Terms and Conditions
for Services
1. Applicability.
These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Advantage Surveillance, LLC (“Vendor”) to the client designated in the quotation (“Client”). The accompanying quotation attached hereto (“Quotation”) and these Terms (collectively, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Quotation, these Terms shall govern. These Terms prevail over any of Client’s terms and conditions or any other document issued by Client, which are hereby rejected, regardless of whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
2. Services.
During the Term, Client may from time to time request in writing that Vendor perform certain surveillance, investigative and related services, as further described on the Quotation (“Services”). Vendor may, but is not obligated to, accept any such request. Vendor may accept a request in writing or by commencing performance of the Services. Client shall provide all information that Vendor deems necessary for Vendor to perform the Services. Client acknowledges and agrees that in connection with Vendor’s performance of the Services, Client may disclose: (a) personal information such as a name, address, telephone number; (b) information which would be considered "non-public personal information" within the meaning of Title V of the Gramm-Leach Bliley Act of 1999 and its implementing regulations, as same may be amended from time to time; (c) information which would be considered "individually identifiable health information" within the meaning of the Health Insurance Portability and Accountability Act; and (d) information which is protected from disclosure by other applicable federal or state laws and regulations regarding privacy (collectively, “PII”).
3. Termination.
This Agreement commences on the date stated on the Quotation and shall remain in full force and effect until the Services have been fully performed, unless otherwise terminated as provided herein. In addition to any remedies that may be provided under this Agreement or available at law or in equity, either party may terminate this Agreement with immediate effect upon written notice to the other party, if the other party breaches this Agreement and fails to remedy such breach within fifteen (15) days of receipt of written notice thereof. Upon termination of this Agreement for any reason, Client shall promptly pay to Vendor any unpaid balance owing for Services rendered and expenses incurred prior to the date of termination.
4. Fees and Payment.
The fees for the Services shall be as set forth on the Quotation. All fees are exclusive of, and Client is solely responsible for, all sales, use and excise taxes, and other any similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Client hereunder. Vendor shall submit invoices to Client each month for all Services performed during the previous month. Client shall reimburse Vendor for all reasonable expenses incurred in accordance with the performance of the Services as stated in an invoice, provided that Vendor shall provide receipts and reasonable supporting documentation upon request. Client shall pay properly submitted invoices within thirty (30) days of receipt. Client shall not delay payment for invoice items not in dispute. Vendor may suspend its performance of the Services if Client fails to pay any amounts due hereunder within five (5) days of the due date.
5. Insurance Requirements.
Vendor shall maintain commercial general liability insurance and such other insurance as Vendor may deem necessary in connection with its performance of the Services. Vendor shall provide a certificate of insurance evidencing such coverage to Client upon request.
6. Indemnification.
a. By Vendor.
Vendor shall defend, indemnify and hold harmless Client, its affiliates and their officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, demands, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including attorneys’ fees, arising out of a third party claim, to the extent caused by: (i) any bodily injury, sickness, disease or death, or injury to or destruction of property caused by the negligent acts or omissions of the Vendor, in connection with the performance of the Services; and (ii) Vendor’s violation of applicable law.
b. By Client.
Client shall defend, indemnify and hold harmless Vendor, its affiliates and their officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, demands, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including attorneys’ fees, arising out of a third party claim, to the extent caused by: (i) Client’s negligence or willful misconduct; (ii) Client’s disclosure of PII and Vendor’s use thereof in connection with Vendor’s performance of the Services; and (iii) Client’s violation of applicable law.
7. Confidentiality.
All non-public, confidential or proprietary information of either party, including but not limited to ideas, techniques, data, programs, documentation, processes, know-how, customer lists, account lists, policy lists or information, renewal and expiration dates of policies, details of any service or other agreements, business and claims of any customer account, policy holders businesses, claims and coverages, details of any services provided for an account or policyholder, marketing plans, financial and technical information trade secrets, pricing, business operations, PII and any other secret and confidential information exchanged by Vendor and Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement, is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the disclosing party in writing. Upon disclosing party's request, the receiving party shall promptly return all documents and other materials received from disclosing party. The disclosing party shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by the receiving party on a non-confidential basis from a third party.
8. Information Security.
Each party shall fully comply with applicable data protection and privacy laws. Each party represents that it has developed and implemented, and covenants that it will maintain, effective information security policies and procedures that include administrative, technical, and physical safeguards designed to: (a) ensure the confidentiality, security, integrity, and availability of PII; (b) protect against anticipated threats or hazards to the confidentiality, security, integrity, and availability of PII; (c) protect against unauthorized access or use of PII; and (d) ensure the proper disposal of PII.
9. Representations and Warranties.
a. By Vendor.
Vendor represents and warrants that: (i) it will perform the Services in a professional and workmanlike manner; and (ii) it has obtained and will maintain during the Term all local, state, and federal licenses, registrations, authorizations, and certifications required for it perform the Services.
b. By Client.
Client represents and warrants that it has the right and authority to disclose all PII provided to Vendor by Client in connection with Vendor’s performance of the Services, and that such disclosure and Vendor’s use thereof in connection with Vendor’s performance of the Services is not in violation of applicable law.
c. Limitation.
In the event that any Services fail to conform to the warranties set forth in Section 9(a), Vendor shall, at Vendor’s election, re-perform or provide a refund for the non-conforming Services. THE REMEDIES SET FORTH IN THIS SECTION 9(c) SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND VENDOR’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES SET FORTH HEREIN. VENDOR MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR CONFORMANCE TO DESCRIPTION, OR WARRANTIES ARISING FROM COURSE OF DEALING, TRADE PRACTICE OR OTHERWISE.
10. Limitation of Liability.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (a) EACH PARTY WAIVES ANY CLAIM AGAINST THE OTHER FOR ITS OWN LOST PROFITS OR LOSSES DUE TO BUSINESS INTERRUPTIONS, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES, HOWEVER THE SAME MAY BE CAUSED, REGARDLESS OF THE FAULT, NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE OR OTHERWISE), PRE-EXISTING DEFECT, OR STRICT LIABILITY OF THE RELEASED PARTY DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT; AND (b) CLIENT AGREES THAT VENDOR’S ENTIRE LIABILITY, AND CLIENT’S EXCLUSIVE REMEDY, IN LAW AND EQUITY OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT, IS SOLELY LIMITED TO THE AMOUNTS PAID BY CLIENT TO VENDOR FOR THE SERVICES TO WHICH THE APPLICABLE CLAIM RELATES.
11. Notice.
Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other party at the addresses set forth on the first page of this Agreement (or to such other address that the receiving party may designate from time to time in accordance with this section). Each party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile, or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid).
12. Force Majeure.
Vendor will not be liable for any delay or failure in the performance under this Agreement, if such delay or failure is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, transportation delays, quarantine restrictions, pandemic (including any continued impact of COVID-19) or any law, order, regulation, direction or request of any governmental authority having or claiming to have jurisdiction over Vendor, insurrection, riots, national emergencies, terrorism, acts or omissions of Client, or any other causes beyond Vendor’s reasonable control..
13. Independent Contractor.
Vendor is an independent contractor of Client, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between Vendor and Client for any purpose. Neither party shall have authority (and shall not hold itself out as having authority) to bind the other party and neither party shall make any agreements or representations on the other party’s behalf without the other party’s prior written consent.
14. Compliance with Law.
Both parties shall comply with all federal, state and local statues, ordinances, rules, and regulations applicable to its activities and obligations under this Agreement, including but in no way limited to laws and regulations pertaining to investigative activities, as well as to the confidentiality of financial, medical, health, and other information.
15. Assignment.
This Agreement shall be binding upon the parties, their successors, and permitted assigns. Client shall not assign this Agreement or any obligations or duties pursuant to this Agreement without the prior express written consent of Vendor.
16. Modification and Amendment.
This Agreement shall not be modified except as mutually agreed in a writing that is both signed and dated by the parties.
17. Severability.
If any provision of this Agreement shall be held invalid, illegal, or unenforceable, then the validity, legality, and enforceability of the remaining provisions shall in no way be affected or impaired thereby. The parties’ obligations under this Agreement, which by nature would continue beyond termination or expiration of this Agreement, including but not limited to Sections 3, 6, 7, 9, 10, 17 and 18, shall survive such termination or expiration.
18. Governing Law; Venue.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware (regardless of the laws that might be applicable under principles of conflicts of law), as to all matters contained in this Agreement. The parties hereby consent to the exclusive jurisdiction of the state and federal courts of Delaware and waive any contention that such court is an improper venue for enforcement of this Agreement.
19. Waiver.
A waiver of any breach or default under this Agreement is not a waiver or any other or subsequent breach or default. A failure or delay in enforcing compliance with any term or condition of this Agreement does not constitute a waiver or such term or condition unless it is expressly waived in writing.