Master Services Agreement
Revision Date: September 24, 2015
BY LOGGING ON AND USING THE EDISCOVERY PLATFORM, BY UTILIZING THE COMPANY SERVICES, OR BY EXECUTING AN INCORPORATING AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. THE EDISCOVERY PLATFORM IS PROTECTED BY COPYRIGHT AND OTHER LAW. ANY IMPROPER ACCESS OR RELATED ACTIVITY IS STRICTLY PROHIBITED. DEFINED TERMS ARE INCLUDED AT THE END OF THIS AGREEMENT. THIS AGREEMENT INCLUDES LIMITATIONS ON LIABILITY AND REQUIRES ARBITRATION OF ANY DISPUTES.
1. Authorization, eDiscovery Platform License & Grant Restrictions. Customer (through its Authorized Agent, if applicable) hereby authorizes the Company to establish, continue and maintain Account to provide the Company Services. The Company hereby grants to the Customer and Authorized Users a non-exclusive, non-transferable, worldwide right to use the eDiscovery Platform, solely for the Permitted Use in connection with the Customer’s Account, subject to the terms and conditions of this Agreement. Except for the Authorized Users, no other Users are permitted without specific express written permission by the Company. Except for the Permitted Use, no other use of the eDiscovery Platform is permitted. All rights not expressly granted to an Authorized User are reserved by the Company.
The Customer or a User shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the eDiscovery Platform or the Company Content in any way; (ii) modify or make derivative works based upon the eDiscovery Platform or the Company Content; or (iii) reverse engineer or access the eDiscovery Platform or the Company Technology in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the eDiscovery Platform, or (c) copy any ideas, features, functions or graphics as the eDiscovery Platform. The Customer and Authorized Users may use the eDiscovery Platform only for a Permitted Use and the Customer and Users shall not: (i) interfere with or disrupt the integrity or performance of the eDiscovery Platform or the data contained therein; (ii) attempt to gain unauthorized access to the eDiscovery Platform or its related systems or networks; (iii) use the eDiscovery Platform in violation of this Agreement, any the Company policy or applicable law.
The terms of this Agreement constitute an offer by the Company to the Customer and Authorized Users to utilize the eDiscovery Platform exclusively upon the terms and conditions set forth in this Agreement. No contrary or additional terms or conditions of proposed by the Customer or Authorized Users will be accepted by the Company and any such proposed contrary or additional terms are to be construed as proposals for addition to this Agreement which are hereby rejected unless otherwise indicated in a written instrument executed by a principal of the Company making specific and express reference to this Agreement and the contrary or additional term proposed by the Customer or Authorized Users. The use of the eDiscovery Platform by the Customer or Authorized Users, or the payment by the Customer for the Company Services, shall be deemed unqualified acceptance of the terms and conditions included in this Agreement.
2. Customer Data. The Company does not own or make claim to any of the Customer Data. The Customer and/or the Authorized Users, not the Company, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use the Customer Data.
3. Confidentiality. The Company agrees and understands that the Customer Data are intended to be confidential, and will take reasonable steps to assure that the Customer Data stored on the eDiscovery Platform are not inappropriately disclosed. The Company understands that the Customer Data may be subject to attorney-client privilege or be attorney work product, and agrees to hold such materials as an agent of the attorney or attorneys handling any Proceeding in connection with the Customer Data. Subject to applicable law or court order, the Company agrees not to disclose the Customer Data to any person or entity other than to the Customer, an Authorized User, or as an Authorized User authorizes or instructs. If access to Customer Data is sought by a third party, the Company will promptly notify the Customer or an Account Administrator of such action, tender to the Customer the Company’s defense responding to the request and cooperate with the Customer concerning the Company’s response.
4. Service Level Agreement. The Company guarantees to Customer that Customer’s access to Customer’s eDiscovery Platform Account will have Service Level Availability of at least 99.99%. If Customer’s access to Customer’s eDiscovery Platform Account is less than 99.9%, then Customer will be entitled to a pro rata credit for charges during the period of unavailability, except that credit under this section shall not be applicable or available in connection with any failure or deficiency of Service Level Availability caused by or associated with Service Level Credit Exceptions. To receive a credit, Customer must make a request by sending an email message to support@the Company.com. Each request in connection with this Service Level Agreement should include dates and approximate times of the unavailability of Customer’s eDiscovery Platform Account and must be received by the Company within ninety (90) days after Customer’s eDiscovery Platform Account was not available. Credits under this section are the sole and exclusive remedy of Customer with respect to any failure or deficiency in connection with Service Level Availability.
5. Privacy, Disclosure. The Company’s general privacy policies may be viewed here. The Company reserves the right to modify its privacy policies from time to time. The Company occasionally may need to notify all Authorized Users of the eDiscovery Platform (whether or not they have opted out as described above) of important announcements regarding the operation of the eDiscovery Platform, and any related contact is authorized.
6. Intellectual Property. The Company, and its licensors, where applicable, own and shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Company Technology, the Company Content, and the Company Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer, Customer Associated Persons, or Customer’s Users relating to the Company Services. This Agreement is not a sale and does not convey to Customer or Customer’s Users any rights of ownership or Intellectual Property Rights in or related to the Company Services, the Company Technology or the Company Content. The Company name, the Company logo, and the product names associated with the Company Services are trademarks of the Company, and no right or license is granted to use them. Customer and any of its agents shall not reverse engineer or access the Company Services or the Company Technology in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics, or (iii) copy any ideas, features, functions or graphics.
7. Responsibilities of the Customer and Users. The Customer and Authorized Users are responsible for all activity occurring in the Company’s eDiscovery Platform Account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with their use of the eDiscovery Platform, including those related to data privacy, international communications and the transmission of technical or personal data. Customer and Authorized Users shall: (i) keep their user login password confidential, not share their password with any other person, maintain effective password security, use complex passwords that cannot be easily guessed, and change their passwords periodically, as needed to maintain the confidentiality of their Customer Data and the security of their access to the eDiscovery Platform, (ii) notify the Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (iii) report to the Company immediately and use reasonable efforts to stop immediately any improper use of the eDiscovery Platform that is known or reasonably suspected by the Customer or Authorized Users; and (iv) not impersonate another the Company user or provide false identity information to gain access to or use the eDiscovery Platform. Customer and Users shall not take any action in connection with the eDiscovery Platform or the Company that is prohibited by this Agreement. Customer and Users should also maintain original or periodic backup copies of all Customer Data as needed, and this can be done by creating and downloading Briefcases or Productions, or engaging Company Technical Services for this purpose. Any Customer or Authorized User that is not a lawyer represents that such Customer or Authorized User has engaged legal counsel and looks to that counsel regarding legal advice and for expertise regarding litigation discovery requirements, and not to the Company.
8. eDiscovery Platform Account Types. The Company offer various eDiscovery Platform Accounts including eDiscovery Platform Flex Plans and eDiscovery Platform Annual Plans. eDiscovery Platform Flex Plans are month-to-month and can be cancelled at any time. eDiscovery Platform Annual Plans are 12-month commitments and are not cancellable. eDiscovery Platform Flex Plans and eDiscovery Plans both are billable based on Account Storage and do not assess user fees or case fees for normal use. For eDiscovery Platform Flex Plans, the Company will bill Customer following the end of each calendar month for Account Usage of the eDiscovery Platform during that month, at the Company’s current rates for Company Services utilized, for the highest Account Storage used in the month, rounded up to the next largest GB. eDiscovery Platform Annual Plans are based on a maximum authorized Account Storage in the Account, and if exceeded in a month the eDiscovery Platform Annual Plan may be upgraded to a larger plan with prorated credit. eDiscovery Annual Plans may either be prepaid or billable in monthly installments, depending on the order. There are no set-up or ongoing case or user fees in an eDiscovery Platform Account, so long as self-administered by an Account Administer(s) for the Account.
9. eDiscovery Platform Account Storage Calculations. An eDiscovery Platform Account will be billed based on the data stored in the account, including Customer Data uploaded and other ESI created or stored in the eDiscovery Platform Account, pursuant to current Company pricing, and this will be Customer’s Account Storage for such account at any particular time. The Company calculates the billable storage for the month for an eDiscovery Platform Account as the peak storage used, in GBs (rounded up). Account Storage size increases beyond the amount of Customer Data uploaded because of decompression, PDF and placeholder file creation, text extraction, OCR, index creation and update, SQL database creation and update, Production creation and Briefcase creation. If Customer Data is removed from an eDiscovery Platform Account, or a case or account is deleted, the effect will not be reflected in the current monthly billing, which is based on the highest account usage in the month. Instead deletions will be reflected in succeeding month. An account or case cancellation or deletion will be billed for the month of deletion or cancellation, reflecting the highest of usage for the month of deletion or cancellation.
10. Billing for Company Services other than the eDiscovery Platform. If the Customer or an Authorized User requests or otherwise engages Company Services other than customer self-service usage of the eDiscovery Platform, Customer will pay for these Company Services based on the Company’s current rates. This may include eDiscovery Processing Services that may be billed per GB processed and Technical Services and Consulting Services, which are billed hourly.
11. Billing Fees, Cycle & Information. The Customer agrees to provide the Company with complete and accurate billing and contact information. This information includes legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Account Administrator. Fees for the Company Services are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties. For eDiscovery Flex Plans the Customer agrees to pay by credit card and to maintain a valid credit card on file with the Company for payment, including all required information to allow prompt billing. Unless otherwise agreed in writing, all payments for Company Services are due immediately on billing. Once incurred, payment obligations for the Company Services are non-cancellable and all amounts paid are nonrefundable. With respect to any particular job, order or services part of the Company Services, the Company may require that Customer present an approved purchase order, provide a deposit, prepay for services, or pay with a valid credit card, as a condition to offering or providing any the Company Services, if the Company in good faith deems it advisable. If Customer has or is required to provide a credit card for billing, Customer agrees to maintain valid and updated information to the Company. If the Customer believes a bill or receipt is incorrect, the Customer must contact the Company in writing within 60 days of the invoice or billing date of the invoice or bill containing the amount in question to be eligible to receive an adjustment or credit.
12. Non-Payment and Suspension. In addition to any other rights granted to the Company by this Agreement, the Company reserves the right to suspend Company Services if an Account becomes delinquent. Delinquent charges after 30 days are subject to interest of one and one-half percent per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all lawful expenses of collection. The Customer will continue to be charged for an Account License during any period of suspension. If the Customer or the Company terminates this Agreement, the Customer will remain obligated to pay the balance due on the Account computed in accordance with this Agreement, or if applicable, in an Incorporating Agreement. The Company may charge such unpaid fees to any credit card provide on the Account or otherwise bill the Customer for such unpaid fees. The Company may require a deposit against future Services, or prepayment of Services, and may rightfully refuse to render continued Services if unpaid. Delinquent amounts owed are subject to interest at the rate of 1% per month, or the maximum permitted by law, whichever is less.
13. Termination of eDiscovery Platform Accounts by the Company. The Customer may terminate an eDiscovery Platform Flex Plan Account by notifying the Company in writing at least three (3) business days prior to end of any month. The termination will be effective for the next month and the Account will be billable for the month of termination, and invoiced in the succeeding month. The Customer may terminate an eDiscovery Platform Annual Plan Account by notifying the Company in writing at least three (3) business days prior to end of the applicable annual period. No refund or rebate of unused time or charges will be due or payable for cancellation of any eDiscovery Platform Account.
14. Termination by the Company. The Company may terminate a User’s access to the Account or use of the eDiscovery Platform, if a User fails to comply with this Agreement. The Company may terminate an existing Account upon material breach of this Agreement by the Customer or any Authorized User. Any breach of the Customer’s payment obligations (after 10 days) or unauthorized use of the Company Technology or Company Services (at any time) by an Authorized User will be deemed a material breach of this Agreement. In addition, the Company may terminate a Promotional Account at any time for any reason. The Customer and Users agree and acknowledge that the Company has no obligation to retain the Customer Data upon termination of Account License, and may delete Customer Data from the eDiscovery Platform, within ten (10) days following termination. Prior to termination of an Account the Customer and Authorized Users should download and save any Customer Data that the Customer and Authorized Users wish to retain.
15. Customer Data following Account Termination. On cancellation or termination of any eDiscovery Platform Account, the Company has no obligation to retain the Customer Data, and may delete Customer Data from the eDiscovery Platform upon termination or expiration of an Account for any reason. Prior to termination, expiration or reduction of an Account, the Customer or Authorized Users should download and save any Customer Data that the Customer or Authorized Users wish to retain, utilizing Briefcase or Production functionality, or engaging Company Technical Services for that purpose (separately billable).
16. Representations and Warranties. Each party represents and warrants that such party has the legal power and authority to enter into this Agreement. The Company represents and warrants that it will use commercially reasonable efforts to provide access to the eDiscovery Platform by the Authorized Users. The Customer and Authorized Users represent and warrant that: (a) such Customer and User have not falsely identified itself nor provided any false information to gain access to the eDiscovery Platform, (b) the Account will be used only for the Permitted Use, (c) the Customer and Users have authority to access and use the Customer Data and to use the Company Services in connection with the Customer Data, (d) the Customer and each User understands that the eDiscovery Platform is a supplemental tool for experienced litigation professionals and it is not meant for use by persons who do not fully understand or cannot manage the litigation process unaided, (e) the Customer and each User agree that they are responsible for legal compliance regarding the Customer Data and not the Company, and (f) that the Customer and Users are relying on their own skills and competence or other third party sources of expertise and advice and are not relying on the Company or the Company Related Persons for any legal or technical advice.
17. Other Services. If the Company is requested by the Customer or an Account Administrator to engage in Other Services, or the Company is required to engage in Other Services by others in connection with or involving the Customer or Authorized Users, and the Company agrees to perform the Other Services, then the Company will charge the Customer and the Customer will pay the Company for the Other Services as performed by the Company personnel at the Company’s then current hourly rates for the required personnel, plus any associated out-of-pocket expenses.
18. Indemnification. The Customer and Users shall indemnify and hold the Company and the Company Related Persons harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data is improper; (ii) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (iii) a claim, which if true, would constitute a violation by the Customer or Users of the Customer or Users’ representations and warranties; or (iv) a claim arising from the breach by the Customer or Users or the Customer or Users’ agents of this Agreement; provided in any such case that (a) the Company gives written notice of the claim to the Customer; (b) the Company gives the Customer sole control of the defense and settlement of the claim, provided that the Customer may not settle any claim unless the Customer obtains unconditionally releases of the Company and the Company Related Persons of all liability and such settlement does not adversely affect the Company’s business or Service; (c) the Company provides to the Customer all available information and reasonable assistance; and (d) the Company has not compromised or settled such claim.
The Company shall indemnify and hold the Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the eDiscovery Platform directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; or (ii) a claim, which if true, would constitute a violation by the Company of its representations or warranties contained in Section 16 of this Agreement; provided in any such case that the Customer (a) gives written notice of the claim to the Company; (b) gives the Company sole control of the defense and settlement of the claim (provided that the Company may not settle or defend any claim unless it unconditionally releases the Customer of all liability); (c) provides to the Company all available information and reasonable assistance; and (d) has not compromised or settled such claim. The Company shall have no indemnification obligation, and the Customer and Users shall indemnify the Company and the Company Related Persons pursuant to this Agreement, for claims arising from any infringement arising from the combination of the eDiscovery Platform with any of the Customer and Users’ products, service, hardware or business processes.
The liability of parties under this section may be limited in amount or otherwise by other sections of this Agreement, including Sections 19-24.
19. Limitations in Company Services. The Company shall have full discretion to reject any particular request for the Company Services. Customer and Users understand, agree and accept that the Company has not guaranteed any particular standard or level of Company Services other than the Service Level Availability, and that all services and software, are inherently imperfect and subject to error. Customer and Customer’s Users can and should maintain their own backup and archival copies of the Customer Data. Customer Data can be periodically downloaded by Customer or Customer Users from the Customer Accounts as needed to maintain archival or backup copies. Also, Customer and Users understand and accept that substantially all computer software of any complexity, the Company Technology, contains bugs, defects and errors, and these bugs, defects and bugs can lead to errors in the Company Services. The standard of conduct and care in connection with the Company Services will be commercially reasonable care (subject to limitations in this Agreement), and not a best efforts or higher standard.
20. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFIED IN SECTION 16 OF THIS AGREEMENT, THE COMPANY AND THE COMPANY ASSOCIATED PERSONS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY OF ANY KIND, WHETHER IN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTUOUS ACTION, EVEN IF THE COMPANY OR THE COMPANY ASSOCIATED PERSONS WERE INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION, THE COMPANY AND THE COMPANY ASSOCIATED PERSONS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE COMPANY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) THE COMPANY SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS, NEEDS OR EXPECTATIONS (EVEN IF KNOWN TO THE COMPANY), (C) SERVICES WILL BE WITHOUT ERROR, ACCURATELY REPRODUCED OR RELIABLE, (D) THE COMPANY SERVICES ARE BUG-FREE, ERROR-FREE, OR DEFECT-FREE OR THAT BUGS, ERRORS OR DEFECTS WILL BE CORRECTED. THE COMPANY SERVICES AND ALL THE COMPANY CONTENT IS PROVIDED TO THE CUSTOMER AND USERS STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND NON-INTERFERENCE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY AND THE COMPANY ASSOCIATED PERSONS.
21. DELAYS OR FAILURES. THE OBLIGATIONS OF ANY PARTY TO THIS AGREEMENT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS PARTICULAR OR COMMON IN THE USE OF COMPUTER, THE INTERNET AND ELECTRONIC COMMUNICATIONS. NO PARTY IS RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
22. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL A PARTY OR AFFILIATES BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER RELATED DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE COMPANY SERVICES OR THIS AGREEMENT, EVEN IF THE PERSON FROM WHICH OR WHOM DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S AFFILIATES HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER AN ACTION IS SOUGHT IN CONTRACT, NEGLIGENCE, OTHER TORT OR OTHERWISE. THE COMPANY UTILIZES THIRD PARTY SOFTWARE LIBRARIES AS PART OF THE COMPANY SERVICES AND THE COMPANY TECHNOLOGY AND WILL HAVE NO LIABILITY IN CONNECTION WITH ANY FAILURE OF COMPANY SERVICES IN CONNECTION WITH THOSE LIBRARIES FOR ANY REASON, INCLUDING THE COMPANY’S SELECTION OF THE SOFTWARE LIBRARIES. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY IN CONNECTION WITH ANY PARTICULAR DISPUTE EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM THE Customer IN CONNECTION WITH THE ACCOUNT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN THE COMPANY AND THE OTHER PARTIES. THE COMPANY’S PRICING HEREIN REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
23. NO LIABILITY OF ASSOCIATED PERSONS. IN NO EVENT WILL ANY THE COMPANY ASSOCIATED PERSON HAVE ANY LIABILITY OF ANY KIND, IN RELATION TO ANY MATTER INVOLVING THE COMPANY OR RELATED TO THIS AGREEMENT OR THE COMPANY SERVICES, AND THE CUSTOMER AND USERS AGREE TO LOOK SOLELY TO THE COMPANY FOR SATISFACTION OF ANY SUCH CLAIM, AND TO NOT MAKE ANY SUCH CLAIM OR BRING ANY SUCH ACTION AGAINST THE COMPANY RELATED PERSONS. ANY SUCH CLAIMS ARE HEREBY WAIVED. IF SUCH A CLAIM IS MADE IT WILL BE DISMISSED BY THE APPLICABLE TRIBUNAL.
24. Reduced Statute of Limitations. Any claim or cause of action arising out of or related to use of the Company Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
25. Local Laws and Export Control. The eDiscovery Platform may be subject to United States export controls. The eDiscovery Platform may not be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the eDiscovery Platform, each User represents and warrants that such User is not located in, under the control of, or a national or resident of any such country or on any such list.
26. Notice. The Company may give notice by means of any of the following: a notice on an invoice or receipt sent to the Customer, a notice by electronic mail to the contact person of the Customer on the books of the Company, a notice to Account Administrators made on an Account Administrator accessible page on the eDiscovery Platform, a general notice on the eDiscovery Platform made available to Authorized Users, a notice on login to the eDiscovery Platform, or email messages to Authorized Users. The Company may also give notice by written communication sent by first class mail or pre-paid post to the Customer or Authorized Users’ address on record in the Company’s account information. In each case, such notice will be deemed delivered when made available or sent and will bind the Customer and Users. The Customer and Users may give notice to the Company at any time by any of the following: Written communication by facsimile to the Company at the following fax number: (888) 836-2427; written communication delivered by nationally recognized overnight delivery service or first class postage prepaid mail, certified with return receipt requested, to the following address: the Lexbe LC 8701 N Mopac Expy, Suite 320 Austin, TX 78759, addressed to the attention of: CEO; email sent to email@example.com.
27. Modifications to This Agreement. The Company reserves the right to modify amend the terms and conditions of this Agreement at any time, effective upon posting of an updated version of this Agreement on the eDiscovery Platform, or by providing notice as provided in the prior Section. When revised, the Revision Date at the top of this Agreement will also be modified. Subsequent renewal of a License Term, or continued use of the eDiscovery Platform after any such modifications (except as provided in the next sentence), shall constitute the Customer’s and Users’ consent to such changes. If the Customer or an Authorized User objects to the modifications, then the objecting Customer or Authorized User will promptly notify the Company of the objections and then the existing version of the Agreement prior to the objected-to modifications will remain in effect for the objecting Customer or Authorized User. Upon such objection, the objecting Customer or Authorized User may continue using the Company Services as before the modification, but this Agreement will terminate with respect to the objecting Customer or Authorized User at the end of then-current License Term, unless the end of then-current License Term is ten days or less following the objection, in which case this Agreement will terminate at the end of the succeeding License Term, but not more than 45 days following the objection. The Company and any particular Customer or Authorized User may enter into a written modification to this Agreement to govern the relationship between the Company and such particular Customer (and applicable Account) or Authorized User and such agreement will control over this Agreement. To be effective, such modification between the Company and the particular Customer Authorized User must be written, specifically refer to this Agreement as a modification or amendment and be signed by a principal of the Company.
28. Assignment. No party may assign this Agreement without written consent of the other parties, except such consent is not required to the successor of all or substantially all of the assignor’s business or assets.
29. Disputes Resolution. If a dispute arises out of or relates to this Agreement, or the breach thereof, or relating to the use of the Company Services, or to any acts or omissions for which the Customer or Users may contend the Company or the Company Related Persons are or may be liable, including but not limited to any claim or controversy as to arbitrability (collectively, a “Dispute”), but excluding a Technology Injunction Action or an Interpleader Action, and if the Dispute cannot be amicably settled, then THE DISPUTE SHALL BE FINALLY, AND EXCLUSIVELY, SETTLED BY ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). The arbitration shall be held before one arbitrator under the commercial arbitration rules of the AAA in force at that time, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration shall be conducted in Austin, TX. The arbitrator will conduct the arbitration in an expeditious manner, and will set and enforce limits as to the extent of discovery, number of witnesses, length of testimony, consideration of motions, and other matters, proportional to the size and extent of claims, and to meet the goals of commercial arbitration to adjudicate disputes in a fast, efficient and cost-effective manner. To begin the arbitration process, a party must make a written demand of arbitration. Should a Dispute arise and should the arbitration provisions above become inapplicable or unenforceable, or in any instance of any lawsuit between the Customer, Users, the Company and/or the Company Related Persons, the parties agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Austin, TX, and the matter will be heard by a judge without jury, and THE PARTIES WAIVE ALL RIGHTS TO A JURY TRIAL. If a party employs attorneys to enforce any right in connection with any Dispute, the prevailing party shall be entitled to recover reasonable attorneys’ fees. The prevailing party will be determined to be the party who has most successfully proven the party’s claims in the matter, not merely the party who has received a positive reward.
30. Agreement Interpretation. The failure by any party to enforce any right or provision in this Agreement shall not constitute or operate as a waiver of such right or provision by such party unless specifically acknowledged and agreed to by such party in writing. Whenever possible, each provision of this Agreement shall be interpreted in such a way as to be effective and valid under applicable law. If a provision is prohibited by or is invalid under applicable law, it shall be ineffective only to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. If a party is entitled under this Agreement to make a decision or determination, or take or refuse an action, then that decision, determination or action may be made in such party’s sole discretion, unless this Agreement provides expressly and specifically to the contrary. This Agreement will not be construed in favor of one party or another, no matter who drafted any provision. References to ‘include’, ‘includes’, ‘including’ or the like will be interpreted as being without limitation, and not be interpreted as restricting the references item.
31. Interpleader Available. If there is a dispute regarding ownership of the Customer Data, Customer authorizes the Company, on behalf of Customer and Customer’s Users, to bring an Interpleader Action and to have its legal and other expenses in connection with Interpleader Action reimbursed.
32. No Legal Partnership or Joint Venture. No joint venture, partnership, employment, or agency relationship exists between Customer, Users, the Company, or any other parties, as a result of this Agreement or use of the Company Services.
33. No Waiver. The failure by any party to enforce any right or provision in this Agreement shall not constitute or operate as a waiver of such right or provision by such party unless specifically acknowledged and agreed to by such party in writing.
34. Survival. The provisions of Sections 18-33 will survive termination of this Agreement for any reason.
35. Governing Law. This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction.
37. Definitions. The following terms will have the following meanings in this Agreement.
“Account” refers to use of the eDiscovery Platform and other Company Services, by the Customer, or an Authorized User, as reflected in the accounting or other records of the Company, or as described in an Incorporating Agreement.
“Account Administrator(s)” means one or more individuals granted elevated rights in an eDiscovery Platform Account by or at the direction of Customer, including adding and removing eDiscovery Platform Account cases and Users, instructing the Company regarding the Customer Accounts, and otherwise administering the use of an eDiscovery Platform on behalf of Customer and Users. Customer’s Account Administrators may also designate other Customer Account Administrators on behalf of Customer.
“Account License” means the right of the Customer to utilize the eDiscovery Platform pursuant to this Agreement, and may include access rights for one or more Account Administrators and Authorized Users.
“Account License Charges” means the Company’s charges to the Customer for an Account License as described in Section 10 of this Agreement.
“Affiliate” means any individual or entity, who or that, directly or indirectly, controls, is controlled by, or is under common control with, the subject individual or entity. Control includes ownership or voting control of more than 50% of the voting, equity securities of a subject entity.
“Agreement” means this services agreement, as applicable between the Company, the Customer and Users, as may be updated from time to time pursuant to this Agreement. This Agreement may be incorporated by reference into an Incorporating Agreement.
“Analytics” means NearDup Grouping and Assisted Review, when used as part of Customer Accounts.
“Ancillary Services” means other activities or services requested of the Company or Affiliates by Customer or Authorized Users in connection with Customer’s Account.
“Associated Persons” means the officers, directors, owners, employees, independent contractors, attorneys, agents and Affiliates.
“Authorized Agent” means any individual with authority to bind
“Authorized User(s)” means a Customer’s Account Administrators, employees, representatives, contractors, consultants, agents or guests, or other persons, who are authorized to use the eDiscovery Platform by an Account Administrator, and have been supplied user identifications and passwords by an Account Administrator (or by the Company at the request of an Account Administrator’s or other authorized agent of Customer or the Account Administrators.
“Briefcase” means the ability of a User to create a download including specified Customer Data and ESI, as part of an eDiscovery Platform Account. Briefcases should not be used as a litigation production as they may include privileged, redacted and other confidential data that would usually be excluded from a litigation production. Production functionality in the eDiscovery Platform should be used instead for that purpose.
“Company“ means the Lexbe LC, a Texas limited liability company, and any successors and assigns.
“Company Content” means the written, audio and visual information, documents, software, products and services contained or made available to Customer or Customer’s Users in the course of using the Company Services, including the Company Technology, but excluding the Customer Data.
“Company Services” means the eDiscovery Platform, the Consulting Services, the eDiscovery Services and the Ancillary Services.
“Company Technology” means the Company’s Intellectual Property Rights used by the Company in connection with the Company Services or this Agreement, or otherwise made available to Customer or Customer’s Users by the Company in connection with the Company Services. The Company Technology includes any Custom Development and the resulting Intellectual Property Rights done at the request of Customer.
“Confidential Information” means information and knowledge concerning the business and operations of each party, including, without limitation, information regarding financial position, customers, customer lists, and suppliers, past, present or future plans with respect to the business of the parties, bids, relationships, negotiations, and techniques in bidding and negotiating, current or future advertising or promotion plans or programs of the parties or its affiliates, and processes, plans, software, technology, methods of doing business, and special needs of referral sources and customers.
“Customer” means the individual or entity paying for an Account License as reflected in the Order or in the Company’s billing records, or signing up for a Promotional Account. If an individual is reflected as responsible for paying for the Account, then Customer shall include such individual and also any other person, company or entity, on whose behalf the individual is acting in utilizing the eDiscovery Platform. If the Customer is using the eDiscovery Platform on behalf of an Affiliate as an agent of the Affiliate, then Customer refers as well to the Affiliate and the Affiliate is bound by this Agreement.
“Customer Data” means all electronic stored information ESI, electronic documents and other electronic files and data, related to or uploaded to Customer’s Accounts, or any other case-related data, information or material provided or submitted by a Customer or Customer’s Users to the Company in the course of utilizing the Company Services, but excluding any the Company Content.
“Consulting Services” means electronic discovery consulting or project management services offered by the Company.
“Dispute” has the meaning defined in Section 29.
“eDiscovery Platform” means the Company’s web-based eDiscovery hosted review application available as SaaS, developed, operated, and maintained by the Company, accessible via http://www.Lexbe.com or another designated web site or IP address, and comprising part of the Company Technology and the Company Content, to which Customer’s Users are being granted access under this Agreement.
“eDiscovery Platform Account(s)” means one or more separate accounts maintained by Customer to utilize the eDiscovery Platform, on behalf of Customer and Customer’s Users.
“eDiscovery Platform Annual Plans” refer to Customer Accounts with 12-month commitments, and are limited to specified maximum Account GB storage. Annual Plans include Annual-Prepaid and Annual-Installment plans, and both are non-cancellable.
“eDiscovery Platform Flex Plans” refer to Customer Accounts with month-to-month usage of the eDiscovery Platform based on variable usage.
“eDiscovery Platform Storage Charges” means that eDiscovery Platform Accounts are based on GB storage charges for all ESI in an account, including all Customer Data, uploaded and processed native, image and other files, OCR text, system-created PDFs, briefcases and productions, search index, and related database usage, for the highest usage in the month. Deletions of ESI from an account during a month will not decrease that month’s usage but may reduce subsequent usage.
“eDiscovery Services” means Technical Services and Consulting Services provided by the Company or Affiliates to, at the request of, or on behalf of the Customer, Authorized Users or Affiliates.
“Effective Date” means the earlier of the date this Agreement is accepted by a User, the first date a User begins using the eDiscovery Platform, the ‘effective date’ as defined in an Incorporating Agreement, or the date that an Incorporating Agreement is fully signed by the parties to it.
“ESI” means electronic stored information.
“Free Customer Support Policy” means the Company’s policy for providing limited free customer support to Users of the Company Services. Matters outside of the Company Free Customer Support policy, including emergencies, should be submitted to Technical Services, and are billable under Technical Services rates. The Company’s current Customer Support Policy is available here.
“Free ESI Load/Processing+” refers to Company Services to load and process Customer Data to a Customer eProcessing Platform Account, with no initial ESI processing or loading charge (usually $125/GB loaded or processed). This service incurs monthly account minimum a 6-month minimum hosting commitments in an eDiscovery Platform Account for all of the uploaded or processed ESI, based on the GB size after upload and processing. There is no minimum monthly hosting commitment for ESI that Customer self-loads.
“Hibernation” refers to an Account in which the Customer or any Administrator has elected to maintain in a storage-only mode, with no User access during the period of Hibernation.
“Incorporating Agreement” means any written agreement between the Company (which is signed by an executive officer of the Company) and any person that incorporates by reference this Agreement.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, including without limitation software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information.
“Interpleader Action” means an action by the Company to interplead Customer Data to a court or other tribunal of competent jurisdiction in connection with a dispute over ownership of Customer Data.
“License Term(s)” means the period(s) during which the Customer or Authorized Users maintain an active Account License to use the eDiscovery Platform pursuant to the applicable Order, including the Initial License Term and any and all renewal terms.
“Order” means the record or records evidencing the submission or request for use Company Services, or an Account, including any sufficient individual or combination of online or written forms, invoices, receipts, purchase orders, statements, quotes, email or written communications, or submission of a deposit, payment or payment information to the Company. In the event of any conflict between the terms of this Agreement and the terms of any Order, the terms of this Agreement shall prevail.
“Other Services” means services or other activities requested of the Company or Affiliates by the Customer or an Account Administrator, or services required of the Company or Affiliates in connection with a Proceeding involving a Case, the Customer Data, or any Authorized Users, which services or other activities may include without limitation subpoena compliance, evidence recovery, data recovery, media or data transfer, time spent preparing for and participating in depositions, travel, expert witness services, or other litigation matters within the Company’s expertise or knowledge, but do not include the eDiscovery Services.
“Permitted Use” means use of the eDiscovery Platform or other the Company Services for a legal purpose in connection with a a Customer’s bona fide litigation or information governance needs, either as a principal, agent, employee, attorney or consultant. The Permitted Use does not include use under false pretenses, a use involving misrepresentation to the Company, or use by a competitor of the Company.
“Proceeding” means an actual or anticipated lawsuit, arbitration, mediation, administrative proceeding in a court of law or before an administrative body or arbitration or mediation organization, in which a legal remedy or outcome is sought.
“Production” means the ability of a User to create a litigation production download of specified responsive documents as part of an eDiscovery Platform Account.
“Promotional Account” means an Account that the Company may make available from time to time on a trial or other promotional basis to new Customers and Authorized Users. Promotional Accounts may be of limited duration as determined by the Company and may be subject to other restrictions.
“Service Level Availability” means access to an eDiscovery Platform Account at least 99.99% of the time in a billing month, based on 24-hour days for the number of days in the subject month from the Internet in the United States.
“Service Level Credit Exceptions” means (a) circumstances beyond the Company’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, (b) unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or service, unless such failure is substantially caused by the Company; (c) scheduled maintenance and emergency maintenance and upgrades; (d) DNS failure outside the direct control of the Company; (d) Customer’s or Customer’s Users’ acts or omissions (or acts or omissions of others engaged or authorized by Customer or Customer’s Users), including, without limitation, any negligence, willful misconduct, or use of the eDiscovery Platform in breach of this Agreement; (e) outages elsewhere on the Internet that hinder access to the Customer’s Account.
“Technical Services” means any electronic discovery litigation support services provided by the Company at the request of Customer, Authorized Users of Affiliates of either. These include exception handling, working with password protected or corrupt, partially-corrupt, or other files, PDFs or mail archives that do not successfully convert automatically or unattended, loadfile manipulation, correcting or modifying delivered loadfiles, converting non-standard loadfiles, handling or assisting in data transfers, data copying or duplication, manual or semi-automatic file conversion, review or manipulation file or data research or analysis, training, usage, customization or administration of the eDiscovery Platform, cases or data, manual or semi-automated file conversions, transferring cases between accounts or in or out of hibernation, user administration, assistance with uploads, processing, downloads, or productions. recovering deleted cases or documents, user and user right administration, setting up custom fields and saved searches, moving or copying cases between accounts to copying files or data between cases, field or data updating, assisting with reporting or preparing reporting, reviewing discovery or ESI specifications, deliverables, consulting with clients or third parties and client request regarding technical aspects of eDiscovery processes, procedures or output, related conferences or meetings, or other technical services or litigation support of clients for cases, jobs or projects.
“Technology Injunction Action” means a proceeding brought by the Company before any tribunal with jurisdiction to request an injunction and/or a temporary restraining order, to protect the Company Technology.
“Trademarks” means all names, marks, logos, designs, trade dress and other brand designations used by a party in connection with its products and services. The Company trademarks include ‘Lexbe’.
“Unauthorized User(s)” means individuals accessing the eDiscovery Platform who are not Authorized Users.
“User(s)” means Authorized Users and Unauthorized Users. If a User is using the eDiscovery Platform on behalf of an Affiliate, then ‘User’ refers as well to the Affiliate and the Affiliate is bound by this Agreement.
“You” refers to any User logging in and accessing or using the eDiscovery Platform, as well as a party (other than the Company) to an Incorporating Agreement.