Preview
FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023
EXHIBIT D
FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023
SERVICE AGREEMENT
This Contract for Services is made effective as of _________________, by and between
_________________ of _________________, _________________, _________________
_________________ (the "Recipient"), and NU Media Holding LLC of 60 W 38th St, 6R, New
York, New York 10018 (the "Provider").
1. DESCRIPTION OF SERVICES. Beginning on _________________, NU Media Holding
LLC will provide to _________________ the following services (collectively, the "Services"):
_________________
2. PAYMENT. Payment shall be made to Provider in regular payments of _________________
per _________________ until termination of this Agreement.
In addition to any other right or remedy provided by law, if _________________ fails to pay for
the Services when due, NU Media Holding LLC has the option to treat such failure to pay as a
material breach of this Contract, and may cancel this Contract and/or seek legal remedies.
3. TERM. This Contract will terminate automatically upon completion by Provider of the
Services required by this Contract.
4. WORK PRODUCT OWNERSHIP. Any copyrightable works, ideas, discoveries,
inventions, patents, products, or other information (collectively the "Work Product") developed
in whole or in part by Provider in connection with the Services will be the exclusive property of
Recipient. Upon request, Provider will execute, within a reasonable period of time, all
documents necessary to confirm or perfect the exclusive ownership of Recipient to the Work
Product.
5. CONFIDENTIALITY. Provider, and its employees, agents, or representatives will not at any
time or in any manner, either directly or indirectly, use for the personal benefit of Provider, or
divulge, disclose, or communicate in any manner, any information that is proprietary to
Recipient. Provider and its employees, agents, and representatives will protect such information
and treat it as strictly confidential. This provision will continue to be effective after the
termination of this Contract. Any oral or written waiver by Recipient of these confidentiality
obligations which allows Provider to disclose Recipient's confidential information to a third
party will be limited to a single occurrence tied to the specific information disclosed to the
specific third party, and the confidentiality clause will continue to be in effect for all other
occurrences.
Upon termination of this Contract, Provider will return to Recipient all records, notes,
documentation and other items that were used, created, or controlled by Provider during the term
of this Contract.
FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023
6. INDEMNIFICATION. Provider agrees to indemnify and hold Recipient harmless from all
claims, losses, expenses, fees including attorney fees, costs, and judgments that may be asserted
against Recipient that result from the acts or omissions of Provider and/or Provider's employees,
agents, or representatives.
7. WARRANTY. Provider shall provide its services and meet its obligations under this Contract
in a timely and workmanlike manner, using knowledge and recommendations for performing the
services which meet generally acceptable standards in Provider's community and region, and will
provide a standard of care equal to, or superior to, care used by service providers similar to
Provider on similar projects.
8. DEFAULT. The occurrence of any of the following shall constitute a material default under
this Contract:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party's property to any levy, seizure, general assignment
for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Services in the time and manner provided for
in this Contract.
9. ATTORNEYS' FEES AND COLLECTION COSTS. If there is dispute relating to any
provisions in this Contract, the prevailing party is entitled to, and the non-prevailing party shall
pay, the costs and expenses incurred by the prevailing party in the dispute, including but not
limited to all out-of-pocket costs of collection, court costs, and reasonable attorney fees and
expenses.
10. REMEDIES. In addition to any and all other rights a party may have available according to
law, if a party defaults by failing to substantially perform any provision, term or condition of this
Contract (including without limitation the failure to make a monetary payment when due), the
other party may terminate the Contract by providing written notice to the defaulting party. This
notice shall describe with sufficient detail the nature of the default. In case of pausing services,
NU Media will continue billing Service Recipient until the last date of the Contract term.
Resumed services can be granted within 12 months from the pausing date and expire after
12 months from the pausing date.
11. FORCE MAJEURE. If performance of this Contract or any obligation under this Contract
is prevented, restricted, or interfered with by causes beyond either party's reasonable control
("Force Majeure"), and if the party unable to carry out its obligations gives the other party
prompt written notice of such event, then the obligations of the party invoking this provision
shall be suspended to the extent necessary by such event. The term Force Majeure shall include,
without limitation, acts of God, plague, epidemic, pandemic, outbreaks of infectious disease or
FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023
any other public health crisis, including quarantine or other employee restrictions, fire,
explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil
authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work
stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable
efforts under the circumstances to avoid or remove such causes of non-performance and shall
proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An
act or omission shall be deemed within the reasonable control of a party if committed, omitted,
or caused by such party, or its employees, officers, agents, or affiliates.
12. DISPUTE RESOLUTION. The parties will attempt to resolve any dispute arising out of or
relating to this Agreement through friendly negotiations amongst the parties. If the matter is not
resolved by negotiation within 30 days, the parties will resolve the dispute using the below
Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be resolved by
binding arbitration under the rules of the American Arbitration Association. The arbitrator's
award will be final, and judgment may be entered upon it by any court having proper
jurisdiction.
13. ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and
there are no other promises or conditions in any other agreement whether oral or written
concerning the subject matter of this Contract. This Contract supersedes any prior written or oral
agreements between the parties.
14. SEVERABILITY. If any provision of this Contract will be held to be invalid or
unenforceable for any reason, the remaining provisions will continue to be valid and enforceable.
If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting
such provision it would become valid and enforceable, then such provision will be deemed to be
written, construed, and enforced as so limited.
15. AMENDMENT. This Contract may be modified or amended in writing by mutual
agreement between the parties, if the writing is signed by the party obligated under the
amendment.
16. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the
State of New York.
17. NOTICE. Any notice or communication required or permitted under this Contract shall be
sufficiently given if delivered in person or by certified mail, return receipt requested, to the
address set forth in the opening paragraph or to such other address as one party may have
furnished to the other in writing.
18. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Contract shall not be construed as a waiver or limitation of that party's right to
subsequently enforce and compel strict compliance with every provision of this Contract.
FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023
19. ATTORNEY'S FEES TO PREVAILING PARTY. In any action arising hereunder or any
separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded
reasonable attorney's fees and costs, both in the trial court and on appeal.
20. CONSTRUCTION AND INTERPRETATION. The rule requiring construction or
interpretation against the drafter is waived. The document shall be deemed as if it were drafted
by both parties in a mutual effort.
21. ASSIGNMENT. Neither party may assign or transfer this Contract without the prior written
consent of the non-assigning party, which approval shall not be unreasonably withheld.
22. CONTRACT RENEWAL. Contract will automatically renew for 3 months without any
written notice 30 days prior to the end date of the contract.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives as of the date first above written.
Service Recipient:
By: ___________________________________ Date: __________________
_________________
Service Provider:
NU Media Holding LLC
By: ___________________________________ Date: __________________
NU Media
FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023
EXHIBIT A: DESCRIPTION OF SERVICES
Preview
FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023 EXHIBIT D FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023 SERVICE AGREEMENT This Contract for Services is made effective as of _________________, by and between _________________ of _________________, _________________, _________________ _________________ (the "Recipient"), and NU Media Holding LLC of 60 W 38th St, 6R, New York, New York 10018 (the "Provider"). 1. DESCRIPTION OF SERVICES. Beginning on _________________, NU Media Holding LLC will provide to _________________ the following services (collectively, the "Services"): _________________ 2. PAYMENT. Payment shall be made to Provider in regular payments of _________________ per _________________ until termination of this Agreement. In addition to any other right or remedy provided by law, if _________________ fails to pay for the Services when due, NU Media Holding LLC has the option to treat such failure to pay as a material breach of this Contract, and may cancel this Contract and/or seek legal remedies. 3. TERM. This Contract will terminate automatically upon completion by Provider of the Services required by this Contract. 4. WORK PRODUCT OWNERSHIP. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the "Work Product") developed in whole or in part by Provider in connection with the Services will be the exclusive property of Recipient. Upon request, Provider will execute, within a reasonable period of time, all documents necessary to confirm or perfect the exclusive ownership of Recipient to the Work Product. 5. CONFIDENTIALITY. Provider, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Provider, or divulge, disclose, or communicate in any manner, any information that is proprietary to Recipient. Provider and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Contract. Any oral or written waiver by Recipient of these confidentiality obligations which allows Provider to disclose Recipient's confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences. Upon termination of this Contract, Provider will return to Recipient all records, notes, documentation and other items that were used, created, or controlled by Provider during the term of this Contract. FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023 6. INDEMNIFICATION. Provider agrees to indemnify and hold Recipient harmless from all claims, losses, expenses, fees including attorney fees, costs, and judgments that may be asserted against Recipient that result from the acts or omissions of Provider and/or Provider's employees, agents, or representatives. 7. WARRANTY. Provider shall provide its services and meet its obligations under this Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Provider's community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Provider on similar projects. 8. DEFAULT. The occurrence of any of the following shall constitute a material default under this Contract: a. The failure to make a required payment when due. b. The insolvency or bankruptcy of either party. c. The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency. d. The failure to make available or deliver the Services in the time and manner provided for in this Contract. 9. ATTORNEYS' FEES AND COLLECTION COSTS. If there is dispute relating to any provisions in this Contract, the prevailing party is entitled to, and the non-prevailing party shall pay, the costs and expenses incurred by the prevailing party in the dispute, including but not limited to all out-of-pocket costs of collection, court costs, and reasonable attorney fees and expenses. 10. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. In case of pausing services, NU Media will continue billing Service Recipient until the last date of the Contract term. Resumed services can be granted within 12 months from the pausing date and expire after 12 months from the pausing date. 11. FORCE MAJEURE. If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, plague, epidemic, pandemic, outbreaks of infectious disease or FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023 any other public health crisis, including quarantine or other employee restrictions, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates. 12. DISPUTE RESOLUTION. The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation within 30 days, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure. Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator's award will be final, and judgment may be entered upon it by any court having proper jurisdiction. 13. ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties. 14. SEVERABILITY. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. 15. AMENDMENT. This Contract may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment. 16. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the State of New York. 17. NOTICE. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing. 18. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Contract. FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023 19. ATTORNEY'S FEES TO PREVAILING PARTY. In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney's fees and costs, both in the trial court and on appeal. 20. CONSTRUCTION AND INTERPRETATION. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort. 21. ASSIGNMENT. Neither party may assign or transfer this Contract without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld. 22. CONTRACT RENEWAL. Contract will automatically renew for 3 months without any written notice 30 days prior to the end date of the contract. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first above written. Service Recipient: By: ___________________________________ Date: __________________ _________________ Service Provider: NU Media Holding LLC By: ___________________________________ Date: __________________ NU Media FILED: NEW YORK COUNTY CLERK 02/09/2023 06:34 PM INDEX NO. 650788/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/09/2023 EXHIBIT A: DESCRIPTION OF SERVICES