1. APPLICABILITY OF THESE TERMS AND CONDITIONS The terms and conditions provided below (the “Terms and Conditions”) shall apply to and govern (A) FILEBANK, INC.’ storage and the servicing (collectively the “Storage Services”) of hard copy, media and electronic  storage, and other deposit items (collectively, the “Records”); (B) FILEBANK, INC.’ services for the secure destruction of Records (the “Destruction Services”); and (C) FILEBANK, INC.’ software services, conversion services, managed services, or professional services   (all such services collectively with Storage Services and Destruction Services the  “Services”) and any other services performed by FILEBANK, INC. pursuant to a statement of work, order or quote issued and/or executed by FILEBANK, INC. that are provided to any person or entity (the “CLIENT”) in the absence of a currently enforceable written agreement between the CLIENT and FILEBANK, INC. with respect to such Services. The tendering of any items for storage by the CLIENT to FILEBANK, INC. (or any predecessor of FILEBANK, INC.) and/or the actual custody by FILEBANK, INC. of any items of CLIENT for storage, and/or the request for other Services from FILEBANK, INC., and/or the payment by CLIENT for any such Services, shall constitute acceptance by CLIENT of all of these Terms and Conditions. If CLIENT issues a purchase order, memorandum, or any other instrument purporting to cover Services that is not accepted in writing by an authorized officer of FILEBANK, INC., then such purchase order, memorandum, or other instrument shall be for CLIENT’s internal purposes only and is not binding upon FILEBANK, INC. whether communicated before or after commencement of Services. Any currently enforceable agreement between CLIENT and FILEBANK, INC. regarding the Services shall supersede these Terms and Conditions. For purposes of these Terms and Conditions, “FILEBANK, INC.” means that particular subsidiary or affiliate of FileBank, Inc., that is providing the Services to CLIENT.
‍2. STORAGE SERVICES FILEBANK, INC. will provide Storage Services for CLIENT’s Records as requested by CLIENT from time to time.
‍3. DESTRUCTION SERVICES A. Destruction of Records in Storage – FILEBANK, INC. may provide Destruction Services if requested by CLIENT. FILEBANK, INC. will not destroy any Records without the CLIENT’s written or electronic authorization. Upon CLIENT’s request, FILEBANK, INC. will furnish a Certificate of Destruction to CLIENT. CLIENT will release, indemnify, and hold FILEBANK, INC. harmless from and against any liability, expenses, fines or penalties, damages, or costs, including reasonable legal fees, (collectively, “Costs”) arising from or relating to the destruction of Records pursuant to the CLIENT’s written or electronic authorization. B. Other Destruction Services – Upon CLIENT’s request, as part of Destruction Services FILEBANK, INC. may (i) provide shredding consoles and other equipment (“Consoles”) in CLIENT’s facilities for the collection of papers or physical media to be destroyed; (ii) service the Consoles on an agreed schedule or as needed; (iii) provide mobile on-site shredding on an agreed schedule or as needed; and/or (iv) securely destroy the materials in accordance with industry standards. Consoles remain the property of FILEBANK, INC. at all times, and CLIENT will not file any lien nor allow any lien to be filed against the Consoles. CLIENT shall place only office paper in Consoles designated for paper and appropriate physical storage media in Consoles designated for same (staples and small paper clips are acceptable). CLIENT will release, indemnify, and hold FILEBANK, INC. harmless from any Costs arising from or relating to the destruction of any materials placed in the Consoles or tendered for destruction. CLIENT shall reimburse FILEBANK, INC. for loss or damage to any Consoles and for any damage to FILEBANK, INC.’ shredders caused by placing any other materials in Consoles. CLIENT shall pay a removal fee of fifty ($50) dollars per Console upon removal of Console(s) from CLIENT’s facility by FILEBANK, INC.. 4. ACCEPTANCE OF SERVICES Unless otherwise agreed to by FILEBANK, INC., satisfactory completion, and acceptance of any conversion, managed or professional services and/or deliverables shall be deemed to have been delivered and accepted by CLIENT if CLIENT does not object in writing to such services or deliverables within thirty (30) days of receipt by CLIENT. 5. OTHER TERMS FOR SERVICES CLIENT shall not at any time store with FILEBANK, INC. any materials that would attract insects or vermin, are highly flammable other than paper, explosive, toxic, radioactive, dangerous, or illegal to possess or store, or that are otherwise deemed by FILEBANK, INC., in its sole discretion, to represent a hazard (“Prohibited Materials”). FILEBANK, INC. reserves the right, but is not obligated, to inspect any Records and may refuse to accept and/or remove and redeliver to CLIENT any Prohibited Materials. CLIENT shall also not provide or store with FILEBANK, INC. any memorabilia or collectibles, materials having historical value (such as fossils or historical manuscripts, journals or photographs), artwork, negotiable instruments, jewelry, currency or other items that have intrinsic market value. CLIENT will release, indemnify, and hold harmless FILEBANK, INC. from any Costs arising from or relating to CLIENT’s breach of this Paragraph 5A. CLIENT shall encrypt all electronic records that include personally identifiable information, sensitive financial information, protected health information, or any other information where such other information is required by any State or Federal law to be encrypted either in transit or at rest, or is otherwise subject to regulation governing its disclosure to third parties, before transmitting or otherwise delivering those records to FILEBANK, INC.. All encrypted data must be in a format that is unusable, unreadable or indecipherable to unauthorized individuals. FILEBANK, INC. will not inspect such records to determine whether they are properly encrypted, and CLIENT will release, indemnify and hold harmless FILEBANK, INC. from any Costs arising from or relating to CLIENT’s breach of this Paragraph 5B. FILEBANK, INC. reserves the right to re-box or refuse any Records that are not in a suitable condition for rack storage. FILEBANK, INC. is not and shall not be deemed a contract or common carrier for any purpose. The valuation and liability provisions of these Terms and Conditions shall apply to transportation services provided by FILEBANK, INC.. CLIENT agrees that any failure or delay in FILEBANK, INC. delivering Records or providing other Services within a reasonable period of time shall not constitute a failure of Service or a conversion of goods, nor subject FILEBANK, INC. to any liability, when such failure or delay results from any act of God (earthquakes, floods, fires, etc.), communication or power system failures, labor disputes, epidemic or pandemic, unusual traffic delays or other reason beyond FILEBANK, INC.’ reasonable control. CLIENT acknowledges that each employee or other representative of CLIENT shall have full authority on behalf of CLIENT to order or request any Services unless CLIENT provides specific written instructions to the contrary. Unless CLIENT specifically instructs FILEBANK, INC. otherwise in writing, CLIENT authorizes FILEBANK, INC. when performing deliveries to leave Records with any CLIENT representative, e.g. receptionist, who greets the FILEBANK, INC. courier, even if CLIENT representative may not otherwise be authorized by CLIENT to order or request Services. FILEBANK, INC. shall have the right to refuse Services without liability when FILEBANK, INC. is doubtful as to a requesting Party’s authority, or when CLIENT’s instructions are not complete to FILEBANK, INC.’ satisfaction. Any order for Services placed via FILEBANK, INC.’ web-based inventory program shall be deemed a valid order placed by an individual with authority to act on behalf of CLIENT. FILEBANK, INC. may delegate any duty or obligation to a company that is, directly or indirectly, through one or more intermediaries, under the common control of any direct or indirect parent company of FILEBANK, INC. (each, an “FILEBANK, INC. Affiliate”), or any responsible third-party, to perform all or part of the Services. FILEBANK, INC.’ use of contract employees shall not be deemed the use of a third-party for purposes of this Paragraph. In the event a third-party common carrier is used to transport CLIENT’s materials, said carrier and not FILEBANK, INC. shall be solely responsible for loss or damage to the materials while in the carrier’s possession. Additional charges for hoisting, lowering, and labor may be added to transportation costs if Records cannot be transported in the customary manner by elevator or stairs from a reasonably accessible location. Itemized lists or descriptions of contents of Records submitted to FILEBANK, INC. or entered by CLIENT in FILEBANK, INC.’ inventory programs shall be considered for CLIENT’S recordkeeping and reference purposes only and shall not be considered proof that any documents referenced in such lists or descriptions are in fact included in the Records stored at FILEBANK, INC.. Any changes to CLIENT’s locations, user authorization list, and service schedules must be communicated in writing to FILEBANK, INC., and accepted by FILEBANK, INC. in writing, in order to be effective. Any intellectual property or proprietary products used by FILEBANK, INC. in connection with the Services are and shall remain the exclusive property of FILEBANK, INC. or the third parties from whom FILEBANK, INC. has secured the right to use such products. CLIENT acknowledges and agrees that it shall not control the manner, means or methods by which FILEBANK, INC. performs any Services contained herein. CLIENT shall not store in V-Cabinet/TotalAccess or any successor inventory management software, any personally identifiable information, protected health information, or any other information subject to State or Federal regulation governing its disclosure to third parties. FILEBANK, INC. may deploy artificial intelligence (“AI”) to build or improve the quality of FILEBANK, INC.’ services. In its deployment of AI, CLIENT Records will not be copied, exported, exposed to any other client or to any third-party, or saved in any readable or usable form. 6. CLIENT REPRESENTATIONS AND WARRANTIES CLIENT represents and warrants that: (A) it is the owner or legal custodian of all Records and has full authority, without any restrictions, to store and make decisions regarding Services to said Records; (B) it has the right to authorize the destruction of the Records for which CLIENT requests such destruction;  (C) unless CLIENT has informed FILEBANK, INC. in writing otherwise, CLIENT is not a “Covered Entity” or “Business Associate” as defined in 45 CFR Part 160. At such time as CLIENT may become a Covered Entity or Business Associate (if ever), then in the absence of a separate agreement, the terms of the Business Associate Agreement (or Business Associate Subcontractor Agreement if applicable) found at www.FileBankinc.com/baa shall be and are specifically incorporated herein by reference and are binding upon the parties as if fully set forth herein; (D) unless CLIENT has informed FILEBANK, INC. in writing otherwise, neither CLIENT nor its Records are subject to the EU General Data Protection Regulation (“GDPR”); (E) all instructions CLIENT issues to FILEBANK, INC. with respect to the processing of Client Records will comply with all applicable laws; and (F) the performance by FILEBANK, INC. of any order or instruction that CLIENT gives to FILEBANK, INC. with respect to Client Records  will not violate GDPR or any applicable laws. At such time as CLIENT’s Records become subject to GDPR (if ever), then in the absence of a separate agreement, the terms of the GDPR Data Processing Addendum found at www.FileBank, Inc.corp.com/gdpr_terms shall be and are specifically incorporated herein by reference and are binding upon the Parties as if fully set forth herein. CLIENT will  release, indemnify and hold harmless FILEBANK, INC. from any Costs arising from or relating to the breach of CLIENT’s representations and warranties in this Paragraph 6. Except as expressly provided in these Terms and Conditions, FILEBANK, INC. provides all Services AS IS, AS Available and With All Faults, and FILEBANK, INC. expressly disclaims any and all representations and warranties, including any warranty of suitability, or fitness for a particular purpose, or arising out of a course of dealing. 7. PAYMENT CLIENT agrees to pay in full to FILEBANK, INC. all charges invoiced to CLIENT in accordance with FILEBANK, INC.’ then current price schedule(s) (which may be set forth in a Statement(s) of Work), within net thirty (30) days of the date of each invoice. FILEBANK, INC. may modify the price schedule upon thirty (30) days’ prior written notice (which may be by first class mail or email). Time is of the essence for all payments. CLIENT must give written notice of any dispute with any charge in an invoice within thirty (30) days from the date of the invoice and must pay the undisputed portion of the invoice with its notice or it will have waived the right to dispute the charge. Any disputed amounts resolved in favor of CLIENT will be credited to CLIENT’s account and amounts payable to FILEBANK, INC. will be paid within fifteen (15) days of dispute resolution. Payments received may be applied to the oldest invoices due. Amounts not paid by CLIENT when due shall accrue interest at the lesser of 18% per annum, compounded monthly, or the maximum amount allowed by applicable law. CLIENT shall reimburse FILEBANK, INC. upon invoice for all costs and fees, including reasonable attorneys’ fees, incurred by FILEBANK, INC. in collecting any amounts past due. For storage charges each month during the Term, CLIENT shall pay the greater of (A) the storage charges in the Price Schedule or (B) 80% of the highest monthly storage charge for the preceding twelve (12) months. 7A. TERM; AUTO-RENEWAL; CLIENT NON-RENEWAL OF SPECIFIC SUBSCRIPTION SERVICES; STRICT NOTICE 7A.1 Applicability; Subscription Services Only; Exclusion of Project Services This Paragraph 7A applies only to (i) Storage Services (including physical storage of hard copy and media and electronic/digital storage), (ii) ongoing software hosting/subscription products and services, and (iii) recurring Destruction Services provided pursuant to an agreed recurring schedule or route (including scheduled console service and/or scheduled on-site shredding), regardless of whether such scheduled/route services are billed monthly, quarterly, annually, per occurrence, or on another periodic billing cycle (collectively, “Subscription Services”). “Subscription Services” include services billed on a recurring basis, a usage basis (including volume- or activity-based charges billed periodically), or a combination of recurring and usage-based charges (including any monthly minimums, recurring access fees, recurring hosting fees, and variable usage charges billed monthly or on another recurring billing cycle), but only to the extent such services are provided pursuant to an agreed recurring schedule or route. For clarity, Destruction Services performed “as needed,” on-demand, ad hoc, or otherwise not provided pursuant to an agreed recurring schedule/route are excluded from “Subscription Services” for purposes of this Paragraph 7A and are not subject to the Initial Term or Renewal Term provisions in this Paragraph 7A. This Paragraph 7A does not apply to non-recurring, project-based, milestone-based, or deliverable-based services (collectively, “Project Services”), including without limitation conversion services, managed services, and professional services provided on a project or statement-of-work basis.  7A.2 Subscription Services Term; Commencement Unless otherwise stated in a statement of work, order, quote, or other written instrument signed by an authorized officer of FILEBANK, INC., each Subscription Service provided to CLIENT shall have an initial term of twelve (12) months (the “Initial Term”), commencing on the earlier of: (i) the contract start date for the applicable Subscription Service (if stated in the applicable statement of work, order, quote, or other signed writing), or (ii) the date of the first invoice issued by FILEBANK, INC. to CLIENT that includes any line item, charge, fee, credit, adjustment, or other billed amount (whether positive, negative, or zero) for the applicable Subscription Service (whether one-time, pass-through, usage-based, or recurring).  7A.3 Auto-Renewal (Successive 12-Month Renewal Terms; Subscription Services Only) Upon expiration of the Initial Term for a Subscription Service, that Subscription Service shall automatically renew for successive twelve (12) month renewal terms (each, a “Renewal Term”) unless CLIENT provides a valid and timely Notice of Non-Renewal for that specific Subscription Service in strict compliance with this Paragraph 7A.  7A.4 Client-Only Non-Renewal Right; FileBank Remedies Preserved Only CLIENT may elect non-renewal for convenience under this Paragraph 7A. Nothing in this Paragraph 7A limits FILEBANK, INC.’s rights and remedies under Paragraph 9 (BREACH OF TERMS & CONDITIONS) or otherwise at law or in equity, including the right to suspend, refuse, or stop providing Services for nonpayment or material breach.  7A.5 Notice of Non-Renewal (Subscription-Service Specific); Strict Requirements; Paragraph 15.1 Delivery Required  7A.5.1 Definition “Notice of Non-Renewal” means a written notice that states clearly that CLIENT is electing non-renewal at the end of the then-current term for the specific Subscription Service(s) identified in the notice.  7A.5.2 Effective date rule for SOW/Order/Quote references (Paragraph 7A.5 only) For purposes of this Paragraph 7A.5 only, if an applicable statement of work, order, or quote does not expressly state an effective date, then the effective date will be the signature date of such statement of work, order, or quote, meaning the date of signature of either party, whichever is earlier.  7A.5.3 Subscription-service specificity required A Notice of Non-Renewal is valid only if it identifies, with specificity, the Subscription Service(s) CLIENT is electing not to renew, with the level of detail required below, as applicable:  7A.5.3.1 Physical Storage Services (Records in FileBank custody) The CLIENT account name and the applicable storage location(s) and/or warehouse/account identifier(s) used by FILEBANK, INC.  7A.5.3.2 Electronic/Digital Storage (as Storage Services) Identification of the electronic/digital storage subscription to be non-renewed (including the applicable account name and any applicable storage environment, repository, or service package identifier used by FILEBANK, INC.), and, if applicable, the associated statement of work, order, or quote number (or effective date).  7A.5.3.3 Ongoing Software Hosting/Subscription Products Identification of the hosting/subscription product or service package to be non-renewed as described in the applicable statement of work, order, or quote, including either (i) the applicable SOW/order/quote number, or (ii) the effective date of the applicable SOW/order/quote (or both, if available), together with the product/service description/title used in that SOW/order/quote and, if applicable, the specific module(s), subscription(s), or service package(s) listed therein.  7A.5.3.4 Recurring Destruction Services (agreed recurring schedule/route only) The service address(es), the applicable service description, and the agreed recurring schedule/route (including day(s) and frequency, if applicable), and, where Consoles are present at the applicable site(s), the Console count (and, if available, any FileBank-provided equipment identifiers).  7A.5.4 SOW/Order/Quote controls (tie-breaker; applies to all of Paragraph 7A.5) In the event of any inconsistency between how a Subscription Service is labeled on an invoice and how it is described in the applicable statement of work, order, or quote, the statement of work, order, or quote will control for purposes of this Paragraph 7A.5.  7A.5.5 Timeliness To be timely, FILEBANK, INC. must actually receive the Notice of Non-Renewal at least thirty (30) days prior to the end of the then-current term for the applicable Subscription Service(s). Any notice received fewer than thirty (30) days prior to the applicable term end date is untimely and will not prevent renewal for the next Renewal Term.  7A.5.6 Delivery; exclusive methods A Notice of Non-Renewal is valid only if delivered strictly in accordance with Paragraph 15.1 and actually received by FILEBANK, INC. at the notice address specified in Paragraph 15.1.  7A.5.7 Ambiguity; ineffective notice Any notice that is ambiguous, internally inconsistent, or that does not meet the specificity requirements above will be deemed ineffective and the applicable Subscription Service(s) will renew.  7A.5.8 Single Notice Permitted; Flexible Schedule of Subscription Services/Locations CLIENT may provide a single Notice of Non-Renewal that identifies multiple Subscription Service(s) and/or multiple site location(s), provided that such Notice of Non-Renewal is timely for each applicable Subscription Service listed and includes a schedule or other written listing (the “Non-Renewal Schedule”) that clearly and specifically identifies, for each Subscription Service and/or site, the information required under this Paragraph 7A.5, as applicable. No particular form of Non-Renewal Schedule is required.  7A.5.9 Non-Renewal Schedule Must Be Fully Restated in the Notice; No Incorporation by Reference Any Non-Renewal Schedule must be fully stated in the Notice of Non-Renewal itself (or as pages physically attached to and delivered with the same Notice of Non-Renewal in the same Paragraph 15.1-compliant delivery). Incorporation by reference is not permitted.  7A.6 Effect of Valid Subscription-Service Specific Non-Renewal If CLIENT provides a valid and timely Notice of Non-Renewal for specific Subscription Service(s) only, then (i) only the identified Subscription Service(s) will end at the end of the then-current term, and (ii) all other Subscription Services not identified in the Notice of Non-Renewal will continue and will renew automatically under this Paragraph 7A. CLIENT remains responsible for all charges and obligations for the non-renewed Subscription Service(s) through the end of the then-current term, and for all remaining Subscription Services through their applicable terms.  7A.7 Non-Renewal vs. Early Termination Non-renewal prevents the commencement of a new Renewal Term for the specific Subscription Service(s) identified, but does not terminate that Subscription Service before the end of the then-current term. Any request by CLIENT to terminate any Subscription Service(s) prior to the end of the then-current term constitutes an early termination and remains subject to Paragraph 8.1, including any Early Termination Charge and all exit/offboarding/removal charges, as applicable.  8. TERMINATION OF SERVICES 8.1 Termination Process CLIENT shall deliver thirty (30) days' prior written notice to FILEBANK, INC., in strict compliance with Paragraph 15.1, in the event CLIENT desires to terminate any Services and/or in the event CLIENT desires to provide a Notice of Non-Renewal pursuant to Paragraph 7A. Said notice shall advise whether CLIENT will pick up its Records or request FILEBANK, INC. to deliver same, together with a delivery address if applicable. All outstanding invoices must be paid as a precondition to termination of Services. Promptly after receipt of said notice and payment of any outstanding invoices, FILEBANK, INC. will provide an account closing statement containing all applicable charges and an estimated schedule of deliveries (or pickup availability). Storage and other service charges shall continue to accrue after notice of termination until all Records are removed from FileBank, Inc.' facilities(s). Prior to the delivery or removal of any Records, CLIENT shall pay in full in good funds the amount(s) owed on the account closing statement including, but not limited to, retrieval, permanent removal, dock fees, V-Cabinet/TotalAccess and P-Cabinet, delivery, or destruction charges. Notwithstanding the termination of Services: (A) all express indemnification obligations and limitations on liability provided herein shall survive, and (B) a party's liability for breach of these Terms and Conditions occurring prior to such termination shall survive.  8.2 Exit/Termination Disputes If, in connection with any termination or exit process under this Paragraph 8 (including partial termination), a dispute arises regarding site-specific exit items (an “Exit Dispute”), including without limitation: (i) which site(s) are included in the termination notice; (ii) whether Records are to be picked up or delivered and to what address; (iii) which Records and/or quantities (e.g., box/carton counts) are scheduled for retrieval, delivery, permanent removal, destruction, or redelivery; (iv) for Destruction Services at a client site, console counts and related removal scheduling; and/or (v) for digital/software services, the scope of offboarding/export items to be provided, then the parties will use the process in this Paragraph 8 to document and finalize the disputed exit items.  8.3 FileBank Exit Confirmation Within a commercially reasonable time after an Exit Dispute is identified in writing by either party, FILEBANK, INC. may provide CLIENT with a written exit confirmation describing FILEBANK, INC.’s understanding of the site-specific exit items in dispute (the “Exit Confirmation”). The Exit Confirmation may be delivered by email or other reasonable written means. For purposes of this Paragraph 8 only, if the Exit Confirmation is delivered by email to CLIENT’s Designated Notices Email (as defined in Paragraph 15.2), it will be deemed received by CLIENT on the date the email is sent (as reflected in FILEBANK, INC.’s email system records), without any requirement for CLIENT acknowledgement. For clarity, an Exit Confirmation is deemed received on the send date only if emailed to CLIENT’s Designated Notices Email; otherwise, FILEBANK, INC. will deliver the Exit Confirmation via the notice methods in Paragraph 15.1 and it will be deemed received/effective as provided in Paragraph 15.1.  8.4 Optional Remote Verification If CLIENT disputes any portion of the Exit Confirmation, FILEBANK, INC. may (and at CLIENT’s written request, will) offer a remote verification process (the “Remote Verification”) to confirm the item(s) in dispute. Remote Verification may include, as applicable: (A) CLIENT providing photos and/or a live video walkthrough of the applicable site(s); (B) provision by CLIENT of a written attestation (signed by an authorized CLIENT representative) confirming the observed site conditions; and/or (C) other reasonable documentation requested by FILEBANK, INC. to verify the disputed exit items. Remote Verification is a billable service at FILEBANK, INC.’ then-current labor rates and may require prepayment in cleared funds.  8.5 Optional On-Site Walkthrough/Attestation If (i) Remote Verification is not reasonably practicable (including due to site security/access restrictions or inadequate documentation), or (ii) after completion of Remote Verification an Exit Dispute remains unresolved in FILEBANK, INC.’s reasonable judgment, then CLIENT may request an optional on-site walkthrough and verification (the “Walkthrough”). The Walkthrough will be scheduled at a mutually agreed time during normal business hours. At the Walkthrough, FILEBANK, INC. and CLIENT will verify the site-specific item(s) in dispute and CLIENT will provide a written attestation (signed by an authorized CLIENT representative on-site) acknowledging the verified item(s). The Walkthrough is a billable service at FILEBANK, INC.’ then-current labor and travel rates (and any other applicable charges) and may require prepayment in cleared funds.  8.6 Final, Controlling Record FILEBANK, INC. will document the results of the Remote Verification and/or Walkthrough in writing. The site-specific exit information documented by FILEBANK, INC. following the Remote Verification or Walkthrough (or, if neither is completed, FILEBANK, INC.’s Exit Confirmation) will be deemed final and controlling for purposes of scheduling retrieval, delivery, pickup availability, permanent removal, console removal, destruction, and/or digital offboarding/export, and for invoicing applicable exit charges.  8.7 Deadline to Dispute Exit Confirmation CLIENT must deliver written notice of any dispute regarding the Exit Confirmation within thirty (30) days after CLIENT’s receipt of the Exit Confirmation (which, if the Exit Confirmation was delivered by email to CLIENT’s Designated Notices Email, will be the date the email was sent as described in Paragraph 8.3). For purposes of this Paragraph 8.7 only, “written notice” may be delivered either (i) in accordance with Paragraph 15.1, or (ii) by email, provided that (A) the email is sent by CLIENT’s authorized fiduciary or executive (e.g., CFO, General Counsel, Chief Compliance Officer, Corporate Secretary, Managing Member, Partner, or other duly authorized officer with responsibility for CLIENT’s Records and/or contract administration), (B) the email subject line includes “Exit Confirmation Dispute – [CLIENT NAME] – [ACCOUNT/LOCATION],” (C) the email is sent to either CSA@filebankinc.com or Bcopeland@filebankinc.com (or such replacement address(es) as FILEBANK, INC. may designate in writing from time to time), and (D) FILEBANK, INC. acknowledges receipt by return email. If FILEBANK, INC. does not acknowledge receipt by return email within two (2) business days, CLIENT must deliver the dispute notice in accordance with Paragraph 15.1 within the original thirty (30) day deadline. If CLIENT does not deliver such written notice within that thirty (30) day period, CLIENT will be deemed to have accepted the Exit Confirmation, and CLIENT waives the right to dispute the Exit Confirmation and the site-specific exit items described therein. For clarity, this Paragraph 8.7 applies only to disputes regarding the Exit Confirmation and does not alter or extend any rights, deadlines, or procedures applicable to disputes regarding invoices, the account closing statement, or any other charges.  8.8 No Waiver; Payment and Release Conditions Unchanged Nothing in this Paragraph 8 limits or modifies CLIENT’s payment obligations, FILEBANK, INC.’s right to require payment in good funds prior to delivery/removal, or the continued accrual of charges until Records are removed and the account is closed, all as set forth in this Paragraph 8. 9. BREACH OF TERMS & CONDITIONS If CLIENT fails to pay any amount due hereunder when due, or otherwise materially breaches these Terms and Conditions, FILEBANK, INC., at its option, may stop providing Services upon written notice and seek recovery of damages resulting from CLIENT’s nonpayment or other breach, or exercise any or all of the following remedies without terminating Services: (A) if any amounts owed by CLIENT are outstanding for forty-five (45) days or more past the invoice date, FILEBANK, INC. may either (i) redeliver CLIENT’s Records to CLIENT (for which permanent removal, delivery, preparation of inventory reports, data extraction, and other charges will apply), or (ii) refuse or suspend Services and CLIENT’s FileBank, Inc. to Records until all outstanding invoice(s) are paid in full. If Services are suspended, CLIENT will remain responsible for payment of all charges accruing during such suspension; (B) if CLIENT is in arrears in its payment obligations for a period of three (3) months or longer past the invoice date, Records will be deemed abandoned and FILEBANK, INC. may destroy the Records at CLIENT’s expense and without liability to CLIENT, following ten (10) business days’ advance written notice of such destruction; and/or (C) exercise such other rights and remedies as may be allowed at law or in equity as if specific remedies were not herein provided. In the event FILEBANK, INC. takes any actions in accordance with this Paragraph, it shall have no liability to CLIENT, and CLIENT hereby will release, indemnify, and hold harmless FILEBANK, INC. from any Costs arising from or relating to any actions taken by FILEBANK, INC. in accordance with this Paragraph, including the disposal or destruction of any materials. All remedies provided herein are cumulative and may, at the election of FILEBANK, INC., be exercised alternatively, successively or in any other manner. FILEBANK, INC. shall be entitled to its reasonable attorneys’ fees, whether or not any litigation or other action is commenced, in the event of any breach by CLIENT of these Terms and Conditions. With respect to FILEBANK, INC.’ right to dispose of the Records under 9(B) above, CLIENT acknowledges that, because the Records have minimal or no value to a third-party and Confidential Information (defined below) may be unlawfully exposed, the sale of the Records would not be reasonably possible, and the disposal of the Records is the only reasonable way for FILEBANK, INC. to mitigate its damages. 10. CONFIDENTIALITY FILEBANK, INC. acknowledges that it may store and have FileBank, Inc. to: (A) Records that may be of a confidential nature relating to CLIENT’s property, business and affairs, and/or contain personal information of individuals that may be protected by law from unauthorized disclosure, or (B) other non-public and proprietary information of the CLIENT in connection with the Services. CLIENT acknowledges that it will have FileBank, Inc. to proprietary and confidential information of FILEBANK, INC., whether or not such information is marked proprietary or confidential, including but not limited to pricing, audit reports or attestations, SOPs, financial information, technical information, and coding relating to FILEBANK, INC.’ software and inventory programs, as well as its vendors. (The confidential and proprietary information of both parties is hereinafter referred to as “Confidential Information”). Each party shall exercise the same degree of care in safeguarding Confidential Information of the other party that a careful and reasonable company would exercise with respect to similar records of its own. In no event shall FILEBANK, INC.’ duty of care be less than to implement, maintain and use reasonable and appropriate administrative, technical, and physical safeguards to preserve the privacy, integrity, confidentiality, and availability of CLIENT’s Confidential Information.  Without limiting the obligations of the parties to safeguard Confidential Information, neither party shall disclose Confidential Information to competitors, customers, or potential customers of the other party. The liability of FILEBANK, INC. for any unauthorized disclosure of any Confidential Information shall be limited as set forth in Paragraph 11 hereof. FileBank, Inc. to Confidential Information of a party shall be restricted by the receiving party to those individuals necessary to perform the Services hereunder or to properly utilize the Confidential Information for its intended purposes in connection with the Services, each of whom shall be subject to keep the Confidential Information confidential.  In the event that a party is under a legal obligation to disclose Confidential Information (or to disclose Records that may not constitute “Confidential Information” of CLIENT), that party may do so without breach of these Terms and Conditions so long as, to the extent lawful and reasonably possible, the other party is provided prior written notice. The party legally required to disclose Confidential Information shall be reimbursed legal fees and costs for compliance with any such legal obligation. Confidential Information shall not include information that (A) is or may become publicly available without breach of these Terms and Conditions, (B) was possessed by one party prior to receipt from the other party, or (C) is or becomes lawfully available to a party from a third party free of confidentiality obligations. 11. LIABILITY LIMITATIONS A. Declaration of Valuation. CLIENT declares the value of all Records to be (A) $1.00 per box, carton, linear foot of open shelf files or other hard copy storage unit (or gigabyte of digital records) or (B) the actual replacement cost for the physical media with respect to tapes, cartridges, cassettes or other non-paper media, unless CLIENT declares a different valuation in writing to FILEBANK, INC., the receipt of which FILEBANK, INC. acknowledges in writing, and for which CLIENT pays an additional agreed upon fee for the storage of its Records. B. Stored Records and Electronic Media. FILEBANK, INC. shall not be liable for any loss or damage to Records, however caused, unless such loss or damage results from a failure by FILEBANK, INC. to exercise that care that a reasonably careful person would exercise under like circumstances, in which case FILEBANK, INC.’ liability, if any, for such loss or damage to Records shall not exceed the valuation in Paragraph 11A above. Without limiting the generality of the foregoing, FILEBANK, INC. is not liable or responsible for (i) loss or damage arising from Acts of God, casualty, gradual deterioration of Records or media, vermin, labor disturbances, any governmental act or other cause beyond its reasonable control, or (ii) the repair, replacement or restoration of lost or damaged images, data or other property. Records are not insured by FILEBANK, INC. against loss, damage or destruction, however caused. CLIENT must insure all Records at its own expense. CLIENT shall cause such insurers of Records to waive any right of subrogation or any other method of recovery against FILEBANK, INC. and shall indemnify FILEBANK, INC. from any loss or damages resulting from its failure to do so. C. Other Claims. FILEBANK, INC.’ maximum liability with respect to (i) the unauthorized disclosure of Confidential Information shall be six (6) months of total charges paid by CLIENT; (ii) any Storage or Destruction Services rendered hereunder is six (6) months of charges paid by CLIENT for such Services immediately preceding the service from which the claim arose. D. Certain Damages. FILEBANK, INC. WILL NOT IN ANY EVENT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) RELATED TO THESE TERMS AND CONDITIONS OR ARISING FROM THE SERVICES, UNDER ANY CAUSE OF ACTION WHATSOEVER, INCLUDING CONTRACT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE, EVEN IF FILEBANK, INC. HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. E. Other. FILEBANK, INC. will not be liable for any loss or damage occasioned by any misunderstanding of orders or instructions received from any ostensible CLIENT employee or representative. FILEBANK, INC. will not be responsible for mis-deliveries made in good faith in reliance on orders given by any ostensible employees or representatives of CLIENT. With respect to obligations not otherwise addressed in this Paragraph 11, FILEBANK, INC.’ liability shall not exceed the amount paid to FILEBANK, INC. by CLIENT for such Service for the three (3) month period preceding the claim by CLIENT. The limitations of liability in this Paragraph 11 and otherwise in these Terms and Conditions shall apply irrespective of the cause of loss, damage, or destruction of Records or Services and CLIENT acknowledges that the amounts it is charged for Services reflect that FILEBANK, INC. is relying on such limitations of liability. 12. CLAIMS AND DISPUTE RESOLUTION/ARBITRATION A. A written claim by CLIENT for loss, damage or destruction of Records must be made not later than thirty (30) days after: (A) redelivery of Records to CLIENT; or (B) CLIENT is notified by FILEBANK, INC. of loss, damage or destruction of Records; or (C) CLIENT otherwise has notice or knowledge of such loss, damage or destruction, whichever is shorter. Such timely written claim is a condition precedent to recovery. Notwithstanding the foregoing, no action, regardless of form, arising out of or in connection with the Services (other than an action by FILEBANK, INC. for any amount due to FILEBANK, INC.) may be brought more than one year after the cause of action has arisen, except as may otherwise be required by applicable law. FILEBANK, INC. and CLIENT shall use reasonable efforts to resolve by negotiation any claim, controversy, or dispute arising out of or relating to the Services, for a period of at least fifteen (15) days after such claim or other dispute arises. B. If FILEBANK, INC. and CLIENT are unable to resolve any claim, controversy, or dispute as provided in Paragraph 12(A), then any dispute, claim, or controversy arising out of or relating to these Terms and Conditions or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of its dispute resolution provisions shall be determined by binding and final arbitration in State of New Jersey before a single arbitrator. The parties agree: (A) to arbitrate solely on an individual basis, and (B) that these Terms and Conditions do not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Any arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator has no right to vary, modify or supplement these Terms and Conditions or change or limit FILEBANK, INC.’ practices, policies or procedures. 13. INDEMNIFICATION FILEBANK, INC. and CLIENT shall each indemnify the other and the other’s affiliates, employees, officers, and directors from and against all Costs for bodily injury, including death, or for damage to real or tangible personal property (other than Records) to the extent negligently caused by the indemnifying party. 14. MODIFICATION OF TERMS AND CONDITIONS FILEBANK, INC. may modify these Terms and Conditions from time to time. Such modifications shall be posted on www.FileBank, Inc.corp.com/FileBank, Inc.-service-terms-and-conditions, and shall take effect on the first day of the second month following their publication. 15. MISCELLANEOUS 15.1 Notices All notices required to be given under Paragraphs 7A, 8 and 9 of these Terms and Conditions, and claims arising from the Services, shall be in writing and delivered either personally or by registered or by certified mail, postage prepaid, or by recognized overnight courier service to the following addresses: to CLIENT- the address designated by CLIENT for delivery of invoices to CLIENT; to FILEBANK, INC .- 23 Thornton Road, Oakland, NJ 07436 Attention: Legal Dept. or at such other place as either of the parties may from time to time designate in writing in a notice given in accordance with this provision. Notice shall be effective on the date of actual personal service or the third business day after the postmark on the registered or certified mail, as the case may be, or on the date of delivery to such address if sent by recognized overnight courier service.  15.2 Designated Notices Email CLIENT may designate and maintain a separate email address for receipt of the Exit Confirmation (as defined in Paragraph 8.3) (the “Designated Notices Email”). CLIENT shall provide any Designated Notices Email to FILEBANK, INC. in writing. CLIENT may change its Designated Notices Email only by providing written notice to FILEBANK, INC. in accordance with this Section 15, and such change shall be effective only upon FILEBANK, INC.’s receipt of such notice. If no Designated Notices Email is on file for CLIENT at the time FILEBANK, INC. issues an Exit Confirmation, then FILEBANK, INC. shall deliver the Exit Confirmation via the notice methods set forth in Paragraph 15.1, and the Exit Confirmation will be deemed received/effective exactly as provided in Paragraph 15.1. For clarity, the Designated Notices Email is used only for Exit Confirmations and does not modify or expand the permitted methods for delivery of any notices required under Paragraphs 7A, 8 or 9 (which are governed by Paragraph 15.1), except as expressly provided in Paragraph 8.7.  15.3 Assignment; transfer of custody These Terms and Conditions bind the CLIENT and its transferees, heirs, executors, successors, and assigns. FILEBANK, INC. may transfer custody of all Records and assign all Services to a third party. Notice of such transfer and assignment shall be given to CLIENT following the occurrence of the same.  15.4 No third-party beneficiaries Nothing in these Terms and Conditions, whether express or implied, is intended to create or confer any rights or remedies in favor of any parties other than FILEBANK, INC. and CLIENT and their respective successors and permitted assigns, nor shall any provision give any third party any rights or remedies against FILEBANK, INC. or CLIENT.  15.5 Severability If any provision of these Terms and Conditions is determined to be illegal or otherwise unenforceable by an arbitrator or a court of competent jurisdiction with respect to a CLIENT then, to that extent it shall be limited, or severed and deleted from these Terms and Conditions, and the remaining portions hereof shall survive, remain in full force and effect and shall, with respect to such CLIENT, be interpreted to give effect to the original intention of these Terms and Conditions.  15.6 No waiver by failure to enforce The failure of either party to otherwise exercise any of its rights hereunder or to require the performance of any term or provision hereof, or the waiver by either party of any breach hereof, shall not prevent a subsequent exercise or enforcement of such rights or be deemed a waiver of any subsequent breach of the same or any other term or provision hereof.  15.7 Waiver must be in writing A waiver of any right under these Terms and Conditions shall be effective only if in writing and signed by the authorized officer of party against which such waiver is to be enforced.  15.8 Governing law; arbitration act; venue; forum non conveniens waiver These Terms and Conditions and the provision of Services by FILEBANK, INC., shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to the principles of the conflicts of law, provided, however, that Paragraph 11 and any arbitration conducted pursuant to the these Terms and Conditions shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). The parties hereby consent to the exclusive jurisdiction of the applicable Federal or New Jersey State Courts with jurisdiction of Suffolk County, New Jersey, as the venue for any legal action arising out of or relating to these Terms and Conditions. CLIENT waives all claims of forum non-conveniens. Follow-up question Do you want this combined paste block to also include a short “INSERT HERE” marker line showing exactly where to place it (between Paragraph 7 and Paragraph 8), or leave it as-is? bcopeland@filebankinc.com yes Nova Combined paste block with INSERT HERE markers (place between Paragraph 7 and Paragraph 8) Copy/paste the block below into Word exactly where your current document transitions from 7. PAYMENT to 8. TERMINATION OF SERVICES. [INSERT HERE — place immediately after the end of Paragraph 7. PAYMENT and before Paragraph 8. TERMINATION OF SERVICES] END OF TERMS AND CONDITIONS