Deer Creek shall not be obligated to perform any other Optional Services unless checked above. If, during the course of this Agreement, Deer Creek and Clients may mutually agree in writing to additional optional duties, subject to additional charges to Clients.
Collectively, these Standard and Optional Duties represent the services provided under this Agreement.
Compensation
a. As compensation for its administrative duties hereunder, Deer Creek will invoice Clients on an annual basis, and Clients shall pay to Deer Creek its standard fees in advance of services being performed, and on an annual basis while this Agreement is in effect. These fee structure has been provided to Clients, and are subject to change every year. Unless notified of termination of this Agreement in whole or in part as provided in Section X, Deer Creek will auto-debit annual renewal fees to Client’s credit card on file in January of each year this Agreement is in effect. Clients shall be responsible for notifying Deer Creek of any changes to their credit card on file, and Deer Creek may terminate or suspend its services if Clients fail to timely pay Deer Creek for any invoice.
b. The fee structure of Deer Creek for the services provided as part of this Agreement have been separately provided to the Clients in writing by email, letter, or other means. Compensation for extraordinary services requested of Deer Creek beyond those specifically included in this Agreement shall be separately agreed to by Deer Creek and Clients. Deer Creek reserves the right to change its pricing structure for services for subsequent periods, and to provide notice of the changes to Clients in advance by any reasonable manner of notice, including, but not limited to, portal or email.
c. In all events, the Clients shall reimburse Deer Creek for all out-of-pocket expenses properly incurred in connection with the discharge of its duties hereunder, including, but not limited to, postage, filing fees, delivery fees, mileage reimbursement, extraordinary copying charges, costs incurred under Section II.f above, and other necessary costs. These costs will be assessed and billed separately from any standard annual fees. Clients shall directly pay for those costs and reimburse Deer Creek for any costs Deer Creek incurs within fifteen (15) days of receiving an invoice. Deer Creek reserves the right to withhold services until it is paid.
V. Representations and Responsibilities of Members. The Clients, by and through their representative or representatives below, hereby represent, accept, and warrant:
a. The Companies’ Members shall have all the rights and responsibilities of owner/members of the Companies, including, but not limited to, the responsibility to invest capital in the Company or Companies, sufficient for their designated purposes, and payment of all applicable taxes, tariffs, and fees, if any.
b. Clients agree they will not use the Companies or Deer Creek’s services for any unlawful, illegitimate, or fraudulent purpose, and will at all times conform their conduct to all applicable federal, state, and local laws and regulations. Clients further agree that any use of the Mailbox shall be in conformity with all applicable federal, state, and local laws. If Deer Creek receives any reasonably reliable evidence from anyone that Clients or Companies have in any way violated this sub-paragraph, Deer Creek may at its option, with notice to Clients, immediately and entirely terminate its relationship with Clients. If so, all of Deer Creek’s duties under this and any collateral agreements shall end, and Clients shall forfeit all compensation paid in advance to Deer Creek. Violations in this subparagraph include, but are not limited to, any and all types of written or oral fraud, misrepresentation, forgery, theft, or other violation of law. Any evidence of any such activities by Clients will be disclosed by Deer Creek to law enforcement authorities, and doing so shall not be deemed a breach of any confidentiality obligations of Deer Creek to Clients.
c. Clients have reviewed, and hereby approve, the terms and conditions of the Articles of Organization and the Operating Agreement, if any, for the Companies.
d. It is understood that Deer Creek is not an attorney, accountant, or financial advisor, and is not acting as Clients’ attorney-at-law, accountant, financial advisor, or other fiduciary, in any respect. Clients are solely responsible for obtaining such professional consultation and advice with respect to the transactions contemplated in this document. Deer Creek has not, and cannot, advise Clients about the impact of the laws of any state or nation concerning the property and activities of the Companies. Deer Creek cannot guarantee any particular legal or tax outcome to Clients from its services under this Agreement. Clients shall be responsible for ensuring they understand and comply with any applicable state or federal laws.
e. That Deer Creek shall have no other duties or responsibilities whatsoever, other than those described in this Agreement.
f. Absent written instructions from Clients, Deer Creek shall not sell, transfer, assign, or register any vehicles or other property subject to this Agreement to any other person or entity other than the Company created pursuant to this Agreement.
g. At least one Member of the Companies must sign this Agreement. Clients represent that this signing Member is authorized to sign this Agreement on behalf of the Companies, binding the Companies and the Member(s). All members and managers of the Companies are bound by this Agreement, jointly and severally, to the fullest extent possible, whether or not they sign it.
h. It is understood that Deer Creek by default will only take Instructions (defined below) from a Member or other authorized representative of the Companies. Clients shall inform Deer Creek in writing of anyone besides a Member who is authorized to provide Instructions to Deer Creek for the Company or Parent Company, and any limits on their authority. Further, Deer Creek will not honor any request for formal amendments to the Companies, changes in their membership or management, or their termination, unless authorized in writing by all members of the Company or Parent Company, whichever is affected. Any changes to the Company or Parent Company by involuntary action (death, court order, etc.) must be validated by written documentation of a Member or authorized representative. Deer Creek may rely on Instructions from any Member or authorized representative, and is not responsible if an authorized representative (or someone reasonably purporting to be authorized) gives Instructions without the consent or authority of other Members.
Non-Exclusivity. Deer Creek is not a fiduciary to Clients, and no fiduciary duties shall be implied from this Agreement or from Deer Creek’s performance of services. It may act as administrator or agent to other entities, persons, or clients while this Agreement is in effect. Deer Creek shall not be required to share information or disclose to Clients any fact or thing which may come to its knowledge, except those things necessary to carry out its explicit duties in this Agreement.
VII. Instructions.
"Instructions” include any written, facsimiled or emailed instructions given to Deer Creek in a readable form with respect to any of the matters referred to in this Agreement, which are signed or purported to be signed by one or more person(s) that reasonably appear to be authorized to give the Instruction in question. Deer Creek may also act pursuant to and rely on Instructions by telephone given or purported to be given by designated persons, and such telephonic instructions shall be deemed to be Instructions. Where Instructions are given by telephone, written confirmation thereof shall be sent to Deer Creek as soon as practicable thereafter by the person making the Instruction; provided however, that Deer Creek may still act on telephonic Instructions regardless of that written confirmation. Different persons may be authorized to give Instructions for different purposes, and such persons may also include officers of entities other than the Company or Parent Company, provided their doing so is authorized by the Company or Parent Company and that authorization is communicated to Deer Creek in writing. A copy of a resolution of the manager(s) or member(s) of the Company or Parent Company, as the case may be, may be received and accepted by Deer Creek as conclusive evidence of the authority of any such person to act and may be considered as in full force and effect until receipt of written notice to the contrary.
b. When acting pursuant to Instructions given by Clients, Deer Creek shall not be under any duty to make any inquiry as to the genuineness or authenticity of any such Instructions so long as such Instructions reasonably appear to be genuine and authentic. Deer Creek shall not be required to perform any Instruction it deems, in its discretion, to be unlawful, inappropriate, or that does not conform with Section VII(a) above.
c. In performing its duties under paragraph II.d. above, if Clients wish to make any change of registered agent to any third party, Clients must notify Deer Creek in advance, in writing, of making that change. Otherwise, Deer Creek shall presume the change was unintended and will automatically change the registered agent back to Deer Creek (or Deer Creek’s previously appointed registered agent if different than Deer Creek). This is because changing the registered agent may affect Deer Creek’s ability to provide services under this Agreement. If Clients wish to change the registered agent to an agent other than the agent selected by Deer Creek, Deer Creek, in its discretion, may terminate this Agreement if that change affects its ability to provide continued services.
VIII. Liability and Indemnity. Deer Creek shall not be liable to any of the Clients for any loss suffered by them in connection with the subject matter of this Agreement, unless such loss arises from the fraud, willful misconduct, or negligence of Deer Creek or its agents, officers, or employees in the discharge of its functions under this Agreement.
TO THE FULLEST EXTENT PERMITTED BY LAW, DEER CREEK SHALL NOT BE LIABLE TO CLIENTS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT.
Without prejudice to the foregoing, the Clients shall jointly and severally hold harmless, indemnify, and defend Deer Creek and its agents, officers, owners, associated entities, and employees from and against any and all liabilities, obligations, losses, damages, actions, proceedings, suits, costs and expenses (including without limitation reasonable attorney’s fees and legal expenses), claims, and demands (“Liabilities”) which may be suffered or incurred by or asserted against Deer Creek or its agents, officers, owners, associated entities, and employees, arising out of or in connection with the performance of its duties under this Agreement. Deer Creek shall inform the Clients as soon as reasonably practicable of all claims, letters, summonses, demands, or documents which it receives from third parties with respect to the Company or Parent Company. If any action or claim shall be brought against Deer Creek, its agents, officers owners, associated entities, or employees in respect of which it appears that an indemnity or defense may be sought from the Clients pursuant to this provision, Deer Creek, its agents, officers, associated entities, or employees, as the case may be, shall as soon as reasonably practicable provide notice to Clients of such action or claim.
IX. Notice. Any notice to be delivered hereunder shall be sufficiently served if, in the case of written documents, it is delivered by hand or sent by registered mail addressed to the other party concerned at its registered or principal office currently on file with the other party, or in the case of electronic documents, it is sent or otherwise delivered via the internet or email to the place and in the manner last authorized by the other party. The Parties shall be responsible for promptly updating each other of any change in address.
Term of Agreement. The term of this Agreement begins on the Effective Date (defined below) and continues for one year. The term of this Agreement SHALL AUTOMATICALLY RENEW FOR SUBSEQUENT ONE (1) YEAR PERIODS WITH AUTO-DEBITING OF ANNUAL RENEWAL FEES ON OR ABOUT JANUARY 1ST OF EACH NEW YEAR, unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Term. In any event, this contract may be terminated upon thirty (30) days’ notice of termination given by either party to the other. Client may give Deer Creek notice of cancellation by completing a termination request form with Deer Creek. The renewal amount shall be auto-debited at the standard annual charge, which is subject to change pursuant to paragraph IV.a. By signing below, Clients acknowledge and agree that the Agreement may be automatically renewed. In the case of a material breach under this Agreement, either party may terminate the Agreement immediately upon written notice to the other party.
If Clients timely provide a termination request form, then Deer Creek will, with Clients’ consent, file Articles of Termination for an additional fee to terminate the Companies. However, note that if Clients do not authorize Deer Creek to file the Articles of Termination, the Companies may remain open until involuntarily dissolved by the State of Alaska and the State of New Mexico. Upon termination, Clients shall be responsible for assuring that the Companies are properly wound up and dissolved, unless Clients authorize Deer Creek to file Articles of Termination.
XI. Return or Destruction of File. Upon conclusion of the parties relationship under this Agreement it is understood that Deer Creek shall be entitled to do one or more of the following: (1) to destroy all paper, and/or electronic records of the Companies, or (2) upon written authorization from the Companies, and at the expense of the Companies, to return all paper documents or copies to the Companies. If either Company or Parent Company fails to make a written election to have documents returned, and to make payment for return, the physical documents are subject to being destroyed thirty (30) days after notice to the Company or Parent Company of termination of the relationship. Deer Creek will store any of Clients’ electronic records for at least three (3) years after termination of the relationship under this Agreement, after which point those electronic records may also be destroyed. Deer Creek may also terminate portal access for Clients ninety (90) days after any of the following events: a) this Agreement is terminated; b) Clients’ invoice remains unpaid; or c) the Company or Parent Company becomes inactive, whichever event occurs first. Deer Creek shall not be liable for any destruction of documents if they are destroyed consistent with this Section.
XII. Assignment. This Agreement may not be assigned by any Client without the prior written consent of Deer Creek, which shall not be unreasonably withheld. Deer Creek shall not be bound by any unauthorized assignment. It is understood that Deer Creek may assign its performance of this Agreement in whole or in part, but that Deer Creek or its assignee shall not be excused from its duties under this Agreement by that assignment. In the event Deer Creek ever makes an assignment, it shall notify Clients in writing.
XIII. Governing Law, Disputes, and Jurisdiction. This Agreement, and all transactions contemplated by this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of Montana, without regard to its conflict-of-laws rules that would result in the application of the laws of another jurisdiction. Any dispute between the parties that cannot be resolved informally shall first be submitted to mediation. The mediation shall be conducted in Lewis & Clark County, Montana, using a mutually agreed-upon mediator, with the costs of mediation split equally between the parties.
If the dispute cannot be resolved by mediation or either party refuses to mediate within ninety (90) days of a written demand, either party may then submit the matter to binding arbitration in Lewis & Clark County, Montana, pursuant to the Montana Uniform Arbitration Act. BY ENTERING INTO THIS AGREEMENT, THE PARTIES AGREE TO SUBMIT ANY DISPUTES TO BINDING ARBITRATION. The parties may agree to appoint a single arbitrator, or if they cannot agree on a single arbitrator, they may each pick their own arbitrator, and together the two arbitrators will pick a third arbitrator to serve as the chair of the panel. Any arbitrator selected shall provide a neutral arbitrator's disclosure (consistent with Mont. Code Ann. 27-5-116, as may later be amended) and shall have experience in commercial law. The costs of arbitration will be split equally between the parties. In any arbitration or other legal action brought by any party to enforce any of the terms of this Agreement, the prevailing party, as determined by the arbitrator(s) or judge(s), shall be entitled to reimbursement of its reasonable attorney’s fees and arbitration costs from the non-prevailing party.
In the event any provision of this Agreement shall be determined by any arbitrator or court of competent jurisdiction to be invalid, void, or otherwise unenforceable under any applicable federal or state law (including Alaska or New Mexico), the remaining provisions shall remain in full force and effect.
