begins mid-month, the price increase shall take effect on the date that is the first day of the next calendar month.  Scribcor shall issue invoices on a monthly basis for the Fees, but Scribcor’s failure to do so shall not release Customer for its obligations to pay the Fees.  Customer shall pay said invoices within thirty (30) days of notice or demand thereof. If Customer fails to pay a Fee or any portion of a Fee when due, Scribcor shall have the right to suspend providing Services to Customer until the payment of the full amount of the Fee.  In the event that any Fee becomes thirty (30) days past due, Scribcor shall charge a late fee penalty at a rate this is ten (10%) per month for each fee overdue until such Fee is paid in full.
   • Reimbursement of Expenses.  The Customer agrees that in the event Scribcor’s employees or representatives, at Customer’s request or with the Customer’s consent, travel wherever located, (i) all commercially reasonable travel costs, and (ii) all travel costs approved in advance by Customer, incurred in connection therewith, including transportation, hotel accommodations and meals, shall be reimbursed by Customer.  Any individual expense item in excess of $1000 shall require advance written approval by Customer. Customer’s reimbursement of Scribcor’s eligible expenses will be due promptly (but in no event more than thirty (30) business days) following Scribcor’s submission to Customer of invoices or receipts evidencing said expenses.
5. Covenants.

   • Customer’s Covenants.  The Customer hereby agrees and covenants to do the following:

     1. Promptly provide Scribcor with existing Materials, and all Materials that come into existence after the Services begin;

     2. Timely pay all Fees and expense reimbursements payable to Scribcor hereunder; and

     3. Cooperate with Scribcor in connection with its performance of the Services.

   • Scribcor’s Covenants.  Scribcor hereby agrees and covenants to do the following:

     1. Use its reasonable efforts to accurately and completely input all relevant information provided by the Customer or received from the respective landlords with respect to each location into the Customer’s lease database; and

     2. Provide all Services hereunder in a diligent manner in accordance with the customary practices of the industry.

6. Confidential Information.  Unless otherwise required by law or with the written consent of Customer, Scribcor shall not use, publish or otherwise disclose to anyone other than Scribcor’s officers, employees, representatives and advisors, who agree to maintain the confidentiality thereof any business, operational strategic, planning, marketing, technical or business-sensitive information provided to Scribcor by Customer, its clients, its client’s landlords or any other third parties, or any other non-public information relating to Customer or their client’s that Scribcor knows or reasonably should know is or is intended to be confidential (the “Confidential Information”), whether in written, oral, computer file or any other form.  Notwithstanding the foregoing, Confidential Information shall not include any documents or information which (a) was known by Scribcor on a non-confidential basis before entering into this Agreement or is developed by Scribcor independently of any disclosures made by Customer to Scribcor of such information, (b) information rightfully obtained from a third party without similar restrictions and without breach of this Agreement; (c) is generally known to, or readily ascertainable by, the public (including, without limitation, any information filed with any governmental agency and available to the public), (d) is pursuant to litigation or (e) as may be required by law or in connection with the performance of the Services hereunder.  Upon termination of this Agreement for any reason, Scribcor shall promptly return all Confidential Information to the Customer. Customer agrees that all of Scribcor’s Services and such other work as Scribcor may perform pursuant to this Agreement shall be solely for the Customer’s informational purposes and internal use, and are not intended to be and shall not be used by any person or entity other than Customer. Customer further agrees that Scribcor’s Services and such other work as Scribcor may perform pursuant to this Agreement shall not be circulated, disclosed, distributed or quoted, nor shall reference to such Services or work be made to any person or entity other than Customer without Scribcor’s prior written consent. Scribcor shall be entitled to rely on the accuracy of any and all data and information provided by Customer to Scribcor without independent verification of same.

7. Work Product; Ownership.  

   • Work Product. The specific work, including commercial lease information, notes, reports, records, statistics, charts, diagrams, designs, documents, memoranda and/or other data or materials, that is prepared by Scribcor for Customer or as otherwise provided by Scribcor to Customer in the course of or as a result of Scribcor’s performance under this Agreement (collectively, “Work Product“), shall be the sole and absolute property of Customer.

   • Scribcor IP. Notwithstanding anything to the contrary herein, it is understood and agreed that Scribcor has acquired, created, or otherwise has rights in, and may, in connection with the performance of Scribcor’s Services, acquire, create, modify, provide or otherwise obtain rights in, various concepts, ideas, know-how, methods, methodologies, procedures, processes, and techniques, and that Scribcor retains all right, title and interest in and to its know-how and intellectual property rights, whether owned or licensed by Scribcor, including any techniques, principles, methodologies, formats or other proprietary materials (including any software or firmware and the source code thereof) developed or licensed by Scribcor and improvements thereto (collectively, the “Scribcor IP”) and Customer shall acquire no right or interest in such Scribcor IP.    

   • License.  To the extent the Work Product prepared by Scribcor for Customer contains any Scribcor IP, Scribcor hereby grants to Customer a non-exclusive and royalty free license (“License”) to use the Scribcor IP, solely to the extent they are included in, and as necessary to use, the Work Product or Services and solely as incorporated in such Work Product or Services during the Term.  Customer shall not disclose to any other entity or third party the Scribcor IP.

   • Non-Exclusivity.  Notwithstanding anything contained herein to the contrary, nothing herein shall grant any exclusive rights to Customer in, or transfer ownership to Customer of, any material or information that is created or used by Scribcor in the normal course of its business for its Customer’s or customers generally or is of a generic nature or is intellectual property owned by Scribcor or its affiliate(s) (e.g., trademarks) or licensed to Scribcor by third parties (e.g., third-party computer software). Scribcor does not agree to any terms that may be construed as limiting or precluding, in any way whatsoever, its right to (a) provide consulting or other services of any kind or nature whatsoever to any person or entity as Scribcor, in its sole discretion, determines or (b) develop for itself, or for others, materials that are competitive with those produced as a result of the services provided hereunder, irrespective of their similarity to the Services or other work performed by Scribcor under this Agreement.
8. Indemnification.  
   • Scribcor Indemnity.  Scribcor shall defend, indemnify and hold Customer harmless against and from any and all third-party actions, claims, demands, losses, liabilities, costs and expenses suffered or incurred by the Customer due to the gross negligence or willful misconduct of Scribcor in performing the Services.
   • Customer Indemnity.   The Customer shall defend, indemnify and hold Scribcor harmless against and from any and all third-party actions, claims, demands, losses, liabilities, costs and expenses suffered or incurred by Scribcor in connection with its performance of the Services hereunder, except to the extent caused by the gross negligence or willful misconduct of Scribcor in performing the Services.
9. Limitation on Liability.  Notwithstanding the form (e.g., contract, negligence, or otherwise) in which any legal or equitable action may be brought against Scribcor, Scribcor shall in no event be liable for damages or liability with regards to, but not limited to (a) specific leases, issues or periods not selected to be focused upon, (b) the discovery of and billing for amounts previously under-billed or overbilled by a landlord, or (c) the results of the implementation of recommendations made by Scribcor. Customer acknowledges that the Services being rendered by Scribcor do not constitute property management or accounting services or the services of property managers, architects, engineers, contractors, accountants, legal counsel, or other professionals requiring special licenses, and that the Customer’s prompt, ongoing delivery of the Lease Materials to Scribcor is materially important to Scribcor’s ability to properly render its Services hereunder.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EACH PARTY’S LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID TO SCRIBCOR HEREUNDER DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS FOR EACH INDIVIDUAL STATEMENT OF WORK.  UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR ANY OTHER SIMILAR DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, USE, PRODUCTION, INCOME, LOSS OF PROFITS, CONTRACT SAVING OR FOR ANY FINANCING COSTS OR INCREASE IN OPERATING COSTS OR ANY OTHER FINANCIAL OR ECONOMIC LOSS OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY OR ITS REPRESENTATIVES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This provision shall survive termination of this Agreement.
10. Insurance.  Scribcor shall carry and maintain in force at all times during the Term miscellaneous professional liability insurance in an amount not less than One Million Dollars ($1,000,000.00) per occurrence, other types of insurance customary in its field of work and all other policies of insurance required by applicable law.  Scribcor shall provide Customer with copies of certificates documenting its insurance coverage upon request.
11. Entire Agreement.  This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof, and no other agreement, statement or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding. Neither party shall be deemed to be the drafter of this Agreement, and therefore no presumption for or against the drafter shall be applicable in interpreting or enforcing this Agreement.  
12. Assignment.  This Agreement may not be assigned by Scribcor or Customer without the other party’s prior written consent, which neither party to the Agreement shall unreasonably condition, withhold or delay.  This Agreement shall be binding on the successors and permitted assigns of the parties.
13. Independent Contractor.  Scribcor is an independent contractor with respect to the Customer under this Agreement.  No partnership, joint venture, employment or fiduciary relationship is intended between the parties.  Except as expressly set forth herein to the contrary herein, Scribcor shall determine the methods and means of performing the Services in its discretion, including subcontracting or outsourcing any of its obligations under this Agreement but shall remain liable under this Agreement.
14. Governing Law; Venue; Attorneys’ Fees.  The validity of this Agreement and its terms or provisions, as well as the rights and duties of the parties hereunder shall be governed by the laws of the State of Illinois, without regarding to its conflict of laws principles.  The exclusive jurisdiction for suits or claims of any kind arising from this Agreement shall either be the state court of DuPage County Illinois or the U.S. District Court for the Northern District of Illinois. If either party institutes legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and other costs so incurred.
15. Severability.  In the event any provision of this Agreement is deemed unenforceable or ineffective, it shall not affect the enforceability or effectiveness of any other provision hereof, and all other provisions of this Agreement shall remain in full force and effect.
16. Notices.  All notices or demands of any kind shall be in writing and sent or transmitted by (i) U.S. mail, certified or registered, return receipt requested, (ii) personal delivery, (iii) a nationally recognized overnight courier service, or (iv) e-mail, in each case properly addressed or transmitted to the party at the street address or e-mail address below and shall be deemed to have been duly given or made on the delivery date if delivery is made during normal business hours, or on the next business day if delivered after normal business hours.  Scribcor may change their street address and/or e-mail address for notices from time to time by delivering notice of such change in accordance with the provisions hereof.
    
    If to Scribcor:

    Scribcor Global Lease Administration

    2 Mid America Plaza, Suite 650

    Oakbrook Terrace, IL 60181

    Attn: Kim Rafferty

    E-Mail: krafferty@Scribcorglobal.com

     

17. Waiver and Modification.  The waiver by either party of a breach of any provision of this Agreement shall not be deemed a waiver by such waiving party of any subsequent breach.
18. Force Majeure.  Neither party shall be liable for failure or delay in its obligations under this Agreement to the extent such failure or delay was caused by reasons beyond control, including acts of God, natural disasters, riots, or war.  
19. Entire Agreement.  This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written and oral agreements with respect to such subject matter.  This Agreement may not be amended except in writing and signed by an authorized officer of each of the parties hereto.
20. Authority. Each party represents that it has the full right, power and authority to execute this Agreement and to perform its obligations hereunder.
21. Counterparts; E-Mail Signatures.  This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.  Signed counterparts of this Agreement transmitted by e-mail shall be treated as originals.

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