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Printing Services Agreement

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PRINTING SERVICES AGREEMENT


This Agreement ("Agreement") is made as of July 12, 1996 between Cunningham Graphics, Inc., ("Cunningham") a New Jersey corporation, with its principal place of business at 629 Grove Street, Jersey City, New Jersey, 07306, and Goldman, Sachs & Co. ("Goldman Sachs") a New York limited partnership with its principal place of business at 85 Broad Street, New York, New York 10004.


WHEREAS, Goldman Sachs wishes to appoint Cunningham to supply the services described herein and further listed in Schedule A, and any other services added thereto by agreement between the parties (the "Services"); and


WHEREAS, Cunningham is willing and able to supply the Services on the terms and conditions set out below.


NOW THEREFORE, the parties hereto agree as follows:


Section 1. DEFINITIONS


1.1 In this Agreement, the following words and expressions shall have the meanings set out below:


1.1.1 "Affiliates" shall mean all entities which are controlling,
controlled by or under common control with Goldman, Sachs & Co.,
wheresoever in the world located.


1.1.2 "Commencement Date" shall mean July 15, 1996.


1.1.3 "Confidential Information"


(a) shall mean, with respect to Goldman Sachs information, any
trade secrets or other proprietary, confidential or
non-public information of Goldman Sachs or its clients or
third parties to whom Goldman Sachs owes a duty of
confidentiality and any other information which Cunningham
knows or ought reasonably to know to be proprietary or
confidential; in addition to the foregoing, all materials
provided to Cunningham by any means for copying or
fulfillment services shall be deemed Confidential
Information; and


(b) shall mean, with respect to Cunningham information, the
terms of this Agreement and all non-public information
regarding Cunningham's business and which Cunningham has
marked as


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confidential.


1.1.4 "Confirms or Client Statements" shall mean those documents
printed by Cunningham which include account and trade information
for clients of Goldman Sachs, which information is transmitted to
Cunningham via connections to Goldman Sachs' mainframe computers.


1.1.5 "Material Breach" shall mean, with respect to Cunningham,
documented material inconsistences in performance, including
failure to meet the Service Criteria, as well as material failure
to comply with any material term of this Agreement; and shall
mean, with respect to Goldman Sachs, material failure to comply
with any material term of this Agreement.


1.1.6 "Minimum Commitments" shall mean the level of printing services
obtained from Cunningham as further described in Schedule A.


1.1.7 "Operating Hours" shall mean the hours specified in Schedule A.


1.1.8 "Personnel" shall mean those individuals assigned by Cunningham
to perform Services related to Confirms or Client Statements at
the Print Shop, as further described in Schedule B.


1.1.9 "Print Shop" shall mean a section of the 8th floor, 111 8th
Avenue, New York, N.Y. as detailed in the Sublease.


1.1.10 "Service Credits" shall mean the adjustments made to the fees
otherwise due to Cunningham in the amounts stated and upon the
occurrence of the events described in Schedule A.


1.1.11 "Service Criteria" shall mean the detailed specifications
included in Schedule A.


1.1.12 "Sales Agreement" shall mean the Asset Sales Agreement executed
by the parties contemporaneously with this Agreement, and
addressing the sale of certain materials by Goldman Sachs to
Cunningham.


1.1.13 "Sublease" shall mean the Agreement of Sublease executed by the
parties contemporaneosously with this Agreement, relating to the
Print Shop.


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1.1.14 "Term" shall mean the period from and including the Commencement
Date to and including and will continue
thereafter on a year to year basis; provided, that Cunningham
shall have given Goldman Sachs a minimum of 90 days notice of
impending renewal together with the proposed charges for the
renewal period and Goldman Sachs shall have 60 days from receipt
of such notice to give Cunningham notice of termination.


Section 2. TERMS OF AGREEMENT


2.1 Goldman Sachs hereby appoints Cunningham, with effect from the Commencement Date, to supply the Services to Goldman Sachs, and Cunningham hereby accepts such appointment on the terms and conditions set forth below.


2.2 The terms and conditions set forth below are the sole terms on which Goldman Sachs shall purchase the Services from Cunningham and shall operate and prevail to the entire exclusion of any terms set out on any documentation used or presented by Cunningham or otherwise existing. No other express terms, written or oral, shall be incorporated into the Agreement.


2.3 No alterations to any of the requirements indicated in Schedule A shall be made except by agreement in writing between the parties and provided that in the event that any alteration involves either an increase or a decrease in the level of Services required by Goldman Sachs, Cunningham and Goldman Sachs shall agree on any corresponding change in the pricing information contained in Schedule D.


Section 3. CUNNINGHAM'S OBLIGATIONS


3.1 Cunningham shall from the Commencement Date and throughout the Term provide the Services in accordance with this Agreement and the Service Criteria.


3.2 Cunningham shall perform the Services at the location and with the resources of its choosing. Notwithstanding the foregoing, in the absence of written approval to the contrary by Goldman Sachs, Confirms or Client Statements may only be printed at the Print Shop, and Cunningham shall not use the Print Shop for purposes of printing similar materials of any other party without the express written approval of Goldman Sachs.


3.3 Cunningham shall be responsible for providing any and all supplies required to perform the Services, with the exception of those listed in Schedule C.


3.4 Cunningham shall insure the necessary level of staffing to provide the Services in accordance with the Service Criteria.


Confidential treatment requested-portions filed separately with the Commission.


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3.5 Cunningham shall conduct a background check of all Personnel at its own expense, and shall ensure that all Personnel have appropriate backgrounds. The background check shall include an interview, check of identification papers, and telephone calls to the individual's last residence and last place of employment to verify same. Such verification may be established by "Equifax" or another equivalent security firm acceptable to Goldman Sachs.


3.6 Cunningham shall obtain Goldman Sachs' prior approval before assigning any individual to perform the Services assigned to the Personnel. Thereafter, Cunningham shall act promptly to replace any of the Personnel deemed by Goldman Sachs to be unsuitable for any reason. A list of the Personnel shall be attached hereto as Schedule B, and revisions to the list as may be required to keep it current shall be provided by Cunningham.


Section 4. GOLDMAN SACHS' OBLIGATIONS


4.1 Goldman Sachs shall provide Cunningham with material to be printed, fulfilled, or otherwise produced in a timely manner. Such material shall be delivered in hard copy, electronic format, on disk, or as otherwise agreed by the parties. Goldman Sachs shall also provide the paper to be used for printing of Confirms or Client Statements.


4.2 Goldman Sachs shall, at its election and in addition to the check conducted by Cunningham, conduct a background check of the Personnel, including a court inquiry credit check and fingerprinting, drug screen or other checking or testing in connection with the performance of Services under this Agreement. Cunningham agrees to indemnify Goldman Sachs, its partners, employees and agents against all liability, damage, loss, claims, demands and actions arising from such checking or testing and the use and reporting of the results thereof.


4.3 Goldman Sachs shall provide the telecommunications services described in Schedule C which shall enable electronic communications between Goldman Sachs and Cunningham.


4.4 Goldman Sachs shall provide the printing supplies specified in Schedule C.


Section 5. CHARGES


The Services shall be provided by Cunningham to Goldman Sachs at the prices set forth in Schedule D, and, except as provided therein, such prices shall be fixed for the Term.


Section 6. PAYMENT


6.1 Cunningham will submit weekly invoices in arrears


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throughout the Term in accordance with the prices contained in Schedule D, and in the format required by Goldman Sachs, the first such invoice to be issued in respect of the calendar month which includes the Commencement Date. All non-disputed monies shall be paid within ten (10) days of receipt of the relevant invoice. The parties will use their best efforts to resolve any disputed invoices within thirty (30) days. Goldman Sachs shall pre-pay postage as invoiced by Cunningham.


6.2 Any sales, retailer's, occupation, service occupation, value added, use or other similar tax imposed on the transactions contemplated by this Agreement, excluding taxes based on the net income of Cunningham, will be paid by Goldman Sachs. A charge for any such taxes will be included on Cunningham's invoices. Cunningham shall cooperate with Goldman Sachs' lawful efforts to minimize its sales tax liability.


6.3 Goldman Sachs shall off-set against payment owed to Cunningham the amounts owed to Goldman Sachs by Cunningham in relation to the Sales Agreement and the Sublease, as well as the amount due Goldman Sachs from Cunningham as a result of the Service Credits. The amount of the monthly off-set shall be , with regard to the Sales Agreement. The amount of the monthly off-set with regard to the Sublease is for base rent, porter wage and sprinkler, and for monthly utility fees, inclusive of electric, steam and water. Notwithstanding the foregoing, these off-sets may be adjusted to reflect the fees owed in relation to the Sale Agreement and the Sublease, the terms of which govern the parties' obligation thereunder.


6.4 Payment obligations of Goldman Sachs shall also be reduced by the amount of Service Credits owed by Cunningham as described in Schedule A.


Section 7. INSURANCE AND INDEMNITIES


7.1 During the Term of this Agreement, Cunningham and Goldman Sachs each will carry and maintain the following insurance coverage (a) with respect to their respective employees: (i) Workers Compensation Insurance as prescribed by the law of the state or other jurisdiction in which work is to be performed, (ii) Employers Liability Insurance with limits of at least $500,000 per occurrence; and (b) Comprehensive General Liability Insurance, including contractual liability, and Comprehensive Automobile Liability Insurance, if the use of motor vehicles is required, each with combined single limits of at least $1,000,000 per occurrence for bodily injury and property damage, and each of Cunningham and Goldman Sachs will also carry fire, sprinkler leakage and extended coverage insurance, subject to the usual exclusions, limitations and conditions of such policies on all of its property located on the other party's


Confidential treatment requested- portions filed separately with the Commission.


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premises. Each such policy will include provisions generally considered standard for the type of insurance involved, including the loss payable and waiver of subrogation clauses and deductible amounts. Each of Cunningham and Goldman Sachs agree to waive rights of subrogation in advance of the loss against each other.


7.2 Each party will, upon request, furnish the other with a certificate of insurance showing coverage in such amounts with a minimum thirty (30) days notification clause to the other in the event the policies are to be cancelled, renewed or changed. Failure to comply with this Section 7.2 shall be deemed a Material Breach.


7.3 Cunningham agrees to defend, indemnify and hold Goldman Sachs harmless from and against any and all liabilities, damages, costs, losses and expenses, including court costs and reasonable attorneys' fees (collectively "Losses"), which arise out of: (a) the acts or omissions during the Term of this Agreement of Cunningham's employees, resulting in injury or death to persons (including invitees) or damage to or theft of property of Goldman Sachs, and property of third parties located on the premises of Goldman Sachs; and (b) the performance of the Services.


7.4 Goldman Sachs agrees to defend, indemnify and hold Cunningham harmless from and against any and all Losses to the extent arising out of: (a) the acts or omissions during the Term of this Agreement of Goldman Sachs' employees, resulting in injury or death to persons (including invitees) or damage to or theft of property of Cunningham, and property of third parties located on the premises of Cunningham; and (b) the content of material reproduced or otherwise handled by Cunningham at the request of and in accordance with the instructions of Goldman Sachs or its employees, including libel, defamation, invasion of privacy, copyright, trademark or other proprietary rights infringement or unfair competition.


7.5 Cunningham and Goldman Sachs agree to notify the other promptly of any claims or demands for which the other party may be responsible hereunder.


Section 8. CONFIDENTIALITY


8.1 Except as provided in Section 8.2 below, neither party shall use, divulge, communicate or allow to be divulged to any person, without the other party's prior written consent, any Confidential Information which such party may in the performance of this Agreement, and in whatever capacity, have received or obtained.


8.2 Each party shall limit the use of and access to the Confidential Information to those of its employees, servants or agents whose use thereof or access thereto is necessary to effect


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the performance of its obligations under this Agreement.


8.3 Each party shall use all reasonable endeavors to protect the confidentiality of the Confidential Information and to assist the other party in identifying and preventing any unauthorized use or disclosure of any of that Confidential Information.


8.4 Without limitation of the foregoing, each party shall advise the other immediately in the event that it learns or has reason to believe that any person who has had access to the Confidential Information has violated or intends to violate the terms of this Agreement or any related non-disclosure agreement and such party will co-operate with the other in seeking injunctive or other equitable relief in the name of the other party or itself against any such person.


8.5 Upon the termination of this Agreement (or earlier if requested by either party) each party shall at its own cost return to the other all copies of documents, papers or other material which may contain or be derived from the Confidential Information (excluding for purposes of this Section 8.5, this Agreement) which are in its possession or control, together, if requested by such party, with a certificate signed by such party in form and substance satisfactory to the other party, to the effect that all the Confidential Information has been returned.


8.6 Confidential Information shall not include information which is:


8.6.1 in or becomes part of the public domain other than by disclosure
by Cunningham or Goldman Sachs, as appropriate, in violation of
this Agreement;


8.6.2 demonstrably known to Cunningham or Goldman Sachs, as
appropriate, previously, without a duty of confidentiality;


8.6.3 independently developed by Cunningham or Goldman Sachs, as
appropriate, outside of this Agreement;


8.6.4 rightfully obtained by Cunningham or Goldman Sachs, as
appropriate, from third parties without a duty of
confidentiality; or


8.6.5 which is required to be disclosed by law, statute or regulation.


8.7 Cunningham hereby irrevocably assigns to Goldman Sachs, its successors and assigns, and Goldman Sachs shall have, exclusive ownership rights, including, without limitation, all patent, copyright and trade secret rights, with respect to any


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work including, but not limited to, any invention, discoveries, concepts, ideas or information conceived by Cunningham in the course of rendering Services to Goldman Sachs in response to a specific assignment of work, and all documents, data and other information of any kind including, incorporating, based upon or derived from the foregoing, including reports and notes prepared by Cunningham, customized work produced by Cunningham in the course of performing the Services, and such works shall be Confidential Information. Cunningham will cooperate fully with Goldman Sachs to establish, protect or confirm Goldman Sachs' exclusive rights in such work or to enable it to transfer legal title together with any patents that may be issued. A certificate evidencing compliance with this provision shall, if requested, be provided to Goldman Sachs.


8.8 Cunningham will procure that the Personnel will enter into the Non-Disclosure agreement in the form attached as Schedule E.


8.9 Cunningham shall undertake the establishment and maintenance of security procedures to assure that any Confidential Information in its possession shall not be improperly disclosed. Such procedures shall be subject to review by Goldman Sachs upon request.


8.10 It is understood and agreed that in the event of a breach of this Section 8, damages may not be an adequate remedy and each Cunningham and Goldman Sachs, as appropriate, shall be entitled to injunctive relief to restrain any such breach, threatened or actual.


Section 9. NO PROMOTION


9.1 Cunningham agrees that it will not, without the prior written consent of Goldman Sachs in each instance,


9.1.1 use in advertising, publicity, or otherwise the name of Goldman
Sachs, or any Affiliate or any partner or employee of Goldman
Sachs, nor any trade name, trademark, trade device, service mark,
symbol or any abbreviation, contraction or simulation thereof
owned by Goldman Sachs or its affiliates; or


9.1.2 publish alone or in conjunction with any other person any
article, photograph or other illustration relating to Goldman
Sachs or to the Offices or any part thereof; or


9.1.3 represent, directly or indirectly, that any product or any
service provided by Cunningham has been approved or endorsed by
Goldman Sachs. This


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provision shall survive termination of the Agreement.


Section 10. WARRANTIES


10.1 Cunningham represents and warrants that:


10.1.1 it will perform the Services in accordance with the terms and
conditions contained herein, including, without limitation, in
accordance with the Service Criteria;


10.1.2 it will perform the obligations undertaken by Cunningham under
this Agreement in accordance with applicable laws and
regulations;


10.1.3 it will perform the Services in a timely, diligent and
professional manner, by appropriately skilled and qualified
personnel, having due regard to Goldman Sachs' business
operations;


10.1.4 it has all necessary rights, authorizations and/or licenses to
provide the Services to Goldman Sachs under this Agreement;


10.1.5 it is generally aware of the provisions of the copyright laws and
in connection therewith it shall, as soon as is reasonably
practicable, alert the Goldman Sachs Legal Department where it
suspects that any requests, for the copying or production of
works may result in copyright infringement and shall obtain the
permission of appropriate Goldman Sachs management personnel
prior to making any copies or productions of such works.


10.1.6 is shall insure that the Services related to Client Statements and
Confirms are only provided by the Personnel.


10.2 EXCEPT AS SET FORTH IN SECTION 10.1 ABOVE, Cunningham MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.


Section 11. FORCE MAJEURE


11.1 Neither party will be in breach of this Agreement by reason of any delay in the performance or non-performance on its part of its obligations hereunder (and shall not be liable for any costs or damage caused thereby) where the same is occasioned by any circumstance whatsoever beyond its reasonable control.


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11.2 If either pa
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