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FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023
Rossar KYouna & ASSOCIATES, P.C.
ATTORNEYsAT LAW
2284 BABYLONTURNPlKE
MERRICK, NY I 1566
5 16-826-8938
FAX 5 I6-826-8932
ROBERTKYOUNGLAW.COM
ROBERT K. YOUNG
joNATHAN VAN DINA
GARY J. YOUNG*
MARK Atrisi
ACK CUTRONE
ANTHONY 5PADARO
*ALSO ADMITTED(N NJ & CT ANTHONY DELLUNIVERSITA
JOHN C. 5PATARO
November 28, 2022
Litchfield Cavo LLP
420 Lexington Ave, Suite 2104
New York, New York 10170
illinger Miller Tarallo, LLP
5*
55 Taxter Road, Floor
Elmsford, NY 10523
LEWIS JOHS AVALLONE AVILES LLP
1377 Motor Pkwy #400
Islandia, NY 1 1749
Re: Del Carmen Cabrera v. Petsta, Petco, and Staples
Index No.: 611420/2021
Dear Counselors,
Enclosed please find documents from Dentco, INC which Plaintiff intends to admit at the
time of trial herein.
In the event further information is needed, please contact the office of the undersigned,
who remains,
Very truly yours,
JONA VAN DINA
Encl.
FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023
Rossar K.Younc e.
ASSOCIATES, P.C.
ARORNEYSAT LAW
2284 BABYLONTURNPtKE
MeRRic8, NY I 1566
516-826-8938
FAx 516-826-8932
ROBERTKYouNGLAW.COM
ROBERTK. YOUNG
joNATHAN VAN DINA
GARY J. YOUNG*
MARK ALRSl
ACK CUTRONE
ANTHONY 5PADARO
*ALso ADMrTTEDIN NJ & CT
ANTHONY DeuUNIVERsITA
ALEXANDER W. SlDERIs
November 3, 2022
Litchfield Cavo LLP
420 Lexington Ave, Suite 2104
New York, New York 10170
Pillinger Miller Tarallo, LLP
5*
555 Taxter Road, Floor
Elmsford, NY 10523
SHAUB, AHMUTY, CITRIN & SPRATT LLP
16*
199 Water Street, Floor
New York, New York 10038
Re: Del Carmen Cabrera v. Petsta, Petco, and Staples
Index No.: 611420/2021
Dear Counselors,
Enclosed please find documents from Dentco, INC which Plaintiff intends to admit at the
time of trialherein.
In the event further information is needed. please contact the office of the undersigned,
who remains,
you·
Very truly ,
JO AN VAN DINA
Encl.
FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023
AMENDMitNT 6
TO
PROFESSIONAl..SERVICliS AGREEMENT
TlilS AMENDMENT 6 TO FROFIISSIONAL SERVICES AGRffEMENT (the is made
as of June 2020 (the "Amendencig")
8, "EffectiveDate") between Dent linterprises,
Inct DENTCO ("Ecmlet") and
OFFICE SUPERSTORE EAST, I,1,CF/K/A STAPLES, INC. ("StapJ.ccE")-
WFIEREAS, Vendor and Staples are parties
to thatServicesAgreement c1Tectiveas ofOctober
amended October 15, 2008,
1,2010, nmended May I, 2012, amended May 16, 2013, and August 15 2016,
September 13.2018 (the"ágtWme.nt')i and
W@IEREAS, the parties
wish 10 amend the Agreement as set Ibrth
below
NOW, Ti·lEREFORE, for good and valuabic the
consideration, receiptand su0kiency of whicitis hereby
acknowledged, the parties
hereby agreeas follows:
1. Duration, Use the option to extendas notedbelow. The Term of theAgreement is extended for
an additionalone years on
beginning September I,2020 and on August
Clicm ending 31, 2011.
shallhave the optionof the term of
renewing thisAgreement foradditional of
one year. periods
Unlessotherwise modified this all
by Amendment, tenus and conditionscontained
in the Agreement shallcontinue in fullforce and effect All capitalizedterms used
shallhave herein
the meanings ussigned to them in the Agreemem, unlessotherwise deaned herein. .
IN WITNESS WilEREOF, the parties
have executed thisAmendment us ofthe EffectiveDate.
Dent Enterprises,Inc ; DENTCO OFFICE SUFERSTORE EAST, LLC F/K/A
STAI'LES, INC.
Name: CoTf tfAil.,vrL S Name:
-..Andrew T-horpe
Title: t¾(®4 rJT -VP-Facilities-Mgmt-&..Design
Andrew Thorpe.
Vice President,
Sevelopment & FacNities
Management
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NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (this "Aereement") ismade effectiveas of
October 15*, 2008 (the "Effective Date"), by and between DENT ENTERPRISES, INC.,"DENTCOF
("Vendor") and STAPLES, INC. ("Staples"). Staples and Vendor are collectively referred to as the
"parties".
WHEREAS, Vendor and Staples desireto enter into an agreement for theperformance by Vendor
of certainprofessional services for Staples; .
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the partiesagree as follows:
1. SCOPE OF SERVICES.
(a) Statement(s) of Work. During the Term (as defined below) and ifmutually agreed to in
writing, Vendor may from time totime provide certainservices to Staples (the "Services"). Any Services
shallbe evidenced by one or more written statements of work (each, a "SjN") which may include the
following information: (i)a detailed description ofthe Services; (ii)a projected timetable for completion
Staples'
of the Services; (iii) special conditions of acceptance, if any; (iv)the location where the Services
are tobe performed; (v) the projected commencement aridtermination dates; (vi)Vendor's compensation
rates;(vii)maximunt authorized fee for theServices and maximum reimbursable expenses, ifany; (viii)
parties'
names of the appointed projectrepresentatives; (ix)a timetable for invoicing; and (xi) such other
requirements for the Services as may be agreed to in writing by the parties. The main body of this
Agreement shall controlover any conflictingprovisions ofthe SOW unless such SOW specificallystates
thattheconflictingprovisionsbouldprevailoversuchmainbody.
(b) No Obligation. This Agreement does not impose on Staples an obligation to deal
exclusively with Vendor for services similar to the Services. In addition,Vendor is not obligated to
undertake, and Staples isnot obligated to purchaseor pay for, any Servicesunless thisAgreement and a
SOW for such Services isexecuted and delivered by both parties. .
2. TERM.
(a) Term of Agreement. This Agreement shall commence as ofthe Effective Date and shall
continue forone year through November 30, 2009 with an option to renew for 1 additionalyears through
November 30, 2012, unless otherwise terminated earlierpursuant tothe terms hereof,until thelater of(i)
the [first]anniversary of the Effective Date or (ii)the expiration or termination of,or completion of all
Services pursuant to,any outstanding SOW (the"T-91m").
l'
-
(b) Term of TOW, Any SOW entered into prior to the expiration or termination of this
Agreement shallcontinue in effectthrough the earlier of:(i)the date allof the Services thereunder have
been fully completed and accepted (ifapplicable) by Staples,or (ii)untilsuch time as such SOW expires
or isterminated in accordance with itstenns or is terminatedpursuant to Section 9 hereof.
3. PAYMENT TERMSAND INVOICING.
(a) F_aeJ. Inconsideration for and subject to Vendor's fullperformance of the obligationsas
described herein and inthe relevant SOW, Staples shallpay to Vendor the fees set forthin the SOW.
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Staples shall not have any obligation to pay for Services not rendered due to any termination of this
Agreement or any SOW as provided herein.
(b) Expenses. Staples will pay only those expenses of Vendor that are expressly set forthin
Staples'
the SOW and only ifallsuch expenses are: (i)incurred inaccordance with Vendor Travel Policy
Staples'
which isthen iD effect(a copy of currentVendor Travel Policy shall be provided upon request),
Staples'
(ii)incurred in accordance with a budget which has been pre-approved by projectmanager, and
(ii0 itemized on the relevant invoice together with appropriate receipts providing sufficientbackup for
such expenses. Unless otherwise specified in a SOW, allappmved expenses and pass through charges .
shallbe reimbursed atcost as actually incurred, without mark up by Vendor.
(c) Invoicing. Vendor shallrender invoices to Staples in accordance with the payment terins
setforth inthe SOW. The invoice shallindicate the nature of the work performed, the ratefor such work,
and any reasonable expenses incurred by Vendor that areto be paid by Staples as set forthin Section 3(b)
above, as well as thetotal amount then due. Except as otherwise provided in a SOW, invoices shall be
issued monthly in alrearsfor the Services completed during that period and shallbe due and payable
within 45 days afterreceipt of theinvoice and allrequired documentation.
(d) Invoicing Disputes. Staples shall notify Vendor of any invoice disputeby email or in
writing within the time frame specified for payment of the invoice.The partiesshall work in good faithto
resolve any invoicing disputes as quicklyas reasonably possible.The non-payment of any disputed items
shall not constitute a breach under thisAgreement. Staples shall pay allamounts due thatare not in
dispute within the time frame specified above.
(e) Taxes. Vendor shall be responsible for thewithholding or payment, as requiredby law, of
all federal,state and local taxes (including, without limitation,all employment, income, sales, use,
services and other taxes) imposed on Vendor or itsemployees orpermitted subcontractors because of the
performance ofServices hereunder. Furthermore, Vendor shall comply with allfederal and statebenefits
laws applicable to Vendor or its employees, including, without limitation, making deductions and
contributions to socialsecurity,disability and unemployment tax.Each party shall be responsible for the
payment of other taxes, ifany, imposed upon it resulting from, arising out of or relating to this
Agreement. Vendor agrees to reasonably cooperate with Staples in order to.minimize any such tax
obligations.
4. PROPRIETARY INFORMATION. The parties have entered into that certain
Agreement for Use and Non-Disclosure of Proprietary Information dated as of June 17, 2008 (the
Information"
"HDA"). The disclosure of any "Proprietary (as defined in the NDA) made under this
Agreement shall be governed by the NDA.If thereisany conflictbetween the terms of the NDA and this
Agreement, the terms ofthis Agreement shallprevail.
5. VENDOR REPRESENTATIONS.
Vendor represents and warrants that(a)ithas fullpower to enterinto thisAgreement, to carry out
itsobligationsunder thisAgreement and to grant allother rights
granted herein to Staplesl(b)it and allof
itsemployees and permitted subcontractors used toprovide the Services and Work Product (asdefimed
below) shall operate in compliance with all applicable federal, state and local laws, statutes,codes,
ordinances and and that itis properly registeredto do business or licensed in alljurisdictions
regulations,
in which it willprovide Services and Work Product; and (c) ithas the requisite skill,experience and
resources to perform allServices and deliver allWork Product, thatthe Services and Work Product shall
be performed in a timelyand professional manner consistent with industry standards, exercising due skill
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and care and that each Work Product delivered as part of the Services shall operate in accordance with
any applicable specifications or documentation, ifany.
6. OWNERSHIP.
(a) Ownership of Work Product. Except as otherwise expressly set forthbelow or in a SOW,
allright, and
title, interestin and to any deliverables and otherwork product provided to Staples or its
Affiliates under thisAgreement (collectively referred to herein as "Work Product") shallbe exclusively
owned by Staples, including, without limitation,allrights under any applicable copyrights, patents, trade .
secats, and other intellectualproperty rights.Vendor hereby assigns to Staples allright, and
title, interest
in and to all sucli Work Product (other than Vendor Property as defined below), including, without
limitation,allrights under any applicable copyrights, patents, trade secrets,and other intellectualproperty
Staples'
rights.From tinfe totime upon request, Vendor and itspersonnel shallconfirm such assignments
by execution at+d deliveryofsuch writteninstruments as Staples may request.
(b) . Vendor Ownership. Notwithstanding the foregoing, Vendor shall retain allownership
rightsto itstrademarks and toany commercially available products of Vendor developed independently
of thisAgreement thatare provided toStaples ("Vendor Property").
Vendor Know-How. Notwithstanding Staples? ownership of the Work Product (other
(c)
than Vendor Property), Vendor shallbe free touse inother engagements itsgeneral know-how,
skills, and
whethei· or gained under so as it acquires and applies such
expertise, prebexisting thisAgreement, long
information without disclosure of any Proprietary Information of Staples.Vendor shallnot in any event
Staples'
provide the specificWork Product provided to Staples toany third party without prior written
Staples'
consent, which may be withheld in sole discretion. In addition, thisAgreement does not grant
Staples'
Vendor any licenses under any of patents,trade secrets orcopyrights.
Staples'
(d) Materials. If Staples provides to Vendor any tools,equipment, soAware, lists,
contacts
files, or othermaterials of any kind that are owned by Staples or any third party (collectively
referred to as "Staples Provided Materials"), Staples grants to Vendor a non-exclusive, non-
limited,
transferablelicense to use such Staples Provided Materials solelyin connection with the performance of
itsobligationsunder the SOW towhich they relateand solelyfor the term ofsuch SOW. Vendor agrees to
abideby any and alllicense requirements and instructions of Staples related to such Staples Provided
Materials. Vendor shallnot acquire any right,titleor interesttothe Staples Provided Materials by virtue
of thisAgreement, other than the limited license expressly granted to Vendor. Vendor shall not allow
access to such Staples Provided Materials to any third party (other than permitted subcontractors as
provided in Section 12(b)).Upon the expiration ortermination ofthis Agreement or relevant SOW, as the
case may be (orearlier upon therequest of Staples),Vendor shallreturn the Staples Provided Materials to
Staples in substantiallythe same condition as provided toVendor, normal wear and tearexcepted, and
shallnot retainany copy thereof.With respect tosoftware owned or licensed by Staplesand provided to
Vendor for purposes of performing the Services, Vendor shall not copy, reproduce, modify, adapt,
translate or createany derivativeworks from such soAware (unlessspecifically authorized by Staples as
part of the Services), or disassemble, decompile, reverse engineer or make any other attempt by any
means to discover or obtain the souree code of such soAware (ifsuch sofhvare is provided and only
intended to be used inobject code format).
(e) Iniunctive Relief. Vendor acknowledges that for damages for
any remedy money any
violation ofthis Section shall be inadequate and Staples may suffer immediate and irreparable damage
through any breach or threatened breach. Accordingly, Staples may, in addition to all other legal
remedies, specifically enforce this Section and seek injunctive relief to prevent threatened or
any
continuing breach without requirement ofnotice or of bond.
posting
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7. INDEMNIFICATION.
Indemnification. Each (an "Indemnifying Party") shall defend at itsown expense
(a) party
the other the other'sdirectors, officers,employees, agents, and Affiliates (as defined in
party including
Section (collectively,the "Indemnified Party"),from and against any and all thirdparty
15(a) below)
demands, suitsor actions resulting from, arisingout of orrelating to the Indemnifying Party's
claims,
itsemployees and anyone actingon itsbehalf) (i)allegedor actual negligent actsor omissions,
(including
willfni misconduct or fmud in connection with this Agreement, (ii)alleged or actual breach of this
alleged or actual violation of any statute,law, ordinance or regulation, or (iv) with
Agreement; (iii)
respect to Vendor as the Indemnifring Party any alleged or actualinfringement of any patent, copyright,
trademark, trade secret or other intellectualproperty or other rights of a third party arising out of the
Services orWork Product (collectively,an "Indemnifiable Claim"). With respect toeach Indemnifiable
Claim, theIndemnifying shallindemnify and hold harmless the Indemnified Party fNm and against
Party
and alldamages, judgments, awards, expenses,·and costs that are awarded and payable to the third
any
a court of competent jurisdiction or that are payable pursuant to a settlement made by the
party by
Indemnifying Party.
Staples'
(b) Correction ofImpeded Use. If continued use of any Work Product becomes or
Staples'
may become impeded in any way due to an actual or anticipatedIndemnifiable Claim, then at
request and option Vendor shallat itsexpense either(i) obtain forStaples the rightto continue using the
Work Product, (ii)replace or modify theWork Product so thatitis no longer subject to such claim, and
continues to perform in a functionally equivalent manner in compliance with any existingspecifications,
or if
(iii) neither of the foregoing options iscommercially practicable,refund to Staples allamounts paid
by Staples for the Work Product in which case Staplesmay in itsdiscretion immediately terminate this
Agreement or therelevant SOW.
(c) Procedures. The Indeninified Party shall give the Indemnifying Party prompt written
notice of any Indemnifiable Claim. Such notice shallnot diminish the Indemnifying Party's indemnity
obligations hereunder unless and only to the extent that the Indemnifying Party is materially and
adversely affected by the Indemnified Party'sfailure ordelay to give notice.The Indemnifying Party shall
control the defense or settlement of any Indemnifiable Claim. The Indemnified Party shall reasonably
cooperate (atthe Indemnifying Party's expense) with the Indemnifying Party in thedefense ofsuch claim.
Any settlement by the Indemnifying Party must be approved by the Indemnified Party, with such
approval not tobe unreasonably withheld (except that any settlement requiring theIndemnified Party to
make any admission of shall
liability be subjectto the Indemnified Party'sapproval initssole discretion).
The Indemnified Party also has theright to retainitsown counsel at itsown expense in connection with
such claim. If the Indemnifying Party has been advised by thewritten opinion of counsel to eitherparty
that the use of the same counsel to represent both partieswould present a conflictof interest,then the
Indemnified Party may select itsown counsel and all costs of the.defense shall be borne by the
Indemnifying Party.
8. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER POR ANY SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, MULTIPLE, OR PUNITIVE DAMAOES OF ANY KIND,
INCLUDINO, WITHOUT InflTATION, LOST PROPITS, EVEN IF ADVISED OP THE
POSS]BILITY THEREOF. THE POREGOING LIMITATION OF LIABILITY SHALL NOT APPLY
TO AMOUNTS PAYABLE BY A PARTY PURSUANT TO ITS INDEMNIFICATION
OBLIGATIONS HEREUNDER, BUT SHALL APPLY IN ALL OTHER INSTANCES REGARDLESS
OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
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9. TERMINATION.
(a) Termination for Breac|t.If a partybreaches thisAgreement, including document that
any
thisAgreement references as being attached hereto or incorporated herein reference, the other
by party
shall have the right toterminate thisAgreement by providing written noticeof termination, ifthe breach
has not been cured within 30 days following receipt of written notice of the breach. The non-breaching
party shallnot be obligated to pay for thebreaching party's time orresources to cure any breach.
(b) Termination by Staples. Inaddition to any other termination rights,Staples shallhave the
right inits discretionto terminate thisAgreement or any SOW under this Agreement, for any reason or
for no reason, upon 30 days priorwritten notice toVendor.
(c) Survival. The following provisions shall survive any expimtion or termination of this
Agreement: Section 3 (Payment Terms and Invoicing), Section 4 (Confidential Information), Section 5
(Vendor Representations), Section 6 (Ownership), Section 7 (Indemnification), Section 8 (Limitation of
Liability),Section 9 (Termination), Section 10 (Insurance) (until expiration or termination of all
Statements of Work hereunder), Section 11 (Independent Contractor), Section 12 (Vendor Personnel),
Section 13 (Notices), Section 14 (Force Majeure), and Section 15 (General Terms).
10. INSURANCE. Priorto the startof any Services, Vendor shallat itsown expense procure
and shallmaintain during the Term of this Agreement the minimum insurance covering itsactivities
hereunder as set forthon Exhibit A (the "Fequired Insurance"). Within 15 days after execution of this
Agreement, Vendor shalldeliver to Staples certificates
of insurance made out by the applicable insurer(s)
or theirauthorized agents with respectto the Required Insuance and for any material policy amendments
("Insurance Certificates").Vendor shallcomply with allwarranties, declarations and conditions contained
in each policy. Each policy shall provide for 30 days prior written notice to be given by the insurer to
Staples ifthere is any termination, non-renewal or cancellation, or any material change in coverage or
deductible amounts. All Required Insurance shall (i)provide primary coverage and not call upon any
other insurance procured by otherparties fordefense, payment.oncontribution, and (ii)be provided on an
occurrence rather than a claims made basis.If any Required Insurance is available only on a claims-made
basis, then the dates of coverage (including the retroactivedate) and the time period within which any
claim can be filedshall continue during the Term of thisAgreement and fora period of 3 years thereafter
and shall be stated on the Insurance Certificate, and Vendor shallnot permit any gaps in coverage to
occur. All Required Insurance shallbe carried with responsible insurance companies of recognized
standing which are authorized to do business inthe state inwhich the Services are rendered and are rated
A VB or betterby A.M. Best. IfVendor failsto procure or maintain the Required Insurance, Staples shall
have theright, but not the obligation, toeffect such insurance atVendor's expense. Without limiting the
foregoing, Vendor shall indemnify and hold harmless Staples against allliabilityand loss in connection
with Vendor's failureto comply with the provisions of thisSection. The RequiredInsurance, however, in
no manner relieves or releases Vendor, itsagents, subcontractors, and invitees from, or limits their
liabilityas to, any and allobligations assumed or risksindemnified against in thisAgreement. The
. Insurance Certificateshall statethat Staples, Inc. and Its Affiliatesare included as additional insureds
ATIMA (As Their InterestsMay Appear).
11. INDEPENDENT CONTRACTOR. Each of thepartiesisan independent contractorand
shallnot be considered to be an agent, distributoror representativeof the other.Neither party shallact or
represent itself,
directly orby implication, asan agent of theother or inany manner assume or createany
obligation on behalf of,or in the name of, the other.All personnel supplied or used by Vendor shallbe
deemed employees, agents or subcontractors of Vendor and shallnot be considered employees, agents or
subcontractors of Staples for any purpose whatsoever. Vendor shallassign only Vendor personnel or
permitted subcontractors who are legallyeligible to work in the location in which Services are to be
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performed those personnel or permitted subcontractors. Vendor assumes fullresponsibility for the
by
actions of all such personnel and permitted subcontractors while performing Services under this
Agreement and forthe payment of theircompensation (including, if applicable,withholding of income
workers'
taxes and the payment and withholding of social security and other applicable taxes),
compensation, disabilitybenefits and the liketo the extentapplicable. Vendor shalldefend, indemnify and
hold harmless Staples againstallliabilityand loss inconnection with, and shallassume full responsibility
payment of allfederal,stateand local taxes orcontributions imposed or required under unemployment
for,
insurance, socialsecurity and income tax laws and allother laws applicable to Vendor or itsemployees or
permitted subcontractors engaged in performance of thisAgreement.
12. VENDOR PERSONNEL.
(a) On-Site Services. If any Vendor personnel (including employees or permitted
Staples' Staples'
subcontractors) are on premises, Vendor shallcause such persons tocomply with allof
rules, regulations and policies regarding the workplace as well as applicable·security procedures and
fitnessfor duty requirements, including, without limitation, itspolicy on drugs and alcohol (collectively
Staples'
"Workplace Rules"). Staples may immediately remove any Vendor personnel from premises for
Staples'
securityreasons or fornoncompliance with Workplace Rules. Vendor agrees that any equipment
Staples'
or personal property brought onto premises during any such visitshallbe at Vendor's sole risk
and Staples shall not be responsible for any lossor damage resulting to such equipment or personal
property. Staples may request the replacement of any Vendor personnel that Staples reasonably
determines is not satisfactorilyperforming the Services (including, without limitation, for reasons of
interpersonalskills)and Vendor shalluse commercially reasonable effortsto comply with such request.
(b) Subcontractors. Without limiting Section 12(a) hereof, any use by Vendor of any
subcontractors shall be subject to the following: (i) Vendor shall provide notice specifying the
subcontractor's name and company (where applicable) prior to such subcontractor performing any
Services and Staples reserves the right to exclude any such subcontractor from performing Services
(Staples'
approval to be in writing or by email); (i0 each approved subcontractor shall be bound by
Staples' Staples'
writtenobligations thatare at leastas protectiveof business, Proprietary Inforrnation and
any other materials provided by Staples as the terms of thisAgreement and the NDA; and Vendor
(iii)
shallremain fully responsible toStaples for thecomplete performance of allServices and shallbe liable
for any subcontractor'snoncompliance with any terms of thisAgreement or theNDA.
13, NOTICES. Except as otherwise expressly provided in this Agreement or a SOW, all
notices or demands required or permittedpursuant to thisAgreement shallbe in writing,and shall be sent
(a) by courier or in person with signed receipt,(b) by nationally recognized overnight delivery service,
prepaid, with signature required or (c) by fax ifpromptly confirmed by copy sent pursuant toany ofthe
foregoing methods, and in each case shall be sent to the other party at itsaddress ·set forthbelow or to
such other addresses as eitherparty may designate from time to time by notice to the other party in
accordance with thisSection. Notices shallbe deemed received upon actualreceipt orrefusal of delivery.
14. FORCE MAJEURE. Except for payment obligations, neither party shall be liable for
any delays or other non-performance resulting from circumstances or causes beyond its reasonable
control that arenot due tothe negligence or misconduct of the party claiming relief under this Section,
including, without limitation,fireor other casualty,act of God, war, terrorism,or otherviolence, any law,
order or requirement of any govemmental agency or authority or other causes beyond the reasonable
control of such party, provided that such party has informed the other party of such force majeure event
promptly uport the occurrence thereof (including a reasonable estimate of the additional time required for
perfonnance tothe extent determinable) and such party uses reasonable commercial efforts toeffect the
required performance as soon as reasonably practicable.
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15. GENERAL TERMS.
(a) Time of the Esseppe. Time isof the essence with respect to
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FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 Rossar KYouna & ASSOCIATES, P.C. ATTORNEYsAT LAW 2284 BABYLONTURNPlKE MERRICK, NY I 1566 5 16-826-8938 FAX 5 I6-826-8932 ROBERTKYOUNGLAW.COM ROBERT K. YOUNG joNATHAN VAN DINA GARY J. YOUNG* MARK Atrisi ACK CUTRONE ANTHONY 5PADARO *ALSO ADMITTED(N NJ & CT ANTHONY DELLUNIVERSITA JOHN C. 5PATARO November 28, 2022 Litchfield Cavo LLP 420 Lexington Ave, Suite 2104 New York, New York 10170 illinger Miller Tarallo, LLP 5* 55 Taxter Road, Floor Elmsford, NY 10523 LEWIS JOHS AVALLONE AVILES LLP 1377 Motor Pkwy #400 Islandia, NY 1 1749 Re: Del Carmen Cabrera v. Petsta, Petco, and Staples Index No.: 611420/2021 Dear Counselors, Enclosed please find documents from Dentco, INC which Plaintiff intends to admit at the time of trial herein. In the event further information is needed, please contact the office of the undersigned, who remains, Very truly yours, JONA VAN DINA Encl. FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 Rossar K.Younc e. ASSOCIATES, P.C. ARORNEYSAT LAW 2284 BABYLONTURNPtKE MeRRic8, NY I 1566 516-826-8938 FAx 516-826-8932 ROBERTKYouNGLAW.COM ROBERTK. YOUNG joNATHAN VAN DINA GARY J. YOUNG* MARK ALRSl ACK CUTRONE ANTHONY 5PADARO *ALso ADMrTTEDIN NJ & CT ANTHONY DeuUNIVERsITA ALEXANDER W. SlDERIs November 3, 2022 Litchfield Cavo LLP 420 Lexington Ave, Suite 2104 New York, New York 10170 Pillinger Miller Tarallo, LLP 5* 555 Taxter Road, Floor Elmsford, NY 10523 SHAUB, AHMUTY, CITRIN & SPRATT LLP 16* 199 Water Street, Floor New York, New York 10038 Re: Del Carmen Cabrera v. Petsta, Petco, and Staples Index No.: 611420/2021 Dear Counselors, Enclosed please find documents from Dentco, INC which Plaintiff intends to admit at the time of trialherein. In the event further information is needed. please contact the office of the undersigned, who remains, you· Very truly , JO AN VAN DINA Encl. FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 AMENDMitNT 6 TO PROFESSIONAl..SERVICliS AGREEMENT TlilS AMENDMENT 6 TO FROFIISSIONAL SERVICES AGRffEMENT (the is made as of June 2020 (the "Amendencig") 8, "EffectiveDate") between Dent linterprises, Inct DENTCO ("Ecmlet") and OFFICE SUPERSTORE EAST, I,1,CF/K/A STAPLES, INC. ("StapJ.ccE")- WFIEREAS, Vendor and Staples are parties to thatServicesAgreement c1Tectiveas ofOctober amended October 15, 2008, 1,2010, nmended May I, 2012, amended May 16, 2013, and August 15 2016, September 13.2018 (the"ágtWme.nt')i and W@IEREAS, the parties wish 10 amend the Agreement as set Ibrth below NOW, Ti·lEREFORE, for good and valuabic the consideration, receiptand su0kiency of whicitis hereby acknowledged, the parties hereby agreeas follows: 1. Duration, Use the option to extendas notedbelow. The Term of theAgreement is extended for an additionalone years on beginning September I,2020 and on August Clicm ending 31, 2011. shallhave the optionof the term of renewing thisAgreement foradditional of one year. periods Unlessotherwise modified this all by Amendment, tenus and conditionscontained in the Agreement shallcontinue in fullforce and effect All capitalizedterms used shallhave herein the meanings ussigned to them in the Agreemem, unlessotherwise deaned herein. . IN WITNESS WilEREOF, the parties have executed thisAmendment us ofthe EffectiveDate. Dent Enterprises,Inc ; DENTCO OFFICE SUFERSTORE EAST, LLC F/K/A STAI'LES, INC. Name: CoTf tfAil.,vrL S Name: -..Andrew T-horpe Title: t¾(®4 rJT -VP-Facilities-Mgmt-&..Design Andrew Thorpe. Vice President, Sevelopment & FacNities Management FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (this "Aereement") ismade effectiveas of October 15*, 2008 (the "Effective Date"), by and between DENT ENTERPRISES, INC.,"DENTCOF ("Vendor") and STAPLES, INC. ("Staples"). Staples and Vendor are collectively referred to as the "parties". WHEREAS, Vendor and Staples desireto enter into an agreement for theperformance by Vendor of certainprofessional services for Staples; . NOW, THEREFORE, in consideration of the foregoing, the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the partiesagree as follows: 1. SCOPE OF SERVICES. (a) Statement(s) of Work. During the Term (as defined below) and ifmutually agreed to in writing, Vendor may from time totime provide certainservices to Staples (the "Services"). Any Services shallbe evidenced by one or more written statements of work (each, a "SjN") which may include the following information: (i)a detailed description ofthe Services; (ii)a projected timetable for completion Staples' of the Services; (iii) special conditions of acceptance, if any; (iv)the location where the Services are tobe performed; (v) the projected commencement aridtermination dates; (vi)Vendor's compensation rates;(vii)maximunt authorized fee for theServices and maximum reimbursable expenses, ifany; (viii) parties' names of the appointed projectrepresentatives; (ix)a timetable for invoicing; and (xi) such other requirements for the Services as may be agreed to in writing by the parties. The main body of this Agreement shall controlover any conflictingprovisions ofthe SOW unless such SOW specificallystates thattheconflictingprovisionsbouldprevailoversuchmainbody. (b) No Obligation. This Agreement does not impose on Staples an obligation to deal exclusively with Vendor for services similar to the Services. In addition,Vendor is not obligated to undertake, and Staples isnot obligated to purchaseor pay for, any Servicesunless thisAgreement and a SOW for such Services isexecuted and delivered by both parties. . 2. TERM. (a) Term of Agreement. This Agreement shall commence as ofthe Effective Date and shall continue forone year through November 30, 2009 with an option to renew for 1 additionalyears through November 30, 2012, unless otherwise terminated earlierpursuant tothe terms hereof,until thelater of(i) the [first]anniversary of the Effective Date or (ii)the expiration or termination of,or completion of all Services pursuant to,any outstanding SOW (the"T-91m"). l' - (b) Term of TOW, Any SOW entered into prior to the expiration or termination of this Agreement shallcontinue in effectthrough the earlier of:(i)the date allof the Services thereunder have been fully completed and accepted (ifapplicable) by Staples,or (ii)untilsuch time as such SOW expires or isterminated in accordance with itstenns or is terminatedpursuant to Section 9 hereof. 3. PAYMENT TERMSAND INVOICING. (a) F_aeJ. Inconsideration for and subject to Vendor's fullperformance of the obligationsas described herein and inthe relevant SOW, Staples shallpay to Vendor the fees set forthin the SOW. FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 Staples shall not have any obligation to pay for Services not rendered due to any termination of this Agreement or any SOW as provided herein. (b) Expenses. Staples will pay only those expenses of Vendor that are expressly set forthin Staples' the SOW and only ifallsuch expenses are: (i)incurred inaccordance with Vendor Travel Policy Staples' which isthen iD effect(a copy of currentVendor Travel Policy shall be provided upon request), Staples' (ii)incurred in accordance with a budget which has been pre-approved by projectmanager, and (ii0 itemized on the relevant invoice together with appropriate receipts providing sufficientbackup for such expenses. Unless otherwise specified in a SOW, allappmved expenses and pass through charges . shallbe reimbursed atcost as actually incurred, without mark up by Vendor. (c) Invoicing. Vendor shallrender invoices to Staples in accordance with the payment terins setforth inthe SOW. The invoice shallindicate the nature of the work performed, the ratefor such work, and any reasonable expenses incurred by Vendor that areto be paid by Staples as set forthin Section 3(b) above, as well as thetotal amount then due. Except as otherwise provided in a SOW, invoices shall be issued monthly in alrearsfor the Services completed during that period and shallbe due and payable within 45 days afterreceipt of theinvoice and allrequired documentation. (d) Invoicing Disputes. Staples shall notify Vendor of any invoice disputeby email or in writing within the time frame specified for payment of the invoice.The partiesshall work in good faithto resolve any invoicing disputes as quicklyas reasonably possible.The non-payment of any disputed items shall not constitute a breach under thisAgreement. Staples shall pay allamounts due thatare not in dispute within the time frame specified above. (e) Taxes. Vendor shall be responsible for thewithholding or payment, as requiredby law, of all federal,state and local taxes (including, without limitation,all employment, income, sales, use, services and other taxes) imposed on Vendor or itsemployees orpermitted subcontractors because of the performance ofServices hereunder. Furthermore, Vendor shall comply with allfederal and statebenefits laws applicable to Vendor or its employees, including, without limitation, making deductions and contributions to socialsecurity,disability and unemployment tax.Each party shall be responsible for the payment of other taxes, ifany, imposed upon it resulting from, arising out of or relating to this Agreement. Vendor agrees to reasonably cooperate with Staples in order to.minimize any such tax obligations. 4. PROPRIETARY INFORMATION. The parties have entered into that certain Agreement for Use and Non-Disclosure of Proprietary Information dated as of June 17, 2008 (the Information" "HDA"). The disclosure of any "Proprietary (as defined in the NDA) made under this Agreement shall be governed by the NDA.If thereisany conflictbetween the terms of the NDA and this Agreement, the terms ofthis Agreement shallprevail. 5. VENDOR REPRESENTATIONS. Vendor represents and warrants that(a)ithas fullpower to enterinto thisAgreement, to carry out itsobligationsunder thisAgreement and to grant allother rights granted herein to Staplesl(b)it and allof itsemployees and permitted subcontractors used toprovide the Services and Work Product (asdefimed below) shall operate in compliance with all applicable federal, state and local laws, statutes,codes, ordinances and and that itis properly registeredto do business or licensed in alljurisdictions regulations, in which it willprovide Services and Work Product; and (c) ithas the requisite skill,experience and resources to perform allServices and deliver allWork Product, thatthe Services and Work Product shall be performed in a timelyand professional manner consistent with industry standards, exercising due skill 2 FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 and care and that each Work Product delivered as part of the Services shall operate in accordance with any applicable specifications or documentation, ifany. 6. OWNERSHIP. (a) Ownership of Work Product. Except as otherwise expressly set forthbelow or in a SOW, allright, and title, interestin and to any deliverables and otherwork product provided to Staples or its Affiliates under thisAgreement (collectively referred to herein as "Work Product") shallbe exclusively owned by Staples, including, without limitation,allrights under any applicable copyrights, patents, trade . secats, and other intellectualproperty rights.Vendor hereby assigns to Staples allright, and title, interest in and to all sucli Work Product (other than Vendor Property as defined below), including, without limitation,allrights under any applicable copyrights, patents, trade secrets,and other intellectualproperty Staples' rights.From tinfe totime upon request, Vendor and itspersonnel shallconfirm such assignments by execution at+d deliveryofsuch writteninstruments as Staples may request. (b) . Vendor Ownership. Notwithstanding the foregoing, Vendor shall retain allownership rightsto itstrademarks and toany commercially available products of Vendor developed independently of thisAgreement thatare provided toStaples ("Vendor Property"). Vendor Know-How. Notwithstanding Staples? ownership of the Work Product (other (c) than Vendor Property), Vendor shallbe free touse inother engagements itsgeneral know-how, skills, and whethei· or gained under so as it acquires and applies such expertise, prebexisting thisAgreement, long information without disclosure of any Proprietary Information of Staples.Vendor shallnot in any event Staples' provide the specificWork Product provided to Staples toany third party without prior written Staples' consent, which may be withheld in sole discretion. In addition, thisAgreement does not grant Staples' Vendor any licenses under any of patents,trade secrets orcopyrights. Staples' (d) Materials. If Staples provides to Vendor any tools,equipment, soAware, lists, contacts files, or othermaterials of any kind that are owned by Staples or any third party (collectively referred to as "Staples Provided Materials"), Staples grants to Vendor a non-exclusive, non- limited, transferablelicense to use such Staples Provided Materials solelyin connection with the performance of itsobligationsunder the SOW towhich they relateand solelyfor the term ofsuch SOW. Vendor agrees to abideby any and alllicense requirements and instructions of Staples related to such Staples Provided Materials. Vendor shallnot acquire any right,titleor interesttothe Staples Provided Materials by virtue of thisAgreement, other than the limited license expressly granted to Vendor. Vendor shall not allow access to such Staples Provided Materials to any third party (other than permitted subcontractors as provided in Section 12(b)).Upon the expiration ortermination ofthis Agreement or relevant SOW, as the case may be (orearlier upon therequest of Staples),Vendor shallreturn the Staples Provided Materials to Staples in substantiallythe same condition as provided toVendor, normal wear and tearexcepted, and shallnot retainany copy thereof.With respect tosoftware owned or licensed by Staplesand provided to Vendor for purposes of performing the Services, Vendor shall not copy, reproduce, modify, adapt, translate or createany derivativeworks from such soAware (unlessspecifically authorized by Staples as part of the Services), or disassemble, decompile, reverse engineer or make any other attempt by any means to discover or obtain the souree code of such soAware (ifsuch sofhvare is provided and only intended to be used inobject code format). (e) Iniunctive Relief. Vendor acknowledges that for damages for any remedy money any violation ofthis Section shall be inadequate and Staples may suffer immediate and irreparable damage through any breach or threatened breach. Accordingly, Staples may, in addition to all other legal remedies, specifically enforce this Section and seek injunctive relief to prevent threatened or any continuing breach without requirement ofnotice or of bond. posting 3 FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 7. INDEMNIFICATION. Indemnification. Each (an "Indemnifying Party") shall defend at itsown expense (a) party the other the other'sdirectors, officers,employees, agents, and Affiliates (as defined in party including Section (collectively,the "Indemnified Party"),from and against any and all thirdparty 15(a) below) demands, suitsor actions resulting from, arisingout of orrelating to the Indemnifying Party's claims, itsemployees and anyone actingon itsbehalf) (i)allegedor actual negligent actsor omissions, (including willfni misconduct or fmud in connection with this Agreement, (ii)alleged or actual breach of this alleged or actual violation of any statute,law, ordinance or regulation, or (iv) with Agreement; (iii) respect to Vendor as the Indemnifring Party any alleged or actualinfringement of any patent, copyright, trademark, trade secret or other intellectualproperty or other rights of a third party arising out of the Services orWork Product (collectively,an "Indemnifiable Claim"). With respect toeach Indemnifiable Claim, theIndemnifying shallindemnify and hold harmless the Indemnified Party fNm and against Party and alldamages, judgments, awards, expenses,·and costs that are awarded and payable to the third any a court of competent jurisdiction or that are payable pursuant to a settlement made by the party by Indemnifying Party. Staples' (b) Correction ofImpeded Use. If continued use of any Work Product becomes or Staples' may become impeded in any way due to an actual or anticipatedIndemnifiable Claim, then at request and option Vendor shallat itsexpense either(i) obtain forStaples the rightto continue using the Work Product, (ii)replace or modify theWork Product so thatitis no longer subject to such claim, and continues to perform in a functionally equivalent manner in compliance with any existingspecifications, or if (iii) neither of the foregoing options iscommercially practicable,refund to Staples allamounts paid by Staples for the Work Product in which case Staplesmay in itsdiscretion immediately terminate this Agreement or therelevant SOW. (c) Procedures. The Indeninified Party shall give the Indemnifying Party prompt written notice of any Indemnifiable Claim. Such notice shallnot diminish the Indemnifying Party's indemnity obligations hereunder unless and only to the extent that the Indemnifying Party is materially and adversely affected by the Indemnified Party'sfailure ordelay to give notice.The Indemnifying Party shall control the defense or settlement of any Indemnifiable Claim. The Indemnified Party shall reasonably cooperate (atthe Indemnifying Party's expense) with the Indemnifying Party in thedefense ofsuch claim. Any settlement by the Indemnifying Party must be approved by the Indemnified Party, with such approval not tobe unreasonably withheld (except that any settlement requiring theIndemnified Party to make any admission of shall liability be subjectto the Indemnified Party'sapproval initssole discretion). The Indemnified Party also has theright to retainitsown counsel at itsown expense in connection with such claim. If the Indemnifying Party has been advised by thewritten opinion of counsel to eitherparty that the use of the same counsel to represent both partieswould present a conflictof interest,then the Indemnified Party may select itsown counsel and all costs of the.defense shall be borne by the Indemnifying Party. 8. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER POR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, MULTIPLE, OR PUNITIVE DAMAOES OF ANY KIND, INCLUDINO, WITHOUT InflTATION, LOST PROPITS, EVEN IF ADVISED OP THE POSS]BILITY THEREOF. THE POREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO AMOUNTS PAYABLE BY A PARTY PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, BUT SHALL APPLY IN ALL OTHER INSTANCES REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT. 1 4 FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 9. TERMINATION. (a) Termination for Breac|t.If a partybreaches thisAgreement, including document that any thisAgreement references as being attached hereto or incorporated herein reference, the other by party shall have the right toterminate thisAgreement by providing written noticeof termination, ifthe breach has not been cured within 30 days following receipt of written notice of the breach. The non-breaching party shallnot be obligated to pay for thebreaching party's time orresources to cure any breach. (b) Termination by Staples. Inaddition to any other termination rights,Staples shallhave the right inits discretionto terminate thisAgreement or any SOW under this Agreement, for any reason or for no reason, upon 30 days priorwritten notice toVendor. (c) Survival. The following provisions shall survive any expimtion or termination of this Agreement: Section 3 (Payment Terms and Invoicing), Section 4 (Confidential Information), Section 5 (Vendor Representations), Section 6 (Ownership), Section 7 (Indemnification), Section 8 (Limitation of Liability),Section 9 (Termination), Section 10 (Insurance) (until expiration or termination of all Statements of Work hereunder), Section 11 (Independent Contractor), Section 12 (Vendor Personnel), Section 13 (Notices), Section 14 (Force Majeure), and Section 15 (General Terms). 10. INSURANCE. Priorto the startof any Services, Vendor shallat itsown expense procure and shallmaintain during the Term of this Agreement the minimum insurance covering itsactivities hereunder as set forthon Exhibit A (the "Fequired Insurance"). Within 15 days after execution of this Agreement, Vendor shalldeliver to Staples certificates of insurance made out by the applicable insurer(s) or theirauthorized agents with respectto the Required Insuance and for any material policy amendments ("Insurance Certificates").Vendor shallcomply with allwarranties, declarations and conditions contained in each policy. Each policy shall provide for 30 days prior written notice to be given by the insurer to Staples ifthere is any termination, non-renewal or cancellation, or any material change in coverage or deductible amounts. All Required Insurance shall (i)provide primary coverage and not call upon any other insurance procured by otherparties fordefense, payment.oncontribution, and (ii)be provided on an occurrence rather than a claims made basis.If any Required Insurance is available only on a claims-made basis, then the dates of coverage (including the retroactivedate) and the time period within which any claim can be filedshall continue during the Term of thisAgreement and fora period of 3 years thereafter and shall be stated on the Insurance Certificate, and Vendor shallnot permit any gaps in coverage to occur. All Required Insurance shallbe carried with responsible insurance companies of recognized standing which are authorized to do business inthe state inwhich the Services are rendered and are rated A VB or betterby A.M. Best. IfVendor failsto procure or maintain the Required Insurance, Staples shall have theright, but not the obligation, toeffect such insurance atVendor's expense. Without limiting the foregoing, Vendor shall indemnify and hold harmless Staples against allliabilityand loss in connection with Vendor's failureto comply with the provisions of thisSection. The RequiredInsurance, however, in no manner relieves or releases Vendor, itsagents, subcontractors, and invitees from, or limits their liabilityas to, any and allobligations assumed or risksindemnified against in thisAgreement. The . Insurance Certificateshall statethat Staples, Inc. and Its Affiliatesare included as additional insureds ATIMA (As Their InterestsMay Appear). 11. INDEPENDENT CONTRACTOR. Each of thepartiesisan independent contractorand shallnot be considered to be an agent, distributoror representativeof the other.Neither party shallact or represent itself, directly orby implication, asan agent of theother or inany manner assume or createany obligation on behalf of,or in the name of, the other.All personnel supplied or used by Vendor shallbe deemed employees, agents or subcontractors of Vendor and shallnot be considered employees, agents or subcontractors of Staples for any purpose whatsoever. Vendor shallassign only Vendor personnel or permitted subcontractors who are legallyeligible to work in the location in which Services are to be 5 FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 performed those personnel or permitted subcontractors. Vendor assumes fullresponsibility for the by actions of all such personnel and permitted subcontractors while performing Services under this Agreement and forthe payment of theircompensation (including, if applicable,withholding of income workers' taxes and the payment and withholding of social security and other applicable taxes), compensation, disabilitybenefits and the liketo the extentapplicable. Vendor shalldefend, indemnify and hold harmless Staples againstallliabilityand loss inconnection with, and shallassume full responsibility payment of allfederal,stateand local taxes orcontributions imposed or required under unemployment for, insurance, socialsecurity and income tax laws and allother laws applicable to Vendor or itsemployees or permitted subcontractors engaged in performance of thisAgreement. 12. VENDOR PERSONNEL. (a) On-Site Services. If any Vendor personnel (including employees or permitted Staples' Staples' subcontractors) are on premises, Vendor shallcause such persons tocomply with allof rules, regulations and policies regarding the workplace as well as applicable·security procedures and fitnessfor duty requirements, including, without limitation, itspolicy on drugs and alcohol (collectively Staples' "Workplace Rules"). Staples may immediately remove any Vendor personnel from premises for Staples' securityreasons or fornoncompliance with Workplace Rules. Vendor agrees that any equipment Staples' or personal property brought onto premises during any such visitshallbe at Vendor's sole risk and Staples shall not be responsible for any lossor damage resulting to such equipment or personal property. Staples may request the replacement of any Vendor personnel that Staples reasonably determines is not satisfactorilyperforming the Services (including, without limitation, for reasons of interpersonalskills)and Vendor shalluse commercially reasonable effortsto comply with such request. (b) Subcontractors. Without limiting Section 12(a) hereof, any use by Vendor of any subcontractors shall be subject to the following: (i) Vendor shall provide notice specifying the subcontractor's name and company (where applicable) prior to such subcontractor performing any Services and Staples reserves the right to exclude any such subcontractor from performing Services (Staples' approval to be in writing or by email); (i0 each approved subcontractor shall be bound by Staples' Staples' writtenobligations thatare at leastas protectiveof business, Proprietary Inforrnation and any other materials provided by Staples as the terms of thisAgreement and the NDA; and Vendor (iii) shallremain fully responsible toStaples for thecomplete performance of allServices and shallbe liable for any subcontractor'snoncompliance with any terms of thisAgreement or theNDA. 13, NOTICES. Except as otherwise expressly provided in this Agreement or a SOW, all notices or demands required or permittedpursuant to thisAgreement shallbe in writing,and shall be sent (a) by courier or in person with signed receipt,(b) by nationally recognized overnight delivery service, prepaid, with signature required or (c) by fax ifpromptly confirmed by copy sent pursuant toany ofthe foregoing methods, and in each case shall be sent to the other party at itsaddress ·set forthbelow or to such other addresses as eitherparty may designate from time to time by notice to the other party in accordance with thisSection. Notices shallbe deemed received upon actualreceipt orrefusal of delivery. 14. FORCE MAJEURE. Except for payment obligations, neither party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control that arenot due tothe negligence or misconduct of the party claiming relief under this Section, including, without limitation,fireor other casualty,act of God, war, terrorism,or otherviolence, any law, order or requirement of any govemmental agency or authority or other causes beyond the reasonable control of such party, provided that such party has informed the other party of such force majeure event promptly uport the occurrence thereof (including a reasonable estimate of the additional time required for perfonnance tothe extent determinable) and such party uses reasonable commercial efforts toeffect the required performance as soon as reasonably practicable. 6 FILED: NASSAU COUNTY CLERK 01/09/2023 10:15 PM INDEX NO. 611420/2021 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/09/2023 15. GENERAL TERMS. (a) Time of the Esseppe. Time isof the essence with respect to