THIS ELECTRONIC DELIVERY AGREEMENT (this “Agreement”), by and between Journal Technologies, Inc., a Utah corporation (hereinafter “JTI”), and you the filer (hereinafter the “FILER”), is made as of the date executed by both JTI and the FILER (the “Effective Date”).

WHEREAS, JTI has developed an electronic delivery (e-delivery) system (the “E-Delivery System”) designed to enable the electronic delivery of documents with certain courts (each, an “Electronic Delivery”);

WHEREAS, JTI has developed an application designed to enable the FILER to connect and interoperate with the E-Filing System (the “JTI E-Delivery Application”); and WHEREAS, the FILER desires, on behalf of its customers, to connect to the E-Delivery System, whether through the JTI E-Delivery Application or another e-delivery application, in order to submit filings and payments through the E-Delivery System (the “E-Delivery Services”).

NOW, THEREFORE, in consideration for the representations and agreements contained herein, the parties hereby covenant and agree as follows:

DEFINITIONS

1.1. Case Management Software means the case management software developed and licensed by JTI or another software provider to a Court.

1.2. Court means each court that is using the E-Delivery System to facilitate the Electronic Delivery of Documents.

1.3. Effective Date means the date of this Agreement.

1.4. Direct FILER means an FILER that submits filings to JTI using XML generated from a Third Party Application.

1.5. Portal FILER means an FILER that submits filings to JTI using the JTI E-Delivery Application.

1.6. Fees means the fees to be paid by a Filer for each Electronic Delivery made through the FILER.

1.7. Filer means a party making an Electronic Delivery with a Court as a customer of the FILER.

1.8. Malicious Code means any (i) program routine, device or other feature or hidden file, including any time bomb, virus, spyware, software lock, trojan horse, drop-dead device, worm, malicious logic or trap door that may delete, disable, deactivate, interfere with or otherwise harm (x) the Case Management Software, the E-Delivery System or any other software used by JTI or any Court or (y) the IT Infrastructure of JTI or any Court; and (ii) hardware-limiting, software-limiting or services-limiting function (including any key, node lock, time-out or other similar functions), whether implemented by electronic or other means.

1.9. Third Party E-Delivery Application means an application or other technology, not developed by JTI, whether proprietary to the FILER or licensed from a third party, used by the FILER to connect to and interoperate with the E-Delivery System.

2. RIGHTS, OBLIGATIONS AND RESTRICTIONS

2.1. Rights. JTI grants to the FILER and the FILER hereby accepts from JTI a non-exclusive, non-transferable, limited, terminable right to (i) use the JTI E-Delivery Application for the limited purpose of connecting to and interoperating with the E-Delivery System and (ii) access and transmit data through the E-Filing System for the limited purpose of performing the E-Delivery Services; provided, however, that the FILER’s rights with respect to the JTI E-Delivery Application and E-Delivery System are at all times and in all respects subject to the terms and conditions of this Agreement. The FILER may use the JTI E-Delivery Application and access and transmit data through the E-Delivery System only during the Term and only so long as the FILER is not in default under this Agreement. The JTI E-Delivery Application and E-Delivery System are the proprietary information and trade secrets of JTI and this Agreement grants the FILER no title or rights of ownership in the JTI E-Delivery Application or the E-Delivery System, and no title or rights of ownership in or license to use any Case Management Software. The JTI E-Delivery Application and E-Delivery System are protected by the United States copyright laws and international copyright treaties, as well as other intellectual property laws.

2.2. Non-Exclusivity. Any rights or privileges granted by JTI to the FILER herein are non-exclusive. FILER acknowledges and agrees that (i) JTI may enter into similar or different agreements with other electronic delivery service providers or entities and (ii) that JTI or any subsidiary or affiliated entity may act as an electronic delivery service provider itself.

2.3. Technical Obligations. Each party shall comply with the applicable technical requirements set forth on Exhibit A (“Technical Obligations”) attached hereto.

2.4. Certain Specific Limitations. The FILER shall not, and the FILER shall not permit any person (including, without limitation, employees, contractors, subcontractors, consultants, agents and Filers) to (a) copy or otherwise reproduce, reverse engineer or decompile all or any part of the JTI E-Delivery Application or E-Delivery System, (b) make alternations to or modify the JTI E-Delivery Application or E-Delivery System, (c) grant sublicenses, leases or other rights in or to the JTI E-Delivery Application or E-Delivery System without the prior written consent of JTI, (d) propagate any virus, worms, Trojan horses, or other programming routine intended to damage the JTI E-Delivery Application or E-Delivery System or any other system or data or (e) or permit any party access to the JTI E-Delivery Application or E-Delivery System for purposes of programming against it.

2.5. Court Data. The FILER acknowledges that each Court shall retain all ownership rights in all data of such Court that passes through the E-Delivery System and the JTI E-Delivery Application or Third Party E-Delivery Application, as applicable.

2.6. Additional Court Terms. The FILER acknowledges and agrees that each Court may have additional terms and conditions that such Court requires the EFILER to agree to prior to the FILER using the E-Delivery System or enabling an Filer to use the E-Delivery System to make an Electronic Delivery of Documents.

3. FEES

3.1. Filing Fees and Payment. The portion of the Filing Fees to be allocated to JTI shall be calculated in accordance with Exhibit B (“Fee Schedule”) attached hereto. Any such fees paid directly to the FILER shall be paid to JTI by the FILER in accordance with the terms and conditions set forth on Exhibit B.

3.2. Court Fees and Payment. The portion of the Filing Fees to be allocated to a Court shall be calculated by such Court (the “Court Fees”). Any such Court Fees paid directly to the FILER shall be transferred to JTI by the FILER in accordance with the terms and conditions set forth on Exhibit B, and JTI shall pay such Court Fees to the applicable Court. Any portion of the Court Fees paid directly into a merchant account maintained by JTI shall be remitted by JTI to such Court. The FILER hereby approves the calculation of Court Fees by such Court, the collection of Court Fees by JTI and the payment of such Court Fees to the Court, and no further preapproval of such collection or payment of such Court Fees to the Court is required.

3.3. Taxes. The Filing Fees do not include any sales taxes or similar fees, and the FILER is responsible for paying all such taxes or similar fees associated with the portion of the Filing Fees it receives hereunder.

4. CONFIDENTIALITY

4.1. Definition of Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally, in writing or through any other medium, that is designated as confidential or proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. Confidential Information shall not include any information that: (i) is in the public domain prior to the disclosure or that becomes part of the public domain other than by way of a breach of this Agreement; (ii) that was in the lawful possession of the Receiving Party prior to the disclosure without a confidentiality obligation to any person; (iii) that was disclosed to the Receiving Party, by a third party who was in lawful possession of the information without a confidentiality obligation to any person; (iv) that was independently developed by the Receiving Party outside the scope of this Agreement; or (v) that the Receiving Party is required to disclose by law or legal process.

4.2. Protection of Confidential Information. The Receiving Party shall take all necessary steps to protect and ensure the confidentiality of the Confidential Information, and such Confidential Information shall not in any way be disclosed by the Receiving Party to any third party, in whole or in part, without the prior written consent of the Disclosing Party, which may be granted or withheld in its sole discretion. If the Receiving Party becomes aware of the unauthorized possession of such Confidential Information, it shall promptly notify the Disclosing Party.

4.3. Confidentiality Breach. In the event a party breaches any of its obligations under this Section 4, the non-breaching party will be entitled to obtain injunctive relief against the breaching party.

5. WARRANTY

5.1. Warranty of Law. The FILER represents, warrants and covenants that: (i) there is no claim, litigation or proceeding pending or threatened against the EFILER or, to the best of its knowledge, any third party from which such EFILER licenses any Third Party E-Delivery Application, in each case with respect to any Third Party E-Delivery Application or any component thereof alleging infringement of any patent or copyright or any trade secret or any proprietary right of any person; (ii) any Third Party E-Delivery Application used by such FILER complies in all material respects with applicable laws, rules and regulations; (iii) the FILER has full authority to enter into this Agreement and to consummate the transactions contemplated hereby; (iv) this Agreement is not prohibited by any other agreement to which the FILER is a party or by which it may be bound; and (v) the FILER shall follow all applicable statutes, rules, regulations and court orders, including without limitation the California Rules of Court (“CRC”), in particular CRC 2.250 – 2.261 governing filing and service by electronic means, the local rules of any Court and the standing orders of judges of any Court, in the provision of E-Delivery Services ((i) through (v) collectively, the “Legal Warranty”). In the event of a breach of the Legal Warranty, the E-Delivery shall indemnify and hold harmless JTI from and against any and all losses, liabilities, damages, causes of action, claims, demands, and expenses (including reasonable legal fees and expenses) incurred by JTI, arising out of or resulting from said breach.

5.2. Warranty of Third Party E-Filing Application. The FILER further warrants that: (i) it has good title to any Third Party E-Delivery Application used by such FILER or has the right to use and to grant Filers the right to use such Third Party E-Delivery Application, as applicable; and (ii) that such Third Party E-Delivery Application contains no Malicious Code ((i) and (ii) together, the “Third Party E-Delivery Application Warranty”). In the event of a breach of the Third Party E-Delivery Application Warranty, the FILER shall indemnify and hold harmless JTI from and against any and all losses, liabilities, damages, causes of action, claims, demand, and expenses (including reasonable legal fees and expenses) incurred by JTI, arising out of or resulting from said breach.

5.3. Disclaimer. JTI DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

6. LIMITATIONS ON LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF ANTICIPATED PROFITS IN CONNECTION WITH OR ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT. FURTHERMORE, JTI’S TOTAL LIABILITY, WHETHER IN CONTRACT OR TORT, ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE ACTUAL AMOUNT OF FEES RECEIVED HEREUNDER BY JTI.

7. TERM AND TERMINATION

7.1. Term. This Agreement commences on the Effective Date and shall continue until the first anniversary of the Effective Date, and shall thereafter automatically renew for successive monthly periods (the “Term”), unless either party elects to not renew the Term upon written notice to the other party given not less than thirty (30) days prior to the end of the then-current Term.

7.2. Termination by JTI for Cause. JTI shall have the right to terminate this Agreement (but reserving cumulatively all other rights and remedies under this Agreement, in law and/or in equity), for any material breach by the EFILER which breach continues for a period of thirty (30) days after written notice thereof by JTI to the FILER. JTI shall have the right to terminate this Agreement effective immediately and without prior notice if the FILER goes into liquidation or bankruptcy.

7.3. Termination by JTI at Request of Court. JTI shall have the right to terminate this Agreement with respect to any Court if such Court requests such termination, effective thirty (30) days after written notice of such termination has been sent to the FILER.

7.4. Termination by the FILER for Cause. The FILER shall have the right to terminate this Agreement (but reserving cumulatively all other rights and remedies under this Agreement, in law and/or in equity), for any material breach by JTI which breach continues for a period of thirty (30) days after written notice thereof by the FILER to JTI.

7.5. Actions Upon and Following Termination. Termination of this Agreement shall not affect any rights and/or obligations of the parties which arose prior to any such termination and such rights and/or obligations shall survive any such termination. All unpaid E-Filing Fees accrued to JTI as of the effective time of such termination shall be paid to JTI within thirty (30) days of such termination. The FILER must cease use of the JTI E-Delivery Application and E-Filing System immediately upon termination of this Agreement, and must remove and return all Confidential Information and all other products and information received by the FILER from JTI within thirty (30) days after termination of this Agreement. If not removed and returned within such thirty (30) day period, the FILER hereby grants JTI the right to remove such products and information. In addition, the confidentiality obligations of the parties in Section 4 (“Confidentiality”) shall survive the termination of this Agreement.

8. GENERAL

8.1. Waiver, Amendment or Modification. The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing and signed by both parties. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof.

8.2. Publicity. JTI and the FILER may publicly acknowledge their participation in this Agreement. Any press release or other public statement naming the other party must be preapproved by that party.

8.3. Notice. All notices under this Agreement shall be in writing. Proper recipient information for delivering such notices will be provided by contacting Journal Technologies at efile@journaltech.com or by calling (833) 402-9333. Notices shall be deemed to have been duly given if delivered to the recipient information provided by Journal Technologies.

8.4. No Third Party Beneficiaries. This Agreement is not intended to create any right in or for the public, or any member of the public, any subcontractor, supplier or any other third party, or to authorize anyone not a party to this Agreement to maintain a suit to enforce or take advantage of its terms.

8.5. Independent Contractors. Each party is acting as an independent contractor in its performance under this Agreement, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby.

8.6. Successors and Assigns. Neither party may assign this Agreement in whole or part without the prior written consent of the other party. Any attempt to assign this Agreement without the prior written consent of the other party is void and without legal effect, and such an attempt constitutes grounds for termination by the other party. Subject to the foregoing, all of the terms, conditions, covenants, and agreements contained herein shall inure to the benefit of, and be binding upon, any successor and any permitted assignees of the respective parties hereto. It is further understood and agreed that consent by either party to such assignment in one instance shall not constitute consent by the party to any other assignment. A transfer of corporate control, merger, sale of substantially all of a party’s assets and the like, even though including this Agreement as an assigned asset or contract, shall not be considered an assignment for these purposes.

8.7. Dispute Resolution. Any dispute arising under or related to this Agreement shall be resolved exclusively as follows, with the costs of any mediation and arbitration to be shared equally by both parties:

(a) Initial Resolution by Meeting. The parties shall first attempt to resolve amicably the dispute by meeting with each other, by telephone or in person at a mutually convenient time and location, within thirty (30) days after written notice of a dispute is delivered from one party to the other. Subsequent meetings may be held upon mutual agreement of the parties.

(b) Mediation. If the dispute is not resolved within sixty (60) days of the first meeting, the parties shall submit the dispute to mediation by an organization or company specializing in providing neutral, third-party mediators. JTI shall be entitled to select either the (i) the location of the mediation or (ii) the organization or company, and the FILER shall select the other. The mediation shall be conducted within sixty (60) days of the date the dispute is submitted to mediation, unless the parties mutually agree on a later date.

(c) Arbitration. Any dispute that is not otherwise resolved by meeting or mediation shall be exclusively resolved by arbitration between the parties in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS, with the arbitration to be conducted in Los Angeles, California, or another location mutually agreed by the parties. The results of such arbitration shall be binding on the parties, and judgment may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party may seek interim injunctive relief from any court of competent jurisdiction.

8.8. Control of Defense. All indemnification obligations under this Agreement are conditioned upon (i) written notice by the indemnified party to the indemnifying party within thirty (30) days of the indemnified party’s receipt of any claim for which indemnification is sought, (ii) tender of control over the defense and settlement to the indemnifying party and (iii) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request; provided, however, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such claim against the indemnified party.

8.9. Governing Law. The validity, construction and performance of this Agreement and the legal relations among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to its conflict of law principles.

8.10. Severability. In the event any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.

8.11. Entire Agreement. This Agreement, which includes all exhibits referenced herein, represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement.

 

EXHIBIT A

TECHNICAL OBLIGATIONS

Business Rules and Data Validations. Certain business rule and data validations exist and vary from Court-to-Court. JTI shall maintain a working knowledge of such business rules and data validations and shall make best efforts to reconcile such rules and validations across courts. Due to various requirements among Courts and among case types within an individual Court, reconciliation may not always be possible. The FILER agrees to abide by business rules and data validations as specified by JTI applicable to the E-Delivery System as a whole and particular to specified Courts.

Current Version. JTI will provide documentation and information regarding the current versions of all specifications and product releases as necessary. Rules and validations may be made available to the FILER through consulting, documentation, technical validations via web services, and/or other product releases. It is the responsibility of the FILER to verify that it uses the current specifications and product releases for any transmission or other communication to a Court and JTI.

One Case. An Electronic Filing shall not contain documents for more than one case.

Notification of Problems. The FILER and JTI shall promptly notify the other of any problems related to the notifying party's ability to transmit or receive electronic transmissions, including Electronic Filings.

Errors. In the event a Court or JTI is unable to receive or process an Electronic Filing due to technical problems with the E-Delivery System and as a consequence the Court and/or JTI does not accept an Electronic Filing on the date that the FILER attempted to file such Electronic Delivery, the FILER may present logs or other evidence of the attempted transmission of the Filing and, if the attempted transmission occurred during the Court's regular filing hours, JTI may deem the Electronic Delivery received on the day and time of the attempted transmission subject to California Court Rules and the ultimate decision of such Court.

Confirmations. Upon submission of an Filing, JTI shall immediately return a synchronous confirmation with a confirmation number included that the E-Filing System has received an Electronic Filing transmitted by the FILER. At least one asynchronous confirmation that the Electronic Filing has been accepted, partially accepted, or rejected will be sent once the Court and JTI has processed the Filing containing the document(s). Asynchronous confirmations with the applicable documents included will be sent to the FILER. Court or JTI processing of asynchronous confirmations can be delayed due to staffing, workload, or other factors. JTI will use its best efforts to send asynchronous confirmations of Electronic Filings within two (2) business days. The FILER will use its best efforts to send (i) a synchronous confirmation to the Filer within five minutes of the FILER’s receipt of a synchronous confirmation from the E-Delivery System and (ii) the asynchronous confirmation(s) within one hour of the FILER’s receipt of an asynchronous confirmation from JTI. The asynchronous confirmation for a filing accepted, partially accepted, or rejected by the Court or JTI may include data consistent with the data values entered into the Court's and JTI’s information systems, which may be different from those data sent by the FILER. The confirmation of an Electronic Delivery accepted by the Court and JTI will include documents or links to documents stored in the Court's and JTI’s document repository.

EXHIBIT B

FEE SCHEDULE - Pricing & Payment Terms

1. PRICING/FEES

The fees stated below are the maximum fees at the start of the term of this Agreement. These fees are subject to change throughout the course of the Agreement. Any change(s)/ adjustment(s) in the amount of the Fees require 60 days advance written notice to the FILER by JTI, along with a written explanation supporting the desired fee change(s)/adjustment(s). Any change(s)/adjustment(s) shall be consistent with other JTI agreements with other electronic filing service providers in force for the same Court. The FILER shall have the right to terminate with 60 days advance written notice to JTI should the FILER elect not to agree to the change(s)/adjustment(s).

The initial available fee options are as follows. (These fees are paid by the FILER to JTI):

1. Pricing (California Jurisdictions)

EFILER Pricing - Pricing for eFiling transactions are as follows:

These fees will be charged on all completed FILER transactions, regardless as to whether there is any Fee Waiver, which is a separate issue. If the Court mandates electronic filing pursuant to Assembly Bill 2073, the FILER and JTI will not charge for transactions where a fee waiver has been granted to the filing party. The exceptions will be certain transactions that the Court does not have an associated filing fee associated with the filing such as for domestic violence restraining orders which, in turn, will not have a transaction fee associated with them by any of the parties.

JTI will transmit to the FILER asynchronous transactions containing the actual filing fees assessed by the Court and associated JTI fees as each transaction is accepted (Day 0). JTI will send a summary report of all transactions completed during the previous day will be transmitted to the FILER on a daily basis (Day 1). If FILER did not use a credit card for a transaction, JTI will submit two ACH pull transactions no later than Day 2 to pull funds from bank account(s) designated by the FILER. All funds must be available in JTI’s bank accounts on Day 3. JTI is responsible for transferring filing fees received from the FILER to the Court, and shall indemnify the FILER from any claims arising out of JTI’s failure to do so. One ACH transaction will be for the filing fees assessed by the Court and the second ACH transaction will be for JTI’s fees to enable JTI to distinguish between Court fees and JTI fees.

2. PCI DSS COMPLIANCE

JTI shall maintain full compliance with the Payment Card Industry Data Security Standards (PCI DSS) as required for the processing they are undertaking. (Website address provided for reference: www.pcisecuritystandards.org.)

3. MERCHANT ACCOUNTS

Court and/or JTI will provide merchant account(s) for the deposit of court fees and transactional filing funds and final settlement to a designated Court bank account. The Portal FILER shall use JTI’s merchant account for collecting fees from Electronic Filers, subject to the potential 2.75% fee mentioned above. All merchant fees incurred within the merchant account will be paid by the owner of the account. If JTI maintains the merchant account, JTI will remit the FILER’s portion of the convenience fee to the FILER and the Court’s fees to the Court. The convenience fees will be distributed by the Party collecting the fees within 14 days after the end of the month in which the convenience fee was incurred.

Technology Maintenance Fee

A Technology Maintenance fee may be assessed by the Court and collected by JTI for each Electronic Delivery processed in whole or in part by the Court and JTI from the FILER. This fee will not be charged for any Electronic Delivery rejected in full. The fee is in addition to any other statutory or other filing fee that is charged for each document filed with the Court. If there are multiple documents contained in a single Electronic Delivery only one Technology Maintenance fee will be assessed

The FILER assumes all risk for collecting fees it has paid on behalf of its Filer customers. Should the FILER be unable to collect the proper fees from the Filer, the FILER is entitled to seek remuneration from the Filer allowable under current statutes.

Print Page