ON POINT BUSINESS ADMINISTRATION INC.
SERVICE TERMS AND CONDITIONS
(last updated April 2019)
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY, SINCE USING THIS WEBSITE AND THE SYSTEMS AND SERVICES OF ON POINT BUSINESS ADMINISTRATION (“ON POINT”), OR PAYING FOR THEM, CREATES A BINDING LEGAL AGREEMENT. NO CHANGES BY YOU TO THESE TERMS AND CONDITIONS WILL BE ACCEPTED. ON POINT MAY CHANGE, ADD OR REMOVE ANY PART OF THIS AGREEMENT AT ANY TIME. SUCH UPDATES WILL BE POSTED ON ANY APPLICABLE ON POINT ONLINE PORTAL OR OTHERWISE MADE AVAILABLE TO YOU. IF ANY FUTURE UPDATES ARE UNACCEPTABLE TO YOU, YOU SHOULD DISCONTINUE USING THE SERVICES THEY APPLY TO. YOUR CONTINUED USE OF THE SERVICES OR PAYING FOR THEM, NOW OR FOLLOWING THE POSTING OF A REVISED VERSION OF THIS AGREEMENT, WILL INDICATE YOUR ACCEPTANCE OF THESE TERMS AND ANY SUCH REVISED VERSION.
The provision of the Services (defined below) by On Point is subject to the terms and conditions set forth below. You, on behalf of the On Point customer identified in On Point’s records (“Customer”), (i) acknowledge that you have read and understand these terms and conditions together with On Point’s other written information pertaining to the Services (collectively, this “Agreement”), (ii) agree to the terms of this Agreement and (iii) agree to the terms of any future versions of this Agreement that On Point posts on the applicable online portal or otherwise makes available to you. This Agreement will be effective as of the date Customer first uses the Services (the “Effective Date”). Customer and On Point are sometimes referred to in this Agreement separately as a “Party” or together as the “Parties.”
1. SERVICES AND FEES
1.1 Provision and Use of the Services. On Point, itself or through one or more of its affiliates, subcontractors or other agents (“On Point Parties”), will provide to Customer the services requested by Customer or a Customer User (defined below) as described in On Point’s written information pertaining to the Services (the “Services”), subject to the terms and conditions set forth herein. Customer will perform all Customer responsibilities and obligations set forth in this Agreement and will be responsible for the performance of its affiliates, personnel, subcontractors, agents, advisors, representatives and other permitted third parties (“Customer Users”) and will otherwise cooperate with On Point in connection with its provision of the Services. Customer will use the Services only for the internal business purposes of Customer and Customer Users and will be responsible for (i) ensuring that each of its Customer Users receiving the Services complies with the terms of this Agreement and (ii) for any breach of the terms of this Agreement by any Customer User to the same extent as if such Customer User were “Customer” hereunder. Customer Users will not include any competitors of On Point, and Customer will not permit any third party to use the Services or On Point Products in any way whatsoever without the prior written consent of On Point. Without limiting the foregoing, Customer will not, and will not permit any person or entity to, offer or use the Services for the benefit of any affiliated or unaffiliated third parties, including in any computer service business, service bureau arrangement, outsourcing or subscription service, time sharing or other participation arrangement. Customer will not use the Services in a manner contrary to or in violation of any applicable federal, state, or local law, rule, or regulation.
1.2 Customer Information and Instructions. Customer acknowledges and agrees that performance of the Services will be dependent on the timely completion of Customer’s responsibilities and obligations under this Agreement and that additional fees may apply with respect to any modifications to standard documents or processes made by Customer or at Customer’s request. Notwithstanding anything to the contrary herein, Customer will be responsible for (i) the accuracy and completeness and the compliance, sufficiency and effectiveness under applicable law of all data, documents, templates or other information provided to On Point or entered into On Point’s system by Customer or Customer Users or on their behalf, or otherwise modified by them or at their request, and (ii) the consequences of any instructions given by Customer or any Customer User to On Point.
1.3 Fees. For Services performed by On Point or any On Point Party under this Agreement, Customer hereby agrees to pay On Point the applicable fees in accordance with On Point’s then- current standard fee schedules for such Services (or as otherwise agreed by the Parties) and Section 5 below. Customer will also be invoiced for all additional fees (if any) advanced by On Point on behalf of Customer or a Customer User including taxes, statutory filing and other fees, correspondent, courier messenger or delivery charges, and any other fees or charges advanced by On Point. On Point reserves the right to modify the Fees from time to time. All fees, expenses and other charges will be billed and paid in US Dollars (“USD”).
2.TERM. The term of this Agreement will be effective as of the Effective Date and continue until terminated as set forth herein (the “Term”).
Termination. Either Party may terminate this Agreement or a particular Service (i) if the other Party fails to perform any material obligation of this Agreement (including the payment of amounts owed) and such breaching Party fails to take good faith steps to cure such failure within thirty (30) days after notice from the other Party specifying such failure in reasonable detail or (ii) if the other Party seeks protection or commences any action under applicable bankruptcy laws or similar laws regarding insolvency or relief for debtors. On Point may terminate this Agreement at any time if legally required or upon belief of Customer’s illegal or improper use of the Services.
Termination for Convenience. Either Party may terminate the Services or this Agreement at any time during the Term upon 180 days’ prior written notice to the other Party.
Effect of Termination. In the event of any such termination, (i) Customer will pay On Point for Services (a) provided under this Agreement to Customer up through the date of termination and (b) that On Point is legally required to provide to Customer following termination, (ii) with respect to Registered Agent Services, Customer will also pay all fees in connection with the removal of On Point’s name as its Registered Agent in the applicable Secretary of States’ or other governmental offices, and (iii) all rights (including any access and use rights and licenses) granted to Customer by On Point under this Agreement related to the terminated Services will be terminated.
4.TAXES. Unless otherwise provided in this Agreement, Customer will pay all sales, consumer, use and similar taxes in connection with the Services (other than taxes on On Point’s net income).
5.STATEMENTS AND PAYMENT TERMS. On Point will submit to Customer a reasonably detailed invoice which will set forth the Services used by, or provided to, Customer during the applicable period and the fees charged for such Services, consistent with the terms of this Agreement. Customer agrees to pay On Point the applicable invoice amount within thirty (30) days of receipt of such invoice. All such fees and other amounts payable under this Agreement will be referred to as the “Fees.” All amounts set forth in invoices not paid in full by Customer within thirty (30) days are subject to a late fee of 1.75% per month (or, if less, the maximum rate allowable by law) plus all costs of collection, including reasonable attorneys’ fees. In the event of a bona fide good faith dispute as to an item on any such invoice, Customer will promptly, but no later than fifteen (15) days after receipt of such invoice, give written notice to On Point stating the details of any such dispute and will promptly pay any undisputed amounts on such invoice. The Parties will work in good faith to promptly agree upon a resolution to any disputed items on such invoice. On Point reserves the right to suspend access to and performance of the Services to any delinquent account without notice. Except as otherwise expressly set forth, On Point reserves the right to modify the Fees from time to time.
6. OWNERSHIP RIGHTS. All intellectual property rights in the Services and products (including related tutorials and documentation) provided or made available to Customer or a Customer User by On Point as a part of the Services (including all improvements, enhancements, modifications or updates) (“On Point Products”) will remain the exclusive and sole property of On Point or the third parties from whom On Point has obtained the right to use the On Point Products. Intellectual property created by On Point pursuant to this Agreement will be owned by On Point. During the Term, Customer will have a personal, non-transferable, non-exclusive right to access and use the On Point Products (including any applicable On Point online portal) in connection with the Services solely as set forth in Section 1.1 above. Customer will retain all intellectual property rights in all Customer data, proprietary information and materials provided by Customer to On Point in connection with the use and receipt of the Services. Customer grants On Point a non-exclusive license to use such data, information, and materials for the purpose of providing Services to Customer.
7.DISCLAIMERS. ON POINT PROVIDES THE SERVICES AND ANY RELATED DOCUMENTATION, SOFTWARE OR EQUIPMENT AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. ON POINT DISCLAIMS AND EXCLUDES ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND ON POINT WILL HAVE NO LIABILITY THEREFOR. NO EMPLOYEE OR AGENT OF ON POINT OR OF ANY ON POINT PARTY IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT. ON POINT IS NOT ENGAGED IN RENDERING LEGAL OR OTHER PROFESSIONAL ADVICE OR SERVICES. THE SERVICES DO NOT INCLUDE THE PROVISION OF LEGAL, ACCOUNTING OR OTHER PROFESSIONAL ADVICE AND SHOULD NOT BE RELIED UPON AS SUCH. IF LEGAL OR OTHER EXPERT ASSISTANCE IS REQUIRED, CUSTOMER SHOULD CONSULT WITH ITS LEGAL COUNSEL OR OTHER APPROPRIATE ADVISORS. On Point and its data providers and licensors cannot and do not accept any liability for delays, errors or omissions in the information provided by state or other governmental or third party information providers or filing or recording systems, nor does On Point accept any liability with respect to the disclosure or Customer’s use of information or records that may contain personally identifiable informationLIMITATION OF LIABILITY
8.LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS, REVENUES, SALES, SAVINGS, BUSINESS OR DATA OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, REGARDLESS OF THE FORM OF THE CLAIM OR ACTION (WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, STATUTE OR ANY OTHER LEGAL THEORY) AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLE EXISTENCE OF SUCH LOSSES OR DAMAGES.
8.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ON POINT’S TOTAL AND CUMULATIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF (I) $10,000 AND (II) AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO ON POINT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST ON POINT BY CUSTOMER.
8.3 On Point is not an insurer with regard to the Services. The fees for Services rendered, as well as the limitations of liability and remedy, are a reflection of the risks assumed by the Parties. Under no circumstances will On Point, any On Point Party or any of its affiliates, suppliers, licensors, data providers, contractors or agents be liable for any loss of underlying collateral or loss (or decreased priority) of security interest in connection with the Services. CUSTOMER’S SOLE REMEDY FOR BREACH BY ON POINT WILL BE A REFUND OF FEES PAID FOR THE SERVICE IN QUESTION.
9.INDEPENDENT CONTRACTOR. On Point is acting in performance of this Agreement as an independent contractor.
10.ASSIGNMENT. Neither this Agreement nor any of Customer’s rights or obligations under this Agreement, may be assigned by Customer without the prior written consent of On Point. Any assignment by On Point will not release On Point from its obligations under this Agreement. This Agreement will be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assigns.
11.COMMUNICATIONS. All legal notices under this Agreement will be in writing and will be deemed to have been duly given: (a) on the date of service if served personally on the Party hereto to whom notice is to be given; (b) on the day after delivery to Federal Express or similar overnight carrier or the Express Mail Service maintained by the United States Postal Service; or (c) on the fifth day after mailing, if mailed to the Party to whom such notice is to be given, by first class mail, postage prepaid and properly addressed, to the Party as follows: (i) if to On Point: On Point Business Administration Inc., 7317 West 79th Street, Overland Park, Kansas 66204, Attention: President, and (ii) if to Customer, to its account address on file with On Point. Any Party may change its address for the purpose of this Section by giving the other Party written notice of its new address in the manner set forth above.
12.SURVIVAL. This provision and all provisions of this Agreement relating to proprietary rights, warranties, disclaimers, limits of liability, dispute resolution and related provisions will survive the completion of the Services or any earlier termination or expiration of this Agreement.
13.INTERPRETATION. The section headings in this Agreement are for convenience only and do not control the interpretation of this Agreement.
14.PUBLICITY. Neither Party will use the trademark, service mark, logo or other commercial or product designations of the other Party in any way, in print or electronic format or on a web or internet site, without the prior written consent of the other Party in each instance, unless it relates directly to the provision of Services hereunder; provided, however, On Point will be entitled to include Customer’s name or logo on On Point’s website and customer reference lists without the prior written consent of Customer.
15.APPLICABLE LAW; DISPUTE RESOLUTION; CLASS ACTION AND JURY TRIAL WAIVER.
15.1 This Agreement will be governed by, and construed and adjudicated under, the laws of the State of Missouri without giving effect to any law or statutory provision which would require or permit the application of the laws of another jurisdiction, except to the extent that the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of the arbitration provisions of this Agreement. The Uniform Computer Information Transactions Act (“UCITA”) does not apply to this Agreement.
15.2 In the event of any controversy or claim arising out of or relating to the Services (a “Dispute”), the parties shall attempt to reach a resolution of the Dispute that is acceptable to them. If the parties do not reach a resolution within sixty (60) days after written notice of the Dispute from the party making the claim, then the Dispute shall be settled by arbitration as described below.
15.3 If the Dispute is between On Point and a party with its primary residence or principal place of business outside the United States or any of its territories, the Dispute shall be settled by arbitration in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution in effect at the time of the Dispute, the international division of the American Arbitration Association (the “International Rules”). The hearing locale shall be Kansas City, Missouri or another location mutually agreed upon by the parties. The arbitration shall be conducted in English. If the amount in controversy is $500,000 USD or less, one arbitrator shall be appointed in accordance with the International Rules. If the amount in controversy exceeds $500,000 USD, three arbitrators shall be appointed in accordance with the International Rules.
15.4 If the Dispute is between On Point and a party with its primary residence or principal place of business within the United States or any of its territories, the Dispute shall be settled by arbitration in accordance with the Commercial Rules of the American of Arbitration Association (the “Commercial Rules”), and be administered by the AAA. The hearing locale shall be Kansas City, Missouri or another location mutually agreed upon by the parties. All issues are for the arbitrator to decide, except that issues relating to the scope, enforceability, and interpretation of this arbitration provision shall be for the court to decide. Any party to the arbitration proceeding may appeal the award to a three-arbitrator panel administered by the AAA by written notice of appeal within thirty (30) days from the date of entry of the written arbitration award. Any award of injunctive relief shall be stayed during any such appeal. The members of the three-arbitrator panel shall be selected according to the Commercial Rules. The three-arbitrator panel shall issue its decision within 120 days after the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, subject to any judicial review that exists under the FAA.
15.5 NO PARTY IS PERMITTED TO BRING ANY CLAIM AS A PLAINTIFF OR MEMBER OF A CLASS IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THE PARTIES WAIVE THEIR RIGHTS TO TRIAL BY JURY. Each Party acknowledges it has received or has had the opportunity to receive, the advice of competent legal counsel.
16.SEVERABILITY. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision will be enforced to the extent it is declared to be legally enforceable, and the balance of this Agreement will remain in full force and effect.
17.AMENDMENTS. No amendment or modifications to this Agreement made by Customer will be valid or enforceable unless in writing and executed by the authorized representatives of Customer and On Point.
18.WAIVER. A Party may not waive a right or remedy except pursuant to a writing executed by such Party. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion. The rights and remedies of the Parties set forth in this Agreement are not exclusive of but are cumulative to, any rights or remedies now or subsequently existing at law, in equity or by statute.
19.FORCE MAJEURE. Neither Party will be liable for failure or delay in performance of its obligations under this Agreement (other than Customer’s obligation to pay the Fees for Services provided) when such failure or delay is caused by events or causes beyond the control of such Party, including, without limitation, any of the following events: acts of God, extreme weather, natural calamities, labor strikes or unrest, terrorist attacks, government actions, power outages and disruptions in communication lines.
20.NO THIRD-PARTY BENEFICIARIES. The Parties intend that this Agreement will not benefit or create a right or cause of action in or on behalf of any person or entity, other than the Parties.
21.ENTIRE AGREEMENT. This Agreement, together with all of On Point’s subscription forms, order forms, other documents, and terms that Customer accepts, constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties, and there are no warranties, representations or agreements between the Parties in connection with the subject matter hereof except as set forth in this Agreement. Neither Party will be bound or liable to the other Party for any representation, warranty, promise, covenant or understanding made by any agent, employee or other person that is not embodied in this Agreement. Purchase orders, work orders or similar documents generated by Customer but not prepared by On Point will be for Customer’s internal administrative purposes only and the terms and conditions contained in any such purchase orders, work orders or similar documents will have no force and effect and will not amend or modify this Agreement.