Terms & Conditions 2023
The following iDiscovery Solutions’ (“iDS”) terms and conditions apply to the services and fees in engagement documents dated after January 1, 2023. iDS, Client, and Firm are collectively the “Parties”.
1.1 The iDS Consultant(s)’ analysis 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 an iDS Consultant, the iDS Consultant is entitled to review such statement for accuracy. In any court proceeding, the iDS Consultant(s) and/or iDS shall be entitled to object to requests by third parties to obtain information concerning material personal to the iDS Consultant(s), 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 iDS Consultant(s) shall use best efforts to protect Client’s interests consistent with the need to protect the iDS Consultant’s and/or iDS’ personal and proprietary information and comply with all confidentiality obligations.
1.2 The Services are being done for and under the direction of Authorized Party and, accordingly, are part of 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 Costs (each, an “Invoice”) to any contacts identified as “Included in Invoice Submission” in Section I. Invoices will be sent via electronic mail. Responsible Paying Party or Parties 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 Responsible Paying Party or Parties receipt of the Invoice. 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 or Parties.
2.2 The Responsible Paying Party or Parties shall pay the undisputed portion of any Invoice within 30 days of the receipt. If the Client is the Responsible Paying Party or Parties, Firm (if applicable) shall make reasonable efforts to facilitate the Client’s payment. 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 due under Section 2.4(a) which is not timely paid by the Responsible Paying Party(s).
2.3 In the event any undisputed portion of Invoices remain unpaid after 45 days from the Responsible Paying Party or Parties receipt, iDS may send written notice to all Contacts from Section 1 herein, 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.
3.1 Any controversy, dispute or claim of whatever nature arising out of, in connection with, or in relation to the interpretation, performance or breach of this Engagement 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. This Engagement shall be governed by the laws of Washington, D.C., which shall be the exclusive venue for any arbitration hereunder.
4.1 The Parties acknowledge that during the term of this Engagement each of them (the “Receiving Party”) may come into possession of or become acquainted with certain confidential and/or proprietary information (“Confidential Information”) of the other Party (the “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 and materials (including ESI) 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 this 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 this 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 The Receiving Party shall only disclose the 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 this Engagement, and the Receiving Party shall be responsible for such recipients’ care and use of such Confidential Information. The 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 this Engagement, no Party will: (a) make any use of the other Party’s Confidential Information for its own benefit; or (b) acquire any right in or assert any lien against the other Party’s Confidential Information or permit any third party to do so. The Receiving Party will immediately notify the Disclosing Party in the event of any known disclosure, loss, or use of the Disclosing Party’s Confidential Information in violation of this Engagement.
4.3 Notwithstanding the above section, the Receiving Party may disclose the Disclosing Party’s Confidential Information (a) upon the 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.
5.2 “Firm/Client IP” encompasses all information and materials that Firm or Client provides to iDS under this 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 this 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
5.4 Licensed Software if (a) iDS notifies Firm of a demonstrable violation of the terms of this Engagement (other than a violation of Section 3.4) 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 3.4. Client acquires no intellectual property or other rights to such Licensed Software, or any derivatives thereof through use hereunder.
5.5 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.
5.6 Subject to Article 4, and solely for the purpose of this Engagement, Firm and/or Client hereby grants to iDS a royaltyfree right to access, store, reproduce, display, handle, perform, transmit, test, or otherwise use all information and materials that Firm and/or Client provide to iDS. iDS shall not access, store, reproduce, display, handle, perform, transmit, test or otherwise use any electronically stored information (“ESI”) or any other information provided by Firm or Client for any purpose other than to provide the Services. By providing information and materials to iDS, Firm or Client (as applicable) warrants that: (a) it has a good faith belief that iDS may access, store, reproduce, display, handle, perform, transmit, test or otherwise use such materials consistent with all applicable laws, regulations, and statutes, including but not limited to the Health Insurance Portability and Accountability Act of 1996 and the GrammLeach-Bliley Act; and (b) the provision of such information or materials 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.
5.7 Firm and Client specifically accept the risk of loss to or corruption of any ESI that is the subject of the Services.
INDEMNIFICATION, LIABILITY AND INSURANCE
6.1 The Responsible Paying Party or Parties shall indemnify and hold iDS harmless from and against all losses, liabilities, costs, damages, and expenses incurred by iDS as a result of a claim, demand, subpoena, cause of action, or other legal process related to (a) the performance of Services by iDS, or (b) any Confidential Information of Firm or Client. Without limiting the foregoing, in the event that the iDS Consultant(s) or iDS is requested pursuant to subpoena, court order or other legal process to produce any documents or provide testimony related to the performance of the Services, other than as included in the Services, the Responsible Paying Party or Parties shall pay iDS for all professional time and expenses incurred in preparing for and responding to requests for documents or providing testimony in accordance with the Fee Schedule or applicable statutory rates.
6.2 The above section shall not apply to the extent that such losses, liabilities, costs, damages, and expenses incurred by iDS are caused by (a) the gross negligence or willful misconduct of iDS, or (b) iDS’ violation of this Engagement.
6.3 The Parties shall not be liable to each other under this Engagement for any consequential, incidental, special or punitive damages; nor shall iDS be liable to Firm or Client, in any form, in excess of the Costs actually received by iDS.
6.4 During the term of this 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 $2,000,000 per occurrence and $5,000,000 aggregate; (b) workers compensation and employers’ liability insurance in the amount of $500,000; and (c) professional liability insurance, including errors and omissions and cyber security, in the amount of $5,000,000. 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 Conflicts & Other Clients. 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 this Engagement, iDS shall not provide Services to any other party relating to the subject matter of this Engagement as set forth in Exhibit B without Firm’s and/or Client’s written consent. Firm shall not use the fact of iDS Consulant(s) or iDS’s current or previous engagement in other matters as a means of enhancing or diminishing iDS Consulant(s) or iDS’s credibility.
7.2 Disposition of Confidential Data. Upon Termination, Firm shall provide iDS written instructions on the disposition of all of Firm’s and/or Client’s Confidential Information in iDS’s control. Upon request, iDS will send Firm the estimated Costs for such disposal. iDS shall follow Firm’s instructions unless otherwise required by law, subpoena, court order or other legal hold, and the Responsible 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 does not provide such written instructions within 60 days after a Termination, iDS may send Firm written notice of Firm’s obligation to do so. If Firm 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 this 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 this Engagement. iDS may retain its case information related to this 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 express written consent, which consent shall not be unreasonably withheld.
7.3. Force Mjeure. No Party shall be liable for any delay or failure to meet its obligations pursuant to this 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.
7.4. Costs of Enforcement. 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.