These Registered Agent Services Terms and Conditions (the “Terms and Conditions”) and the Order Form described below (together, the “Agreement”) constitute the legal agreement between you (“you” or “Customer”) and the Computershare Group Entity that signs the Order Form (“Computershare”), with respect to the registered agent services purchased by you (the “Services”) pursuant to a written order form (“Order Form”) submitted to and accepted by Computershare Inc. or one of its affiliated entities (each, a “Computershare Group Entity”) either online or through other means.
The effective date of the Agreement (the “Effective Date”) will be the date upon which you enter into the Order Form. If you are entering into these Terms and Conditions on behalf of any entity, you represent and warrant that you are authorized to accept these Terms and Conditions on such entity's behalf. In the event of a conflict between these Terms and Conditions and the Order Form, the provisions of the Order Form shall control. Capitalized terms used herein without definition will have the meanings ascribed to them on the Order Form.
- SERVICES. Computershare, acting through its (or its affiliate’s) service provider United Agent Group, Inc. (“UAG”), will at its own expense prepare and file change of registered agent forms appointing UAG as the new registered agent for Customer and its affiliates in the U.S. jurisdictions where Customer and its affiliates are incorporated or qualified to do business as designated by Customer. UAG will then act as the registered agent for Customer and its affiliates in these jurisdictions. It is Customer’s sole responsibility to keep Computershare informed as to any changes in address, or of changes of persons authorized to receive Computershare notifications, reports, processes and legal matters. Such changes are deemed to be effective when entered into Computershare’s customer record system.
- INSTRUCTIONS. Customer may from time to time communicate instructions to Computershare through an attorney-in-fact or through such other third party who shall have the “usual” or “ostensible” authority to give instructions; and Computershare shall have no liability in respect of or arising out of any action or inaction by Computershare that is in accordance with such instructions.
- CHANGE OF AGENT FORMS. Since the forms involved with switching the registered agent are administrative, Customer hereby grants to UAG a Limited Power of Attorney to sign change of agent forms in such office and with such authority as is required to file the forms with the applicable states. Accordingly, Customer hereby constitutes and appoints UAG, with full power of substitution, as Customer’s true and lawful attorney-in-fact to execute, deliver and file any and all documents, forms, certificates or other instruments that UAG deems necessary or appropriate to appoint or substitute, as applicable, UAG as Customer’s registered agent in all U.S. jurisdictions in which Customer is organized or authorized to transact business.
- U.S. AND INTERNATIONAL SERVICE OF PROCESS. Upon receipt of service of process of documents less than 200 pages, UAG and its agents will promptly: (a) scan the document to create a PDF image and provide Customer with a searchable data summary that can be accessed immediately through a secure online database system once the system is made available and (b) deliver the service of process to Customer promptly by email in accordance with Customer’s delivery instructions. For documents that are bound or are 200 pages or more, UAG will send the service of process documents by courier.
- INFORMATION ACCESS; LIMITED MANAGED ADMINISTRATIVE SERVICE. If Customer is not under a subscription agreement for Computershare’s GEMS™ Global Entity Management System (“GEMS”) online service, Computershare will provide Customer with access to a GEMS database where Computershare will store information relating to the Services. For all customers, including subscription GEMS customers, Computershare will update Customer’s database with certain changes, filing-related data and documents identified in the Order Form at no additional charge. See links below (Attachments 1 and 2) for an allocation of updating responsibilities. All changes and additions to the GEMS database made by Computershare will be performed using a dedicated GEMS service account for Computershare and all changes and additions will be captured and visible via the GEMS Audit Trail feature. Computershare may also access Customer’s GEMS database to extract information as necessary to provide the Services. Customer shall cause its GEMS users to comply with the terms of the Agreement and will take reasonable measures to ensure that each user protects the confidentiality of the assigned password and does not disclose such password to any third party.
- OWNERSHIP. The GEMS service includes proprietary and confidential information of Computershare and you agree not to disclose the GEMS service to third parties. All intellectual property rights in and to the GEMS service shall remain the exclusive property of Computershare and its licensors.
- U.S. MANAGED ANNUAL REPORT SERVICE. If purchased on the Order Form, Computershare will prepare and file state annual reports for Customer, with assistance from Customer when required and Customer agrees to provide assistance and all information and documentation reasonably requested to make such filings. Where a state requires payment of franchise or other filing fees as part of an annual report, Computershare will, upon request, pay such fees on behalf of Customer up to $10,000 and invoice Customer these fees. Fees in excess of $10,000 must be paid to the state directly by Customer unless otherwise arranged with Computershare, in which case Customer will have the option to wire the full fee to UAG within three (3) days of the filing deadline. If Customer purchases the Annual Report Service, then Customer hereby grants UAG and its employees the authority to sign and file such annual reports with the applicable states (i) as “Special Secretary” or “Special Manager” on behalf of the applicable entity, or (ii) to the extent required by applicable state law, in the name of the Secretary then listed in the GEMS database for the applicable entity, unless Customer notifies Computershare in writing otherwise. Alternatively, UAG may sign annual reports as attorney-in-fact and Customer hereby grants to UAG a Limited Power of Attorney to sign annual reports in such office and with such authority as is required to file the forms with the applicable states.
- U.S. TRANSACTIONAL SERVICES. Upon request, Computershare will provide document retrieval services, UCC search and filing services, and corporate document preparation and filing services, e.g., for the formation, qualification, amendment, merger, dissolution, withdrawal and maintenance of entities nationwide. These services will be provided at then-standard rates. If Customer requests such services, then, unless Customer’s signature is required under state law, Customer hereby grants UAG and its employees the authority to sign and file such documents with the applicable states (i) as “Special Secretary” or “Special Manager” on behalf of the applicable entity, or (ii) to the extent required by applicable state law, in the name of the Secretary then listed in the GEMS database for the applicable entity, unless Customer notifies Computershare in writing otherwise. Alternatively, UAG may sign documents as attorney-in-fact and Customer hereby grants to UAG a Limited Power of Attorney to sign documents in such office and with such authority as is required to file the documents with the applicable states.
- INTERNATIONAL FILING AND TRANSACTIONAL SERVICES. Upon request and as readily available, Computershare will provide annual filing and other entity formation, dissolution, merger, amendment, etc. services, along with document preparation, searches and similar services in a number of non-U.S. jurisdictions. Computershare may engage one or more agents to assist with the provision of such Services and these Services will be provided at the specified rates in the Order Form. If Customer requests such Services, then, unless Customer’s signature is required under local law, Customer hereby grants Computershare and its agents the authority to sign and file such documents with the applicable authorities (i) as “filing agent” or “assistant secretary” on behalf of the applicable entity, or (ii) to the extent required by applicable local law, in the name of the Secretary then listed in the GEMS database for the applicable entity, unless Customer notifies Computershare in writing otherwise. Alternatively, Computershare may sign documents as attorney-in-fact and Customer hereby grants to Computershare and its agents a Limited Power of Attorney to sign documents in such office and with such authority as is required to file the documents with the applicable jurisdictions.
- FEES. Annual fees (including Registered Agent Annual Representation and Managed Annual Report Service fees) and implementation fees, if included on the Order Form, will be invoiced in advance as described in the Order Form and state and foreign filing fees and other related disbursements related to Managed Annual Report Services (subject to Section 7) and other filing services will be invoiced monthly following completion of the associated service. The fees in the Order Form are fixed for the first year following the Billing Commencement Date. Computershare may increase the fees for each upcoming renewal year upon forty-five (45) days’ prior notification to Customer. All invoices must be paid in full within thirty (30) days of the date of such invoice. You will be charged interest on any overdue fees at a rate of 1.5% per month (18% per annum). Notwithstanding any other provision hereof, such interest rate will be no greater than permitted under applicable law. Customer is responsible for the payment of all taxes that may now or in the future be associated with the Services (other than taxes based on Computershare’s net income). If Customer fails to pay any outstanding balance within ninety (90) days of the due date and Computershare has notified Customer and provided a reasonable period to cure the default, the Services may be suspended without notice and Customer shall assume any liability for any damages incurred as a result of such suspension. Upon payment of the past due amounts, the Services will be reinstated prospectively. Customer assumes all liability for all charges incurred as a result of any and all services performed by Computershare on Customer’s behalf or upon Customer’s direction. These charges may include fees for service of process in excess of the number included in the Order Form.
- CONFIDENTIALITY. “Confidential Information” includes any proprietary or confidential information provided by the disclosing party to the receiving party that is marked “Confidential” or that otherwise, but its nature, would be reasonably understood to be confidential, including without limitation the GEMS service and Computershare pricing. Confidential Information does not include information that is (a) known to the receiving party at the time of disclosure; (b) received from a third party having the right to disclose such information to a party; (c) available to the public other than by a breach of an agreement with a party or its Affiliates; or (d) developed by the receiving party independently of the disclosing party’s Confidential Information. Each party shall keep all Confidential Information of the other party confidential except that (i) Computershare may disclose Customer’s Confidential Information as reasonably required to perform the Services (including without limitation to its Service Providers and Affiliates), and (ii) either party may disclose the Confidential Information of the other party if required by law, subpoena or similar legal demand (provided that the disclosing party is given reasonable notice of such law or order if legally permissible).
- THIRD PARTY PRODUCTS. Computershare is not responsible and disclaims all liability for any data uploaded to the GEMS database by Customer and/or Customer’s third party service providers. Customer shall be solely responsible for the installation, operation, maintenance, and functioning of equipment, software, products, or services not provided by Computershare and Computershare shall have no liability or responsibility in connection therewith.
- WARRANTY DISCLAIMER. Performance of the Services by Computershare requires the timely completion of Customers’ responsibilities and obligations. Computershare is not engaged in rendering legal or other professional services. COMPUTERSHARE AND ITS SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPUTERSHARE MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE MANNER OR THAT YOUR DATA WILL NOT BE LOST OR DAMAGED. YOU ASSUME SOLE RESPONSIBILITY AND ENTIRE RISK AS TO THE SUITABILITY AND RESULTS OBTAINED FROM USE OF THE SERVICES.
- LIMITATION OF LIABILITY. Computershare AND ITS AFFILIATES shall not be liable for any indirect, special, consequential or incidental damages including damages for loss of business profits, business interruption, loss of business information and the like arising out of the use of Computershare’s services, even if Computershare has been advised of the possibility of such damages. COMPUTERSHARE AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY ERROR, INADEQUACY, OR OMISSION THAT RESULTS FROM UNTIMELY, INNACURATE OR INCOMPLETE INFORMATION, DATA, DOCUMENTS, OR OTHER RECORDS DELIVERED, SUPPLIED, OR MADE AVAILABLE TO COMPUTERSHARE BY CUSTOMER OR AT THE DIRECTION OR UNDER THE AUTHORITY OF CUSTOMER. COMPUTERSHARE’S AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER THE AGREEMENT OR RELATING TO THE SERVICES WILL BE LIMITED TO THE AMOUNT ACTUALLY RECEIVED BY COMPUTERSHARE FOR THE PERFORMANCE BY COMPUTERSHARE OF THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. When receiving process on behalf of Customer, Computershare and its affiliates shall in no event be responsible for any part of the underlying claim, nor shall Computershare or its affiliates be responsible for the underlying collateral in connection with UCC filings or searches. In no event does Computershare or its affiliates assume any liability whatsoever to any party other than the Customer for Customer’s use of the Services, and Customer shall indemnify Computershare, UAG, and its and their affiliates (the “Computershare Indemnified Parties”) against any claims brought by such parties. If Computershare Indemnified Parties are subject to legal process on behalf of Customer, regardless of whether such process is due to Customer’s acts or omissions, Customer shall indemnify the Computershare Indemnified Parties for any expenses incurred, including without limitation reasonable attorneys’ fees.
- TERM. Unless otherwise set forth in your Order Form, the date of the first invoice will constitute the “Billing Commencement Date,” and the Services term will continue for the initial term indicated on the Order Form (the “Initial Term”) and year to year thereafter (each, a “Renewal Term”), unless terminated in accordance with this Section 15. Following the Initial Term, either party may terminate the Agreement by providing written notice of termination to the other party with thirty (30) days prior written notice, however no refunds will be provided. Termination shall not relieve Customer from paying all fees and expenses accruing prior to termination. Sections 6, 11, 13, 14 and 21 shall survive expiration or termination of the Agreement.
- INVOICING PROCESS. Immediately prior to the commencement of the Renewal Term, Computershare will send a “Unit/Entity Verification Report” to Customer to allow Customer to verify any units that may have been formed/qualified/dissolved. Computershare will send Customer the renewal invoice (“Annual Renewal Invoice”) based on the verified number of units.
- DISSOLUTIONS. Any units dissolved during the year will be removed from the next Annual Renewal Invoice for the next Renewal Term.
- FORMATIONS. Computershare does not pro-rate the fees for annual representation or managed annual reports for units formed or qualified during a contract year, which fees will be invoiced at the annual rate promptly following the applicable formation or qualification date. However, if a unit is formed or qualified during the fourth quarter of a contract year, there will be no fee for the first full contract year following the initial fourth quarter invoice for that unit.
- NOTICES. All notices delivered under the Agreement shall be in writing and deemed given upon receipt when delivered personally or upon confirmation of receipt following delivery of (a) nationally recognized overnight courier service or (b) registered or certified mail, return receipt requested, postage prepaid, addressed to each party at its last known address, to the address set forth on the Order Form or at such other address furnished by the respective party in writing.
- FORCE MAJEURE. In the event that Computershare is prevented from performing, or is unable to perform, any of its obligations under the Agreement due to any cause beyond its reasonable control, Computershare’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided, that Computershare: (a) provides you prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.
- GENERAL TERMS. The Agreement shall be construed, interpreted and the rights of the parties determined in accordance with the laws of the State of New York, without regard to conflicts of law principles. The parties will submit to the exclusive personal and subject matter jurisdiction of the state and federal courts located in the City and County of New York, New York. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Computershare’s failure to act with respect to a breach by you or others does not waive Computershare’s right to act with respect to subsequent or similar breaches. The section titles in the Agreement are for convenience only and have no legal or contractual effect. Computershare may use affiliated and unaffiliated entities to perform the Services, provided that Computershare will be responsible for the compliance by such third parties with the terms of the Agreement. You may not assign the Agreement or any of the rights granted to you hereunder. Computershare may assign the Agreement without your consent to an affiliate of Computershare or to a successor in interest or to a party acquiring all or substantially all of Computershare’s registered agent services business through a merger, acquisition, reorganization or other transaction. The Agreement constitutes the entire agreement between Computershare and you regarding the Services and supersedes all prior written and oral agreements. There are no third party beneficiaries to The Agreement.
- MODIFICATIONS. NO CHANGES TO THESE TERMS AND CONDITIONS WILL BE ACCEPTED. COMPUTERSHARE MAY CHANGE, ADD, OR REMOVE ANY PART OF THE AGREEMENT AT ANY TIME. SUCH CHANGES SHALL BE POSTED ON THE APPLICABLE ONLINE PORTAL OR OTHERWISE MADE AVAILABLE TO YOU. IF ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, YOU SHOULD DISCONTINUE USING THE SERVICES AND YOUR EXCLUSIVE REMEDY WILL BE TO TERMINATE THE AGREEMENT BY SENDING WRITTEN NOTICE TO COMPUTERSHARE AND RECEIVE A REFUND OF ANY UNUSED ANNUAL SERVICE FEES. YOUR CONTINUED USE OF THE SERVICES OR PAYMENT THEREFOR, NOW OR FOLLOWING THE POSTING OF A REVISED VERSION OF THE AGREEMENT, WILL INDICATE YOUR ACCEPTANCE OF THESE TERMS AND OF ANY SUCH REVISED VERSION.
Revised August 7, 2018