Professional Services Agreement

Last Updated: November 11, 2022

This Professional Services Agreement (the “Agreement”) sets forth the terms under which Vendor (identified in an executed Statement of Work) will provide services (“Services”) and Deliverable (as defined below) to Lob.com, Inc. and its Affiliates.  This Agreement is effective as of the effective date specified in the applicable Statement of Work (the “Effective Date”) and governs any Services and Deliverable provided by Vendor. This Agreement includes the terms and conditions below, all attached Exhibits as, any referenced policies and attachments, well as any written statements of work mutually agreed by the parties for specific projects (each, a “Statement of Work” or “SOW”).

The parties hereby agree as follows:‍

1   Definitions.‍

1.1   “Affiliates” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.‍

1.2   “Content” means any reports, feedback, recommendations, data, models, plans, drawings, audio or visual materials, designs, images, photos, videos, digital media, goods (including any hardware, computers, devices and other equipment), systems, software (including any applications, libraries, widgets, online software and other code), websites, configurations, trade secrets, inventions, works of authorship, discoveries, know how, processes, methodologies, documentation or other materials.

1.3   “Deliverable” means any Content (and any related Intellectual Property Rights), in any form or medium and regardless of state of completion, that: (a) is identified as an invention, work product or deliverable in any SOW; (b) is delivered, created, developed, conceived of or reduced to practice in connection with or as a result of the Services; or (c) uses, relies, depends on, incorporates or derives from any of Lob’s Confidential Information (including any Lob Properties or Lob Data).

1.4   “Intellectual Property Rights” means any and all intellectual property rights of any kind, including any patents, copyrights, trade secrets, service marks, trademarks, know-how, trade names, trade dress and packaging, moral rights, rights of privacy or publicity, and similar rights of any type, and any applications, continuations, or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory, or judicial authority.

1.5   “Lob Data” means any data, code, content, information and other materials that is accessed, received, collected, generated, stored or processed from or for Lob or its Affiliates, including data received from or pertaining to Lob’s end users, customers, advertisers, business partners, distributors or resellers.

1.6   “Lob Properties” means: (i) Lob’s and its Affiliates’ past, present or future products, software, websites, online properties and online services and (ii) any other system, network or component (including any hardware, computer, device, and other equipment) of Lob’s and its Affiliates’ product or technology infrastructure. For clarity, the term includes any items of the foregoing type provided to Lob by third parties, including Lob’s cloud service providers.

1.7   “OSS” means any and all open source software or other open source content of any type, including without limitation any code licensed under any version of the Artistic, BSD, Apache, Mozilla, GPL, LGPL, Affero GPL, the Academic Free License, the Common Development and Distribution License, the Common Public Attribution License, the Open Software License, or any other open source license. The term further includes any code which, if distributed with other software, may impose an obligation or restriction with respect to such software or related Intellectual Property Rights (such as an obligation to release the source code of such software).

1.8   “Pre-Existing Material” means any Content generally used by Vendor in its business that: (i) was already developed by Vendor before Vendor provided any Services or Deliverable to Lob and (ii) does not use, rely, depend on, incorporate or derive from any of Lob’s Confidential Information (including any Lob Properties or Lob Data).

1.9   “Third Party Materials” means any and all Content (and related Intellectual Property Rights) that is not owned exclusively by Vendor. The term includes any OSS.

2   Scope.  

2.1   Scope of Services. Vendor agrees to provide Services and Deliverable in accordance with the applicable Statement of Work, each of which will be subject to this Agreement. Vendor must not commence any Services under any SOW until Lob accepts and signs the SOW, and it must provide Services and Deliverables in a prompt manner no later than any schedule specified in the applicable SOW. The form of SOW (or, if completed and signed, the parties’ initial SOW) is set forth in the attached Exhibit A. Subsequent SOWs will be in a form substantially similar to that exhibit.

2.2   Delivery. All Deliverables will be delivered to Lob electronically as instructed by Lob or (for tangible Deliverables) F.O.B. to the Lob destination specified in the applicable SOW. Title and risk of loss to tangible Deliverables will pass upon Lob’s inspection and acceptance of the Deliverables at the Lob destination. Vendor will pay all duties, export fees, shipping costs and insurance, if any, unless otherwise specified in the applicable SOW. Vendor agrees that time is of the essence under this Agreement and each SOW.

2.3   Acceptance. Unless otherwise stated in an SOW, Lob shall have thirty (30) days to evaluate any Deliverable (“Acceptance Period”) to ensure that such Deliverable meets the warranties, specifications and requirements set forth in the applicable SOW and this Agreement. If the Deliverable does not meet such requirements, Lob shall notify Vendor in writing during the Acceptance Period and Vendor, at its own cost and expense, shall promptly provide corrected Deliverable to Lob, which shall again be subject to evaluation by Lob under this Section 2.3. The Deliverable shall be deemed accepted: (a) if Lob fails to reject such Deliverable during the Acceptance Period or (b) Lob provides Vendor with written notice of acceptance. If Vendor fails to provide conforming Deliverable following two Acceptance Periods, Lob at its option may terminate the applicable Statement of Work and Vendor shall refund any fees Lob has paid for the Services and Deliverable. If this Section applies to an SOW, Lob may withhold payment until final acceptance of Deliverable, notwithstanding anything to the contrary herein. This Section 2.3 does not limit other warranties or remedies in this Agreement.

2.4   Changes. Lob will have the right to modify any SOW upon written request. In that event, the parties will document such modifications (including any impact to delivery dates and pricing) in a written change order. Fees for any additional Services or Deliverables will be charged at rates not to exceed those in the applicable SOW, and credits will be provided for pre-paid fees not yet consumed. No change order shall be binding on Lob until signed by its authorized representative.

2.5   Vendor Personnel. Vendor may not subcontract the provision of Services or Deliverable without Lob’s prior written approval in each instance. In any event, Vendor shall: (a) remain directly responsible and liable to Lob for the acts and omissions of each of its employees, agents, personnel, service providers and subcontractors (“Vendor Personnel”), including without limitation for their compliance with Section 5 (Confidentiality) below and (b) ensure that each of its Vendor Personnel is bound in writing to terms equally as protective of Lob as the terms and conditions of this Agreement (including without limitation as may be necessary to secure for Lob its rights in Deliverables). At Lob’s request, Vendor will replace any Vendor Personnel that does not perform to Lob’s reasonable satisfaction.  

2.6   Lob Affiliates. All rights, benefits, and protections granted to Lob pursuant to this Agreement also extend to its Affiliates, who may also enter into SOWs under this Agreement. If an Affiliate enters into an SOW, that Affiliate shall be considered “Lob” for all purposes of that SOW and this Agreement, and the SOW shall be considered a two-party agreement between Vendor and such Affiliate subject to the terms and conditions of this Agreement.

2.7   Background Checks. Vendor will perform background checks on its employees, contracts, and any other individuals providing services to Vendor and/or Lob on Vendor’s behalf. Such background checks shall be performed in compliance with all applicable laws and regulations, and shall include the following items:

     2.7.1   Criminal Check: The background check is limited to historical information from the past 7 years. Federal, National, and County Check. Felony and Misdemeanor Criminal Conviction Records and Unresolved Arrests Only (i.e. no infractions or arrests not resulting in conviction). Sex Offender List Check. Domestic Terrorist Watch List Check

     2.7.2   Education Check: Highest level of education attained, including educational institution, start and end dates, and degree title. Professional license verification will be verified only when specifically required for the position

     2.7.3   Employment Check: Review up to the past 3 employers, which shall include start date, end date and job title.

     2.7.4   Other Checks: Social Security Number Trace, not verification. Address History

     2.7.5   Vendor agrees to provide attestation that it has completed such backgrounds checks.

     2.7.6   Upon request by Lob (email to suffice), Vendor will provide the results of such background checks to Lob.

2.8 Security Training. Vendor shall provide Information Security Awareness training for its employees, contracts, and any other individuals providing services to Vendor and/or Lob on Vendor’s behalf. Such training shall be performed upon hire and

2.9 annually thereafter in compliance with all applicable laws and regulations, and shall included the following items: Password Management, Physical Security, Social Engineering, Phishing, Acceptable Use Policies and Ethics, and Incident Response.

3   Payment.

3.1   Fees and Expenses.  The fees for any Services (including any resulting Deliverable) shall be specified by Vendor in the applicable SOW, and no other fees shall be due. Lob will reimburse Vendor for expenses, at cost, only if: (i) the SOW expressly specifies that an expense item is reimbursable; (ii) Lob pre-approves any expense in writing (in each instance); and (iii) the expense is reasonable and complies with Lob’s travel and other expenses policies. Any reimbursable expense must be included as a separate line item in Vendor’s invoices.

3.2   Payment Terms. Subject to Vendor’s compliance with this Agreement, Lob shall pay Vendor undisputed fees for the Services it receives (and expenses, if applicable) within thirty (30) days of Lob’s receipt of a correct invoice, unless a different payment period is specified in the applicable SOW. Unless otherwise specified in an SOW: (i) all invoices and payments shall be in U.S. dollars; (ii) unless otherwise specified in an SOW, Vendor shall invoice Lob upon completion and acceptance (if applicable) of the Services and Deliverable; and (iii) Vendor will ensure that each invoice is itemized and sent to the proper Lob billing address. Lob may withhold payment of any amounts disputed in good faith while the parties attempt to resolve the dispute, and this will not constitute a breach or permit suspension on Vendor’s part. Lob reserves the rights of setoff and withholding from any amounts otherwise due to Vendor.

3.3   No Other Compensation. Vendor agrees that this Section 3 describes the only compensation that Vendor is entitled to receive for the Services and Deliverables and that it will not be entitled to any other payments, reimbursements, or consideration of any kind, including any royalties or license fees for Deliverables. Vendor is solely responsible for payment of any and all taxes and shall not invoice Lob for such amounts. Vendor will provide Lob will all tax forms requested by Lob as well as other information and documentation reasonably requested to justify any fees and expenses.

4   Ownership and Deliverables.  

4.1   Ownership and Assignment of Deliverables. Vendor agrees that all Deliverables will be the sole and exclusive property of Lob. All Deliverables (including any and all Intellectual Property Rights therein) will be deemed to be a “work made for hire” (as defined in Section 101 of Title 17 of the United States Code) to the fullest extent permitted by law. In any event, and without limiting the foregoing, Vendor will and hereby does irrevocably and exclusively assign, transfer and convey to Lob all right, title and interest in and to any Deliverable (including any and all related Intellectual Property Rights), without regard to whether any particular Deliverable has been accepted by or provided to Lob. If Vendor has any rights to Deliverables whose ownership cannot be transferred to Lob under applicable law (including any moral rights), Vendor hereby unconditionally and irrevocably grants Lob an exclusive (even as to Vendor) license under these rights to Use all Deliverables and assigns the enforcement of these rights to Lob. “Use” means to reproduce, display, perform, publish, license, distribute, disclose, make, have made, sell, offer to sell, practice, import, export, execute, adapt, modify, improve, adapt, create compilations, make derivative works of, and otherwise use and exploit, and to allow others to do so, regardless of form or medium, whether now existing or later developed.

4.2   Pre-Existing and Third-Party Materials. Vendor shall retain all right, title and interest (including all Intellectual Property Rights) in and to its Pre-Existing Material, subject to the licenses and releases granted in this Section 4. If Vendor provides Lob with any Pre-Existing Material or Third-Party Material or with any Deliverable that incorporates, includes, is integrated with, uses or is dependent upon any Pre-Existing Material or Third Party Material, then Vendor hereby grants Lob, at Vendor’s sole cost and expense, a non-exclusive license to Use the Pre-Existing Material and Third Party Materials in connection with Lob’s Use of any Deliverable, and no such Pre-Existing Material or Third Party Materials shall be considered Vendor’s Confidential Information (notwithstanding anything to the contrary herein). In each such instance, Vendor represents and warrants that it will: (i) specifically identify any Pre-Existing Material and/or Third Party Material in the applicable SOW and its proposed use, (ii) obtain Lob’s prior written approval for any such use, and (iii) procure, at its sole cost and expense and before any use of any such material is made, all rights, licenses and releases necessary in order to grant the rights, licenses and releases described in this Agreement. Vendor must confirm in writing its compliance with these requirements at Lob’s request.

4.3   Additional Terms. Vendor irrevocably releases Lob, its Affiliates, and any of their respective employees, officers, agents, directors, licensees, successors and assigns from, and waives, any claims, damages and liability of any type arising from or relating to: (i) any Use of Deliverables and (ii) any Use of Pre-Existing Materials and Third-Party Materials authorized by this Section 4.  Vendor understands and agrees that all the rights, licenses, releases and waivers transferred or granted under this Section 4 are and shall be royalty-free, fully paid up, irrevocable, worldwide, transferable, sublicensable (through multiple tiers) and perpetual, shall apply to any applicable Intellectual Property Right, and shall also extend to any of Lob’s Affiliates. All licenses granted by Vendor under this Agreement are and shall be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses to rights in “intellectual property.”  The parties agree that, in the event of commencement of bankruptcy proceedings by or against Vendor, Lob will be entitled, at its option, to retain all of its rights under this Agreement pursuant to Code Section 365(n).

4.4   Attorney in Fact. Vendor at its expense will assist and cooperate with Lob in all respects to enable Lob to apply for, acquire, transfer, maintain, perfect and enforce its rights (including Intellectual Property Rights) in and to the Deliverables, including by executing documents and, subject to the reasonable availability of Vendor, giving testimony and taking such further acts reasonably requested by Lob. Vendor irrevocably appoints Lob as its attorney-in-fact to verify and execute documents and to do all other lawfully permitted acts to effectuate Vendor’s assignment and licenses in this Agreement. At no time will Vendor dispute or contest Lob’s exclusive ownership rights in any Deliverables.

4.5   Ownership of Lob Materials. Vendor acknowledges and agrees that Lob (or its other vendors and licensors, as applicable) retains all right, title and interest (including all Intellectual Property Rights) in and to Lob’s Confidential Information (including Lob Properties and Lob Data) and any derivatives thereof. At no time will Vendor dispute or contest Lob’s exclusive ownership rights in any of the foregoing. Vendor understands and agrees that Lob may currently or in the future be developing products, services and other materials internally, or receiving such materials from third-parties, that may be similar to or competitive with Vendor’s Services or Deliverables. Nothing in this Agreement prevents Lob from doing so.‍

5   Confidentiality.

5.1   Definition.  “Confidential Information” means any information obtained by a party (or its Affiliates) (each, a “Receiving Party”) from the other party or its Affiliates (each, a “Disclosing Party”) that is either: (a) designated in writing as confidential within thirty (30) days of the disclosure or (b) should reasonably be considered confidential given the nature of the information and/or the circumstances surrounding the disclosure. Notwithstanding the foregoing requirements, Lob’s Confidential Information includes: (i) Lob Properties and related information, including plans, specifications, research, inventions, designs, or development procedures; (ii) information regarding Lob’s business, including financial and pricing information, marketing plans and business opportunities; (iii) information that Vendor or any Vendor Personnel may discover while at Lob’s facilities or through access to Lob Properties (including any passwords or access credentials); and (iv) Deliverable(s) and Lob Data.

5.2   Duties. Unless otherwise expressly permitted by this Agreement, each Receiving Party will: (a) hold Confidential Information in strict confidence and not divulge any Confidential Information to any person or entity; (b) use Confidential Information only to the extent necessary for purposes of providing or receiving (as applicable) the Services and Deliverable; and (c) protect the Disclosing Party’s Confidential Information using all precautions the Receiving Party employs with respect to its own confidential materials of a similar nature (but, in any event, no less than reasonable precautions).  Vendor will not disclose any proprietary information or trade secrets of any third-party to Lob.

5.3   Exclusions and Exceptions.  The obligations in this Section 5 shall not apply to any Confidential Information, other than Lob Data, that the Receiving Party can show: (a) is or becomes a matter of public knowledge through no fault of any Receiving Party; (b) is rightfully known by a Receiving Party prior to disclosure by the Disclosing Party; (c) is rightfully obtained by a Receiving Party from a third party not under an obligation to maintain confidentiality; or (d) is independently developed by Receiving Party without using the Disclosing Party’s Confidential Information. A Receiving Party may disclose Confidential Information to its employees, agents and authorized contractors who need to know the information for purposes of this Agreement, provided the individual or entity is subject to confidentiality obligations no less protective than those in this Agreement. A Receiving Party may also disclose Confidential Information: (i) with the Disclosing Party’s prior written consent and (ii) to the minimum extent required by law or court order provided it gives advanced written notice to the Disclosing Party (if permitted by law) and cooperates in any effort by the Disclosing Party to obtain confidential treatment for the information.

5.4   Injunctions. Each Party acknowledges that breaches of this Section may cause substantial harm to Disclosing Party not sufficiently compensable by damages alone. Accordingly, upon such breach, Disclosing Party will be entitled to seek equitable relief to protect its Confidential Information.

6   Warranties.

6.1   Mutual Warranty. Each party represents and warrants that it has full right and power to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation it may have to any other party.

6.2   Performance Warranties.  Vendor represents and warrants that: (a) all Services and Deliverables will be provided in a timely, efficient, professional and workmanlike manner and by well-qualified Vendor Personnel; (b) the Services and Deliverables will be of good quality and will conform to the applicable SOW (including any descriptions, specifications or warranties therein) and applicable industry standards; and (c) Deliverables will be free from defects in design, materials, workmanship, and merchantability and fit for the purposes contemplated by the SOW (collectively, the “Performance Warranties”).

6.3   Additional Warranties. Vendor further represents and warrants that: (a) Vendor has all necessary rights, licenses and releases to provide the Services and Deliverables to Lob and to transfer and/or grant the rights, licenses, waivers and releases under this Agreement; (b) the Services, Deliverables, Third-Party Materials and Pre-Existing Materials (and Lob’s permitted Use thereof) will not violate third party rights (including confidentiality and Intellectual Property Rights) and will not require permissions, consents or clearances from, or payment of any fees, residuals or other amounts to, any third party (including any Vendor Personnel); (c) Vendor will obtain any necessary business permits and will comply with (and will ensure that the Services and Deliverables comply with) any applicable laws, rules, regulations and orders, including any applicable import or export restrictions and laws regarding privacy and data protection; and (d) any Deliverable will be free of any restrictions, mortgages, liens, pledges, security interests, encumbrances or encroachment, will not include any software disabling devices, time-out devices, counter devices and devices intended to collect data from Lob and, except with respect to Lob-approved Third Party Materials incorporated in Deliverables, will be the original work of Vendor.

6.4   Remedies. At Lob’s request and Vendor’s sole cost and expense, Vendor will correct any warranty breach and redeliver conforming Services and/or Deliverable promptly (and in any event within five (5) days of Lob’s request). Vendor must remedy any non-conformity immediately if the breach affects the security, integrity or availability of Lob Properties or Lob facilities. If Vendor is unable to correct the non-conformity, Lob may terminate this Agreement or the applicable SOW and, upon such termination, Vendor will refund any fees and related expenses paid by Lob for the non-conforming Services and Deliverable.

6.5   Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT (INCLUDING IN ANY EXHIBIT OR SOW), VENDOR AND LOB EACH DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL LOB PROPERTIES, LOB DATA AND OTHER CONFIDENTIAL INFORMATION OF LOB ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.

7   Indemnity.  Vendor will indemnify and hold Lob, its Affiliates and their respective officers, directors, employees, sublicensees, contractors, users and agents (collectively, “Lob Parties”) harmless from and against any and all third-party claims and related losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) arising out of or related to: (a) any actual or alleged breach by Vendor or the Vendor Personnel of any representation, warranty or other provision of this Agreement; (b) any actual or alleged infringement of any Intellectual Property Rights by the Deliverable or any provided Third-Party Materials or Pre-Existing Materials, or by Lob’s permitted Use thereof; or (c) any personal injury, property damage or health harm caused by Vendor’s or any Vendor Personnel’s negligence or more culpable conduct (each a “Claim”). Lob will give Vendor written notice of a Claim and, at Lob’s request, Vendor will defend the Lob Parties against a Claim at Vendor’s expense. A Lob Party (at its option) may participate in the handling of any Claim through counsel of its own choosing, and the parties will reasonably cooperate on the defense of and response to a Claim. In no event will Vendor settle any Claim without Lob’s prior written consent. Vendor must fully release Lob from liability for any Claim, and it must procure for Lob the right to continue Using any affected Deliverable.

8   Limitations of Liability.  EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 8: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY LOB TO VENDOR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE ABOVE PROVISIONS OF THIS SECTIONS 8 WILL NOT APPLY TO VENDOR WITH RESPECT TO: (A) ITS EXPRESS DEFENSE AND INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT; (B) ITS BREACH OF OR OBLIGATIONS UNDER SECTIONS 5 (CONFIDENTIALITY) OR 6.3 (ADDITIONAL WARRANTIES); OR (C) ANY PERSONAL INJURY, PROPERTY DAMAGE OR HEALTH HARM CAUSED BY THE NEGLIGENT OR MORE CULPABLE CONDUCT OF VENDOR.

9   Term and Termination.

9.1   Term; Expiration.   The term of this Agreement will commence on the Effective Date and will extend for an initial period of twelve (12) months, unless earlier terminated as expressly provided in this agreement. This term will automatically renew for additional, successive terms of twelve (12) months each unless a party sends the other party written notice of non-renewal at least thirty (30) days prior to the renewal date. The initial term and any renewal terms together constitute the “Term.” The term of this Agreement will commence on the Effective Date and will extend until it terminates or expires as expressly specified herein (the “Term”). This Agreement will expire twelve (12) months following termination or expiration of the final SOW under this Agreement.

9.2   Termination.  Either party may terminate this Agreement if there are no SOWs then in effect by providing the other party with thirty (30) days advance written notice. Either party may also terminate this Agreement and/or an SOW if the other party: (a) fails to cure any material breach of this Agreement (including any SOW) within thirty (30) days of the non-breaching party’s written notice of such breach; (b) ceases to do business in the ordinary course; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Lob may terminate this Agreement and/or an SOW: (i) for convenience upon ten (10) days advance written notice to Vendor or (ii) for cause without cure period if Vendor: (x) commits repeated offenses, meaning breaches of this Agreement (even if subsequently cured) occurring three or more times during any 12-month period; (y) breaches its obligations under Sections 5 (Confidentiality); or (z) causes or creates conditions that may cause any health, security, integrity or availability issue or any physical or property damage.

9.3   Effect of Termination. Unless otherwise instructed by Lob in writing, Vendor will stop work on any Services (including any Deliverable) upon receipt of a notice of termination of this Agreement and/or any SOW(s). At Lob’s written request, Vendor will: (a) wind down the Services in a professional and cost-effective manner and/or (b) cooperate in good faith to transition the provision of Services and/or Deliverables to Lob or Lob’s other vendor(s).  Upon termination or expiration of this Agreement or an SOW, Vendor will refund to Lob any pre-paid fees for Services and Deliverables that Lob has not yet received or that did not conform to this Agreement, and Lob will have no further payment obligations. Upon any expiration or termination of this Agreement or at Lob’s request, Vendor will promptly return to Lob any of Lob’s Confidential Information (including any Deliverable, in whatever stage of completion, any Lob Data and any Lob Properties). Thereafter, Vendor will destroy any copies remaining with Vendor or any Vendor Personnel.

9.4   Survival.  The following provisions will survive any termination or expiration of this Agreement: Sections 1 (Definitions), 2.5 (Vendor Personnel), 2.6 (Lob Affiliates), 4 (Ownership and Deliverable), 5 (Confidentiality), 6 (Warranties), 7 (Indemnity), 8 (Limitations of Liability), 9 (Term and Termination) and 10 (General).

10   General.

10.1   Assignment.  Neither party may assign this Agreement without the prior written consent of the other party; except that Lob may assign this Agreement without such consent to its Affiliates or in connection with a reorganization, merger, consolidation, acquisition, or other transaction involving all or substantially all of the voting securities or assets of Lob. Any assignment in violation of this provision will be null and void. Subject to the foregoing, this Agreement will be binding on and inure to the benefit of each party’s permitted successors or assigns.

10.2   Notices. Notices must be in writing and are effective when (a) delivered personally, (b) two days after being sent by overnight mail or (c) sent by email to the addresses of the other party’s authorized representative, where no undeliverable message is returned. Any legal notices to Lob will be effective only if copied to legal@Lob.com with the subject line “LEGAL NOTICE.”

10.3   Publicity.  Vendor may not use Lob’s name, logo or trademarks (including on any customer lists), issue any public announcements, press releases or publicity regarding this Agreement, or otherwise confirm or comment on the parties’ relationship under this Agreement.

10.4   Governing Law; Remedies.  This Agreement will be governed and construed under the laws of the State of California and the United States without regard to its conflicts of law provisions.  Any suit or proceeding arising out of or relating to this Agreement must be brought in the federal and/or state courts for San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. The Uniform Computer Information Transactions Act will not apply to this Agreement regardless of when or how adopted, enacted or amended. All remedies under this Agreement, including termination and refunds, are cumulative and not exclusive of any other rights or remedies that may be available to a party.  

10.5   Independent Contractors.  The parties are independent contractors. This agreement does not create any employment, partner, agent or joint venture relationship between the parties or their personnel.  Neither Vendor nor any Vendor Personnel will be entitled to any benefits (including any workers’ compensation, insurance, stock options or retirement benefits) provided by Lob to its employees. Vendor (and not Lob) will be solely responsible for its own income tax payments and any and all obligations and payments due with respect to Vendor Personnel, including with respect to any compensation, insurance, employment-related taxes, personal injury or workman’s compensation claim, and other employment benefits. Vendor will indemnify and hold Lob Parties harmless from and against any claims by Vendor Personnel related to any such obligations. Vendor will be solely liable for its and its Vendor Personnel’s acts or omissions while at any site, including without limitation those resulting in personal injury or property damage. Except to the limited extent described in Section 4.4 (Attorney in Fact), neither party will have the power to make any commitment, enter into any contract, or incur any liability on behalf of the other or represent that it has any authority to do so.

10.6   Insurance.  Vendor, at its sole cost and expense, will maintain in effect at all times during the Term adequate insurance to cover any liabilities which may arise as a result of Vendor’s performance under this Agreement, including adequate health, automobile, workers’ compensation, unemployment compensation, disability, liability, and any other type of insurance required by law or as is common practice in Vendor’s business.  Upon request, Vendor will provide Lob with certificates of insurance or evidence of coverage.  Vendor’s insurance coverage, however, will not limit Vendor’s liability under this Agreement.

10.7   Records. Upon reasonable prior notice and not more than twice per year, Lob may inspect Vendor’s records, systems and facilities to verify Vendor’s compliance with this Agreement.  Vendor will keep and maintain complete and accurate records in connection with its provision of Services and Deliverables (including with respect to any amounts charged to Lob) for at least five (5) years after Lob’s final payment for those Services and Deliverables.

10.8   Entire Agreement. This Agreement (including its attached Exhibits and any SOWs) is the entire agreement of the parties as to its subject matter and supersedes all prior written and oral discussions, agreements and understandings relating to same. This Agreement (including its attached Exhibits and any SOWs) supersedes any terms and conditions Vendor may provide through its website or with its proposals, orders, purchase order confirmations or similar ordering documentation.

10.9  Amendments; Waivers.  The Agreement may only be modified or amended in a writing signed by both parties. Any waiver must be in writing and signed by an authorized representative of the waiving party. No waiver will be implied from conduct, knowledge or failure or delay to enforce or exercise rights under this Agreement.    

10.10   Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect.

10.11   Miscellaneous.  This Agreement (including any SOW) may be executed electronically and/or in two or more counterparts (each of which will be considered an original but all of which together will constitute one agreement). The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic means shall be sufficient to bind the parties to the terms and conditions of this Agreement. As used herein, the term “including” means “including without limitation.” Each party represents that the individual signing this Agreement has the requisite legal authority to bind the party on whose behalf he/she is signing.