Terms & Conditions 2023
The following iDiscovery Solutions (“iDS”) terms and conditions (“Terms and Conditions”) apply to engagement documents (the “Engagement”) dated after September 1, 2023, and incorporate all capitalized terms defined in the Engagement. A reference in the Engagement or the Terms and Conditions to the singular includes the plural and vice versa. iDS reserves the right to amend or revise the Terms and Conditions from time to time.
1.1 The Services provided by iDS and the analysis of a Project Consultant or Expert shall be objective and independent, and not necessarily those of other employees of iDS. Prior to the submission or distribution of any statement describing any opinions of a Project Consultant or Expert, the Project Consultant or Expert is entitled to review such statement for accuracy. In any court proceeding, a Project Consultant, Expert and/or iDS shall be entitled to object to requests by third parties to obtain information concerning material personal to the Project Consultant or Expert, proprietary to iDS, or that is unrelated to the Engagement. Such objections may be required by existing confidentiality agreements or protective orders. iDS and the Project Consultant and/or Expert shall use best efforts to protect Client’s interests consistent with the need to protect the Project Consultant’s, Expert’s, and/or iDS’ personal and proprietary information and comply with all confidentiality obligations.
1.2 If specific support is required to perform the Services that cannot reasonably be provided by iDS, iDS may employ or contract for additional support, provided that all persons or entities providing such support shall comply with the confidentiality provisions of the Engagement.
1.3 The Services are being done for and under the direction of Client and/or Firm identified in the Engagement and, accordingly and as applicable, are part of the Client’s in-house counsel and/or Firm’s work product, and all communications between the Parties in connection with such Services are confidential and privileged.
2.1 iDS shall submit a monthly invoice of professional fees and expenses (“Costs”) (each, an “Invoice”) to any contacts identified in Section 1 of the Engagement as an Invoice Addressee or Copy on Invoice, or as part of special invoicing instructions in the Engagement. Invoices will be sent via electronic mail or the special invoicing instructions. Responsible Paying Party, Client and/or Firm will review all Invoices upon receipt and will advise iDS of any objection to, or dispute with, the Costs or Services reflected in the Invoice within 30 days from the receipt thereof. All Costs are exclusive of any applicable property, excise, sales, use, or similar taxes, all of which are the responsibility of the Responsible Paying Party.
2.2 The Responsible Paying Party shall pay the undisputed portion of any Invoice within 30 days of the receipt. If the Client is the Responsible Paying Party, Firm (if applicable) shall make reasonable efforts to facilitate the Client’s payment.
2.3 In the event any undisputed portion of Invoices remain unpaid after 45 days iDS’ invoice submission pursuant to Section 2.1, iDS may send written notice to one or more of the contacts identified Section 1 of the Engagement, and if such undisputed portion is not paid within 15 days of receipt of such notice, iDS is entitled to withhold delivery of Services, suspend access to Licensed Software (as defined below), and/or suspend all work on the Client’s behalf, in addition to any other rights iDS may have under the Engagement or applicable law. iDS reserves the right to require the undisputed portion of Invoices or a Retainer to be paid in full prior to an Expert’s provision of expert testimony.
2.4. iDS shall be entitled to charge interest at a rate of 18% per annum (1.5% per month) or the maximum permitted by law, whichever is lower, from the due date to the payment date for any payment amount due under Section 2.2 which is not timely paid by the Responsible Paying Party.
3.1 Within ten (10) business days of a request by a Party, the Parties shall cause senior representatives of each Party to negotiate in good faith to resolve any controversy, dispute or claim of whatever nature arising out of, in connection with, or in relation to the interpretation, performance or breach of the Engagement. A Party shall not initiate any dispute resolution or legal proceeding until a Party has notified the other Parties that it has determined in good faith that amicable resolution is unlikely (except a Party may institute legal proceedings or dispute resolution procedures earlier in order to request immediate injunctive relief or specific performance or to avoid the expiration of any applicable statutes of limitation).
3.2 Except for any action seeking a temporary restraining order or other injunctive relief, all disputed shall exclusively be resolved by confidential and final and binding arbitration administered by and in accordance with the then-existing Rules of Practice and Procedure of Judicial Arbitration & Mediation Services, Inc. (JAMS), or its successor entity, and judgment upon any award rendered by the arbitrator may be entered by any State or Federal court. The Engagement shall be governed by the laws of Washington, D.C., which shall be the exclusive venue for any arbitration hereunder.
3.3 The prevailing Party in any dispute hereunder shall be entitled to reasonable attorneys’ fees and expenses incurred in arbitrating, appealing, and/or enforcing any judgment entered by the arbitrator.
4.1 The Parties acknowledge that during the term of the Engagement each of them (a “Receiving Party”) may come into possession of or become acquainted with certain confidential and/or proprietary information (“Confidential Information”) of another Party (a “Disclosing Party”), and that the receipt of such Confidential Information is necessary for the performance of the Services hereunder. As to iDS, Confidential Information shall include all iDS IP, business information, marketing and sales information, strategies, and business processes. As to Firm and Client, Confidential Information shall include all Firm/Client IP, all information, materials, and data sources that Firm or Client provides to iDS, all documents or other materials that contain or are derivative of such information, and all deliverables, evidence and non-public information relating to the Engagement. As to all Parties, Confidential Information shall include the material terms of the Engagement, including the Fee Schedule, and all information not generally known to the public. Firm’s or Client’s delivery of Confidential Information to iDS does not operate as a waiver of any applicable statutory or common law privileges or protections. Confidential Information does not include information that is generally known to the public or is known by the Receiving Party before the information is delivered under the Engagement. Firm shall promptly notify and provide iDS with a copy of all protective orders and/or confidentiality agreements that govern information and materials that Firm or Client provides to iDS, and iDS shall comply with the terms of all protective orders and/or confidentiality agreements upon receipt thereof for as long as iDS possesses the subject information or materials.
4.2 A Receiving Party shall only disclose a Disclosing Party’s Confidential Information to its employees, independent contractors, subcontractors, attorneys, accountants, or agents to the extent that such individuals have a need to know for the purposes described in the Engagement, and the Receiving Party shall be responsible for such recipients’ care and use of such Confidential Information. A Receiving Party shall treat such Confidential Information as strictly confidential and with the same or greater standard of care as it uses for its own confidential and proprietary information. Except as permitted by the Engagement, no Party will: (a) make any use of another Party’s Confidential Information for its own benefit; or (b) acquire any right in or assert any lien against another Party’s Confidential Information or permit any third party to do so. A Receiving Party will immediately notify a Disclosing Party in the event of any known disclosure, loss, or use of such Disclosing Party’s Confidential Information in violation of the Engagement.
4.3 Notwithstanding the above section, a Receiving Party may disclose a Disclosing Party’s Confidential Information (a) upon such Disclosing Party’s written consent; or (b) to the extent required by law or order of a court or governmental agency, provided that prior to such disclosure the Receiving Party must (i) notify the Disclosing Party immediately of the existence, terms, and circumstances of a request to disclose Confidential Information, (ii) permit the Disclosing Party the opportunity to seek a protective order and/or other appropriate remedy, or waive the Party’s compliance with this Article; (iii) provide such cooperation as the Disclosing Party might reasonably request; and (iv) disclose only the Confidential Information that it is legally required to furnish.
5.1 “iDS IP” includes all iDS proprietary and third-party licensed software or applications, code (source and object code forms), functionality, customizations (and improvement thereto), tools, products, content, URLs, domain names, technology, system or network architecture, topology, scripts, user interfaces, “look and feel,” trade secrets, copyright rights, trademarks, patent rights, know-how, inventions and rights of priority as recognized in any country or jurisdiction in the world. iDS IP remains the exclusive property of iDS or its licensors. iDS owns all rights, including, without limitation, all intellectual property rights to any iDS IP developed by iDS. iDS owns all rights, including, without limitation, all intellectual property rights to any iDS IP developed by iDS during the Engagement. iDS grants Client (and Firm and any expert witnesses or others involved in the representation of Client) a royaltyfree license to access, store, reproduce, display, handle, perform, transmit, test, or otherwise use all iDS IP that iDS provides to Client or that is incorporated into any iDS work product or deliverables or that is necessary to use the work product or deliverables.
5.2 “Firm/Client IP” encompasses all information and materials that Firm or Client provides to iDS under the Engagement. Firm/Client IP remains the exclusive property of Firm or Client (as applicable). Firm/Client IP shall include any work product that iDS is paid to create under the Engagement, including any derivative work that incorporates Firm/Client IP, but excluding any derivative work with respect to iDS IP.
5.3 iDS may provide Firm, Client, and/or their respective employees, contractors, and representatives (collectively, “authorized end-users”) with access to proprietary or licensed online software (such as Relativity® or the xIOT® Platform) designed for, among other things, hosting, file review, searching, coding, work-flow management, document security, data organization, management, analysis and reporting (collectively, “Licensed Software”) as part of the Services. iDS hereby grants to all authorized end-users a personal, non-exclusive, non-transferable, revocable, and limited end-user license to access and use such Licensed Software to the extent provided in the Engagement, as permitted by such licensors. iDS may suspend, terminate, or block access to all or any part of the Licensed Software if (a) iDS notifies Firm of a demonstrable violation of the terms of the Engagement (other than a violation of Section 5.4) and the violation is not remedied within 15 days of the Firm’s receipt of such notice; (b) iDS reasonably determines that continued use of the Licensed Software will lead to corruption, loss, or a violation of the confidentiality, of Firm’s, Client’s, or a third party’s information, or (c) iDS reasonably determines that Firm or Client has violated Section 5.4. Neither Firm nor Client acquires any intellectual property or other rights to such Licensed Software, or any derivatives thereof through use hereunder.
5.4 Authorized end-users may assign their own password for purposes of accessing and using the Licensed Software. Each authorized end-user shall be responsible for maintaining the confidentiality and maintenance of all passwords. Firm and Client hereby accept full responsibility for, and shall be liable for, all access to the Licensed Software by their authorized end-users, and all expenses or damages incurred by iDS in maintaining the security of a password, including resetting a password or preventing unauthorized access. Firm and Client shall use reasonable efforts to prevent unauthorized access or use of the Licensed Software and shall immediately notify iDS of any unauthorized use or other breach of security. Firm and Client shall not: (a) disassemble, decompile or otherwise reverse engineer or create derivative works of the Licensed Software, or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Licensed Software; (b) provide access to the Licensed Software to third parties (except as expressly permitted herein); (c) copy or modify the Licensed Software; (d) remove any names, designations, trademarks or notices from the Licensed Software; or (e) allow any of their authorized end-users or any third party to do any of the foregoing.
5.5 Subject to Article 4, and solely for the purpose of the Engagement, Firm and/or Client hereby grants to iDS a royaltyfree right to collect, access, store, reproduce, display, handle, process, transmit, test, or otherwise use all Confidential Information. iDS shall not access, store, reproduce, display, handle, perform, transmit, test or otherwise use any Confidential Information for any purpose other than to provide the Services. By providing Confidential Information to iDS, Firm or Client (as applicable) represents and warrants that iDS’ right to collect, access, store, reproduce, display, handle, process, transmit, test, or otherwise use Confidential Information (a) was obtained lawfully by Firm or Client, in full compliance with all applicable laws, regulations, and statutes, orders or policies of any court or agency of competent jurisdiction, and with due regard for and deference to the property rights or privacy rights of third parties, and (b) does not conflict with or result in a breach or default of any term or provision of any agreement, obligation or duty to which Firm or Client is a party or is bound.
5.6 Firm and Client acknowledge that Confidential Information may be damaged, corrupted, or deleted prior to inspection and analysis by iDS. iDS shall take commercially reasonable precautions to preserve Firm’s and Client’s Confidential Information and iDS does not assume responsibility for additional damage that may occur to Firm or Client’s Confidential Information during iDS efforts to perform Services unless it is the result of iDS’ gross negligence or willful misconduct.
REIMBURSEMENT, LIMITATION ON LIABILITY, AND INSURANCE
6.1 Reimbursement for Access Costs. Responsible Paying Party acknowledges that iDS is relying on Client’s warranties set forth in Section 5.5 as a pre-condition for performing the Services, and that the scope of the Services and the applicable charges have been set based on such warranties being true. In the event that (i) any third party claims that Client lacked the authority or authorization to deliver or provide access to any Confidential Information to iDS, or claims that Client’s delivery of any Confidential Information to iDS, or iDS’ possession, custody or access to such Confidential Information, is prohibited by law or any agreement, duty or obligation to which Client is a party or is bound; and (ii) iDS spends reasonable professional time and/or incurs legal, expert, or other expenses in responding to such claims; then such expenses shall be added to the Costs for the Services, and the Responsible Paying Party shall pay such additional Costs when invoiced therefor.
6.2 Reimbursement for Legal Costs. Responsible Paying Party acknowledges that, as a result of iDS’s involvement in the mediation, arbitration, litigation, regulatory investigation or other dispute proceeding for which Services are being provided, third parties (including any opposing or interested party in such matters) may subpoena iDS or use other legal processes to obtain documents or testimony from iDS regarding the Services provided and/or the Confidential Information provided to iDS by Firm or Client. The reasonable professional time and/or legal expenses incurred by iDS in responding to such legal processes shall be added to the Costs for the Services, and the Responsible Paying Party shall pay such additional Costs when invoiced therefor.
6.3 Notification and Opportunity to Object. In the event that iDS receives any third-party claim under Section 6.1, or any legal process under Section 6.2, iDS shall promptly notify the Client and Firm. To the extent reasonable and at Responsible Paying Party’s expense, iDS shall assist Firm and Client in responding to such claim or legal process, including through objections and motions to quash.
6.4 Limitation on Liability. The Parties shall not be liable to each other under the Engagement (a) for any consequential, incidental, special or punitive damages, or (b) in excess of the Costs actually received by iDS.
6.5 During the term of the Engagement and for one (1) year thereafter, iDS shall at all times maintain, at iDS’ sole cost and expense, the following coverage: (a) commercial general liability insurance, including contractual liability, in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate; (b) workers compensation and employers’ liability insurance in the amount of $500,000; (c) umbrella liability insurance in the amount of $5,000.000 per occurrence and in the aggregate, and (d) professional liability insurance, including errors and omissions and cyber liability, in the amount of $5,000,000 in the aggregate. iDS shall notify Client in writing at least thirty (30) days prior to the cancellation of any policy, or in the event of cancellation due to non-payment of premium, at least ten (10) days prior to such cancellation.
7.1 The Engagement shall commence upon full execution of the Engagement and continue until (a) terminated by any Party, for any reason, upon 7 days prior written notice to the other Parties, or (b) the event of bankruptcy of any Party (collectively, “Termination”).
7.2 Upon Termination, Firm or Client shall provide iDS written instructions on the disposition of all of Confidential Information in iDS’s possession or custody. Upon request, iDS will send Firm or Client the estimated Costs for such disposal. iDS shall follow Firm’s or Client’s instructions unless otherwise required by law, subpoena, court order or other legal hold, and the Responsible Paying Party shall bear all reasonable costs of disposition as specified in the Fee Schedule. Notwithstanding the foregoing, iDS shall not be obligated to transfer or deliver any Confidential Information unless all undisputed Invoices have been paid. If Firm or Client does not provide such written instructions within 60 days after a Termination, iDS may send Firm or Client a written notice of the obligation to do so. If Firm or Client does not provide such instructions within 30 days of receiving such notice, iDS may dispose of all applicable Confidential Information in a manner that complies with the confidentiality obligations of the Engagement. In such an event, Firm and Client waive all claims of liability that may be asserted against iDS for such disposal, unless such disposal results in the violation of the Engagement. iDS may retain its case information related to the Engagement (such as generated reference and research materials) according to its internal retention schedule, provided that iDS will not retain any materials containing, referencing, or derived from Confidential Information without Firm’s or Client’s express written consent, which consent shall not be unreasonably withheld.
7.3 iDS’s determination of conflicts is based on the substance of the work performed as opposed to the parties involved. iDS may provide Services to any other party, including parties who have disputes with or interests adverse to Firm or Client, without notice to Firm; provided, however, that during the Engagement, iDS shall not provide Services to any other party relating to the subject matter of the Engagement without Firm’s and/or Client’s written consent. Firm shall not use the fact of a Project Consulant’s, Expert’s, or iDS’ current or previous engagement in other matters as a means of enhancing or diminishing such Consultant’s, Expert’s, or iDS’ credibility.
7.4 No Party shall be liable for any delay or failure to meet its obligations pursuant to the Engagement due to circumstances beyond its reasonable control, including but not limited to any acts or omissions of any government or governmental authority, acts of terrorism or public enemy, war, riots, insurrection, civil commotion, delays in transportation or deliveries of supplies or materials, power loss, fire, flood, storm or other natural disaster, or any damage or delay which is a direct result of any such event. A Party shall promptly notify the other Parties of the occurrence of an event of force majeure.