1. 1. SDG’s Responsibilities.

    SDG shall perform the Services utilizing the standard of care normally exercised by professional consulting firms in performing comparable services under similar conditions.

  2. 2. CLIENT’s Responsibilities.

    Upon request, CLIENT shall provide to SDG such information as may be reasonably available to CLIENT and as may be reasonably required by SDG to properly perform the Services. CLIENT shall provide site access at such times as may reasonably be required by SDG and shall make timely payments in accordance with the terms of this Agreement.

  3. 3. Confidential Information.

    “Confidential Information” shall mean all information provided by CLIENT to SDG, whether orally or in writing, relating to the Services or this Agreement. Confidential Information may include, without limitation, information about products, services, technology, software, employees, business practices, business methods, business arrangements and explicitly includes any maps, diagrams, charts and other information furnished regarding its real property or rail network. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) was in SDG’s possession or was known to SDG prior to receipt hereunder; (b) was independently developed by SDG without the utilization of such Confidential Information; (c) is or becomes public knowledge other than as a result of action of SDG; (d) is or becomes available to SDG from a source, other than CLIENT, that does not owe a duty of confidentiality to CLIENT and is not otherwise prohibited by law or by agreement from making such disclosure; or (e) is required to be disclosed pursuant to applicable law or government regulation or an enforceable written order by a court of competent jurisdiction, provided that CLIENT is given prompt notice of such law, regulation or judicial action and is afforded an opportunity to intervene and prevent or limit the disclosure by SDG.

    SDG shall protect the confidentiality of the Confidential Information with the same degree of care it uses to handle its own confidential information; provided that in no event shall less than a reasonable standard of care be used. SDG shall not disclose or caused to be disclosed any Confidential Information, in whole or in part, to any third party without CLIENT’s prior written approval. Notwithstanding the foregoing, SDG may disclose the Confidential Information to its officers, employees, agents and subSDGs who need to know such Confidential Information in order for SDG to perform its obligations hereunder; provided that such persons are advised of the confidential nature of the Confidential Information. SDG shall be responsible for any violation of these confidentiality obligations by any such officer, employee, agent or subSDG, even if such violation occurs after such person’s relationship with SDG has been terminated. Without CLIENT’s prior written consent, SDG shall not use or reproduce the Confidential Information, in whole or in part, other than in furtherance of its obligations hereunder. Upon CLIENT’s written request, SDG shall return or cause to be returned to CLIENT all tangible items representing the Confidential Information and all copies thereof that remain in SDG’s possession, along with a written document signed by an authorized representative of SDG certifying that SDG has not retained any Confidential Information.

    This Section 3 shall expire upon the later of the termination of this Agreement or five years from the date hereof.

  4. 4. Developments and Deliverables.

    SDG acknowledges that the Services constitute "work made for hire" as defined by the copyright laws of the United States. Any and all useful ideas of any description, whether or not patentable, that SDG conceives or develops, in whole or in part, either alone or jointly with others during or within one year following termination of this Agreement and which either (a) result from or relate to the Services or (b) are developed using Confidential Information or equipment, facilities or resources of CLIENT (the “Developments”), will be the sole property of CLIENT. CLIENT is and shall be the sole owner of all patents, copyrights and other intellectual property or other rights with respect to such Developments, and SDG hereby transfers and assigns to CLIENT all such rights that SDG may have or may acquire in such Developments and waives any moral or other special rights that SDG may have or acquire therein. SDG shall execute and deliver to CLIENT any documents and take any actions that may be required to effect and confirm such transfer, assignment and waiver, and shall assist CLIENT, at CLIENT’s expense, in obtaining and enforcing any rights in the Developments. SDG shall promptly disclose to CLIENT any Developments that are or may be subject to this paragraph. Upon payment in full for the Services, any reports, plans, designs, specifications and any other documents developed under this Agreement (“Deliverables”) shall be the property of CLIENT and shall constitute both Developments and Confidential Information hereunder.

  5. 5. Payment Terms.

    Except as otherwise provided, SDG shall submit invoices on a monthly basis. CLIENT shall pay all undisputed invoices within thirty (30) days of receipt.

  6. 6. Indemnification.

    SDG shall indemnify, defend and hold harmless CLIENT; CLIENT’s affiliated and subsidiary companies (including Conrail Inc. and its affiliated and subsidiary companies); and its and their officers, employees and agents (the “Indemnified Parties”) from and against any and all claims, fines, penalties, demands, suits, liability, damages, losses, costs (including, but not limited to, reasonable attorneys’ fees) and expenses arising from or in connection with:

    • (a)

      (i) any alleged loss of life of or personal injury to the officers, employees or agents of SDG or the damage to or loss of the property of SDG, its officers, employees or agents, arising from, incident to or occurring in connection with the performance by SDG of this Agreement or the presence of the officers, employees or agents of SDG on the property of CLIENT; provided, however, the foregoing indemnification shall not extend to loss of life, personal injury or property loss or damage caused solely by the negligence of CLIENT.

    • (ii) except with respect to persons and property covered by subsection (a)(i) above, any alleged loss of life of or personal injury to any person or the loss of or damage to any property arising from, incident to or in connection with the negligent acts or omissions or willful misconduct of SDG; except to the extent that the property loss or damage or personal injury or death was caused by the negligence of CLIENT.

    • (b)

      any alleged infringement of any third party’s intellectual property rights from the use of any of the Deliverables or any materials or equipment furnished in connection with the Services or this Agreement; provided, however, the foregoing indemnification shall not extend to any infringement caused by CLIENT’s specific written direction to SDG to use an infringing method or process and

    • (c)

      any alleged violation of any law, statute, code, ordinance or regulation of the United States or of any state, county or municipal government (including, without limitation, those relating to air, water, noise, solid waste and other forms of environmental protection, contamination or pollution or to discrimination on any basis) that results in whole or in part, directly or indirectly, from the activities of SDG or its officers, agents, employees or subSDGs related in any way to this Agreement or from any other act or omission of SDG, its officers, agents, employees or subSDGs contributing to such violation, regardless of whether such activities, acts or omissions are intentional or negligent, and regardless of any specification by CLIENT without actual knowledge that it might violate any such law, statute, code, ordinance or regulation.

  7. 7. Conflict of Interest.

    CLIENT acknowledges that SDG provides similar services for a broad range of other companies/clients, and SDG shall be free to work for other companies/clients in matters that do not involve the use of any Confidential Information and do not directly relate to the specific Services provided by SDG to CLIENT under this Agreement.

  8. 8. Termination.

    This Agreement may be terminated in whole or in part for any reason by CLIENT upon seven (7) days prior written notice at any time during the period of performance without penalty to CLIENT. Upon receipt of notice of termination or partial termination from CLIENT, SDG shall immediately cease performance of the Services to the extent set forth in the termination notice and shall take all reasonable steps to minimize costs relating to such termination. CLIENT shall pay for Services properly rendered through the date of termination.

  9. 9. Force Majeure.

    Neither party shall be responsible for any delay or failure in performance, except obligations to make payments hereunder for work previously performed, to the extent that such delay or failure was caused by a force majeure event including an act of God, war, civil disturbance, governmental action, labor dispute unrelated to the party claiming the force majeure event, computer virus or denial of access to the site or any other event beyond the reasonable control of the claiming party. Performance under this Agreement shall resume promptly once the cause of delay or failure ceases and an equitable adjustment shall be made to the price and/or schedule of the Services.

  10. 10. Changes to the Services.

    CLIENT may request changes within the general Scope of Work. Upon notification of such request, SDG shall prepare an estimate of the additional cost and time required, if any, to perform the change. Any such change or other amendment of this Agreement must be in writing and signed by both parties.

  11. 11. Insurance.

    SDG, shall at its expense, obtain and maintain during the period of this Agreement, in a form and with companies satisfactory to CLIENT, the following insurance coverages:

    • (a)

      Workers’ Compensation Insurance to meet fully the requirement of any compensation act, plan or legislative enactment applicable in connection with the death, disability or injury of SDG’s officers, agents, servants or employees arising directly or indirectly out of the performance of this Agreement;

    • (b)

      Employers’ Liability Insurance with limits of not less than $1,000,000 each accident $1,000,000 policy limit for disease, and $1,000,000 each employee for disease;

    • (c)

      Commercial General Liability Insurance with a combined single limit of not less than $1,000,000 per occurrence for injury to or death of persons and damage to or loss or destruction of property and $2,000,000 in the aggregate. Such policy shall be endorsed to provide products and completed operations coverage and contractual liability coverage for liability assumed under this Agreement. The contractual liability coverage shall be of a form that does not deny coverage for operations conducted within 50 feet of any railroad hazard. In addition, said policy or policies shall be endorsed to name CLIENT as an additional insured and shall include a severability of interests provision;

    • (d)

      If the use of motor vehicles is required, Automobile Liability Insurance with a combined single limit of not less than $1,000,000 each occurrence for injury to or death of persons and damage to or loss or destruction of property. Said policy or policies shall be endorsed to name CLIENT as an additional insured and shall include a severability of interests provision;

    • (e)

      Errors and Omissions Insurance with a limit of not less than $1,000,000 each claim.

      SDG shall furnish certificates of insurance to CLIENT’s Risk Manager, ADDRESS, certifying the existence of such insurance. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in coverage or limits without thirty (30) days advance written notice to CLIENT. SDG shall require all subcontractors who are not covered by the insurance carried by SDG to maintain the insurance coverage described in this Section.

      The insurance coverage required herein shall in no way limit the SDG’s liability under this Agreement.

  12. 12. Disputes/Arbitration.
    • (a)

      The parties adopt the following arbitration provisions to avoid the problems of litigation or deadlock in the event the parties cannot resolve any dispute between themselves. Any claim, dispute or controversy arising out of or relating to this Agreement, the parties’ relationship under this Agreement or the breach of this Agreement, shall be determined by arbitration by a single arbitrator pursuant to the Commercial Rules of the American Arbitration Association (“AAA”) in effect at the time the demand for arbitration is filed. Unless otherwise agreed by the parties, the location of the arbitration shall be in Norfolk, Virginia. The decision of the arbitrator shall be final and binding. The party filing the arbitration shall be solely responsible for the filing fee with the AAA. The compensation and any costs and expenses of the arbitrator shall be borne equally by the parties. Each party to the arbitration shall pay the compensation, costs, fees and expenses of its own witnesses, experts and counsel. The arbitrator shall not have the power to award attorney’s fees. Judgment to enforce the decision or award of the arbitrator may be entered in any court having jurisdiction.

    • (b)

      Service of process in connection therewith shall be made by certified mail. In any judicial proceeding to enforce this agreement to arbitrate, the only issues to be determined shall be the existence of the agreement to arbitrate and the failure of one party to comply with that agreement, and those issues shall be determined summarily by the court without a jury. All other issues shall be decided by the arbitrator, whose decision thereon shall be final and binding. There may be no appeal of an order compelling arbitration except as part of an appeal concerning confirmation of the decision of the arbitrator.

    • (c)

      Neither party shall institute any legal proceeding against the other to enforce any right hereunder or for breach hereof, except that either party may institute litigation (i) to enforce its rights of arbitration hereunder (ii) to confirm and have judgment entered upon any arbitration award issued hereunder, and (iii) to stay the running of any statute of limitation or prevent any other occurrence (including, without limitation, the passage of time) which would constitute laches, estoppel, waiver or any other such legal consequence that suit is necessary to avoid, provided, however, that neither party shall pursue litigation under item (iii) beyond such action as is necessary to prevent prejudice to its cause of action pending ultimate resolution by arbitration under this Section 12.

    • (d)

      If any dispute between the parties arises from or in connection with any litigation initiated by any third party (either as claimant, plaintiff, counterclaimant, or defendant/third party plaintiff), then, unless the parties agree otherwise, the resolution of that dispute under the arbitration provisions of this Section may at the option of either party be deferred until the resolution of that third-party litigation, provided, however that in the event of any such dispute in connection with litigation so initiated by a third party, either party may at any time initiate arbitration under this Section 12 to determine prospective liability between the parties upon facts which are stipulated, admitted solely for the purpose of arbitrating prospective liability, or not reasonably in dispute. The issue of whether any fact is “reasonably in dispute” under the preceding sentence shall be subject to mandatory arbitration hereunder upon the demand of either party. In the event CLIENT is made a party to such litigation so initiated by a third party, CLIENT shall select its own counsel and have complete control over all litigation decisions concerning its participation in that litigation, regardless of whether CLIENT is required to, or in fact does, initiate a crossclaim, counterclaim, or third-party claim under Subclause (iii) of Subsection (c) above, and regardless of SDG’s indemnity obligations under this Agreement.

  13. 13. Access to CLIENT Property.

    CLIENT reserves the right to temporarily or permanently bar from CLIENT’s property any of SDG’s employees, servants or agents (“Workers”) who have failed, in CLIENT’s sole discretion, to act safely, respectfully, responsibly, professionally, and/or in a manner consistent with CLIENT’s desire to minimize risk and maintain its property with maximum security and minimum distractions or disruptions or for any other lawful reason. CLIENT shall not be required to specify either the basis for its decision or which objections, if any, it has to the barred individual(s). The decision to bar one or more of SDG’s Workers from CLIENT property shall not be interpreted as a request for SDG to fire the individual(s). SDG shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all claims, demands, suits, liability, damages, losses, costs (including, but not limited to, attorneys’ fees) and expenses arising from or in connection with (a) any allegation that CLIENT is an employer or joint employer of one of SDG’s Workers or is liable for related employment benefits or tax withholdings or (b) CLIENT’s decision to bar or exclude one of SDG’s Workers from CLIENT’s property.

  14. 14. Independent SDG.

    SDG shall be and remain an original and independent party hereunder, and all matters to be performed by SDG shall be its own separate business, under its management, supervision and direction. SDG shall employ, pay from his own funds and discharge all persons engaged in the performance of the Services, and all such persons shall be and remain the sole employees of SDG. Nothing contained in this Agreement is intended to create a joint venture or to constitute either party as agent (for any purpose) of the other.

  15. 15. SDG’s Employee Background Checks.
    • (a)

      Unless otherwise specified, SDG shall secure background investigations of its employees through SDG employees successfully undergoing the background investigation will be issued a picture identification card which will be required for SDG’s employees to enter and work on CLIENT’s property or perform the Services. SDG employees without the identification card will not be allowed to work on CLIENT’s property. Employees leaving the employment of SDG must surrender the identification card to either SDG or to CLIENT. Although CLIENT has negotiated on the behalf of SDG standard volume rates with for the investigations, identifications cards and other products, all charges incurred in the use of e-VERIFILE services and products are the sole responsibility of SDG. Notwithstanding any provision of this Agreement, if any, that permits SDG to seek reimbursement of travel and other expenses from CLIENT, the charges are not included among such reimbursable expenses. SDG has considered such charges as a part of its overhead costs in determining its price proposals. SDG shall execute’s standard Subscriber Agreement – failure to do so voids this Agreement.

    • (b)

      In the event that CLIENT ceases the use of for background investigations or switches to another similar service, SDG will be notified by CLIENT of the termination and/or transfer. In the event that CLIENT switches to another vendor for similar services the requirements of this Section 15 shall apply to SDG with regard to the use of the alternative vendor’s services.

    • (c)

      CLIENT does not warrant or guarantee either the accuracy or completeness of the services performed by; and CLIENT shall have no responsibility to SDG for the services performed by SDG uses such services as between CLIENT and SDG solely at the risk of SDG. CLIENT leaves it to the sole discretion of SDG as to performing other background investigations of SDG’s employees.

  16. 16. Non-waiver.

    No waiver of any breach of this Agreement shall operate as a waiver of any similar subsequent breach or any breach of any other provision of this Agreement.

  17. 17. Severability.

    If any provision of this Agreement is held invalid by a court of competent jurisdiction, that provision shall be severed from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect.

  18. 18. Assignment/Subcontracts.

    Neither party may assign this Agreement without the written consent of the other party, which shall not unreasonably be withheld. SDG shall not subcontract any of the Services without the prior written consent of CLIENT.

  19. 19. Governing Law.

    The interpretation of the terms and conditions shall be governed by the laws of the Commonwealth of Virginia without regard to its principles of conflicts of laws. The performance of the Services shall be in full compliance with all applicable laws.

  20. 20. Norfolk Southern Corporation Acting as an Agent for Another Company.

    If this Agreement has been issued by CLIENT as agent for another company (“Principal Company”) regardless of whether that Principal Company is a subsidiary, affiliate or company for which CLIENT acts as a service provider for certain administrative services under a service provider agreement, “CLIENT” for the purposes of this Agreement shall not mean only CLIENT, its subsidiaries and affiliates but also the Principal Company, its subsidiaries and affiliates. In such case, neither CLIENT nor any of its own subsidiaries or affiliates shall have individual corporate liability hereunder. Notwithstanding such notice of the status as agent, CLIENT shall have full authority with regard to this Agreement, including, without limitation, authority to demand and/or enforce any of the Principal Company’s rights hereunder and to perform, as agent, any act required or expected of the Principal Company under or in connection with this Agreement.

  21. 21. Records and Audits.

    During the term of this Agreement and for eighteen (18) months thereafter, CLIENT and its duly authorized representatives shall be permitted access, within a reasonable time after request, to SDG’s books, records, accounts and other related documentation, pertaining to any Services performed by SDG under this Agreement for the purpose of auditing and verifying the Services, the cost of said Services and/or any other charges or payments made under this Agreement.