HomeMy WebLinkAboutAgreement LexisNexisKittitas County
Review Form
Grants & Contract Agreement
Today's Date
06/to/2020
Agenda Date
June 16,2020
Fund/Department
30 / Sheriff
Contra rant lnformation
Financial lnformation
B lnformation
Pass Throu lnformation
Contract /GrantAgency: Lexis Nexis
Period Begin Date: Upon signature.Period End Date: 04/30/202I
Total Grant/Contract Amount: SgZl.OO/month (53,92 4/Vearl
Grant/Contract Number: SH20-016
Contract/Grant Summary: Lexis Nexis has been the jail's source/provider of legal research materials via
their online platform for a number of years. Prior to the online platform, the Prosecutor's Office
supplied hard copy legal materials to the jail for the inmate's use. The Prosecutor's Office paid for the
Lexis Nexis subscription when the online platform became available. As the Prosecutor's Office is no
longer providing the jail with hard copies, nor are they an administrator for the jail's terminal, the jail is
going to assume the Lexis Nexis contract from them. For the current contract, funds will be moved from
the PAO budget to the Sheriff's budget. The Sheriff's Office will budget for the subscription hereafter.
Total Amount 5327.00/month State Funds S0 Federal Funds S0
Percentage County Funds 0%Matching Funds S0 CFDA# NA
ln-Kind S0
Expl ai n
ls Equipment being purchased? NO Who owns equipment?
New Personnel being hired? NO Contact HR hiring - reporting requirements
Future impacts or liabilityto Kittitas County: County is subjectto contract compliance requirements
Budget Amendment Needed?
New Division Created?
Yes I attach budget form No E Why not -
Revenue Code
Expense Code 001-300754915
Agency to Pass Through NA
Amount to Pass Through So
Sub-Contract Approved Date
Grant/Contract Review Page L
Prosecutor Review
Has the Prosecutor reviewed this a ment?Yes No CAMAS# 49271
Cou De rtments lmpacted
Submitted
Auditor Facilities Maintenance
lnformation Services Human Resource
Prosecutor X Treasurer
Signature: U4* /2ry/<Date: 6 *tt "lara
Department: S6eriff
-
Assi ment of Tracki lnformation
Auditor's Office
Human Resource
Prosecutor's Office FZagtV e"lr "/7tt-t
Who Signed the grant application
Reviewer Date
Grant/Contract Review Page 2
Sharrie McPherson
From:
Sent:
To:
Cc:
Subject:
Request for Budget Transfer
no- reply@ co.kittitas.wa.us
Wednesday, June 1 0,2020 9:37 AM
Clay Myers
Sharrie McPherson
New request for Budget Transfer
Sharrie McPherson has creaded a request for a budget transfer. The details are shown below
Please visit the budqet center paqe to save your decision.
From: Sharrie McPherson
Department #: 30-BT-2003
Date: 6/10/2020 9:36:50 AM
Transfer #: 202006003
Requested amount: 2289
Reason for transfer: The Sheriffs Office is taking over the Lexis Nexis agreement from
the Prosecutor's Office for the online legal research materials that
the inmates can access from a monitored computer terminal at the
jail. The Sheriffls Office did not budget for this expense, so it has
been agreed that money can be moved from the PAO budget to
the SO budget for the remaining months of the 2020 subscription.
The SO will budget for the subscription hereafter.
From: Fund GL Code Description
oo1 3007s4915 9o,tP software
uuoscnp.
Total:
To: Fund
001
Total:
GL Code
290
Description
Amount
$2,289.00
$2,289.00
Amount
$2,289.00
$2,289.00
View transfer request
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1
O* LexisNexis.
El sLGovt
RENEW YOUR LEXISNEXIS@ PRISON SOLUTION
ORDER NOW BY SIGNING THIS LETTER AGREEMENT
Thank you for using LexisNexis as your provider of legal research materials for correctional facilities. We are dedicated
to giving you efficient and cost-effective solutions, including the Shepard3@ Citations Service.
Currently you are using the LexisNexis services pursuant to the Prison Solution Order (the "Order") that allows you to
use selected information relevant to your needs in exchange for a fixed monthly commitment. The Order offers you
access to comprehensive content and ease-of-use. However, your LexisNexis service under this Order will expire soon,
By signing below, you may extend the term for the following period at the monthly commitment rate indicated below:
Customer Name:Kittitas Cou nty Corrections Account Number:1000s0EK6
Extension Period Monthly Commitment
Beginning
Beginning
Beginning
slLol2o2o to
to
to
4130l2O2L $ 327.OO
$
$
Customer hereby certifies that they have _number of terminals
This letter agreement shall also serye as your acceptance of the new General Terms & Conditions for Use of the Online
Services effective September L, 2OLO set forth at www.lexisnexis.com/terms/general,
These changes will be effective on 4llll9. Except as expressly stated above, all otherterms of the Orderwill remain
unchanged and unaffected by this letter agreement,
If you have any questions about your new rate or would like to see a comparison of other pricing options, please
contact me/ your account representative, at:
Chris Conner
Cl ient M g r--Corrections
O: 937-247 -8115
Toll Free: 866 293 4267
F: 866 960 2944
chris.conner@lexisnexis.com
If you agree with the new monthly commitment and extended term, then please print this message, provide the
information requested for the total number of terminals/licenses/locations then sign and date. Upon completion,
return the signed letter agreement to me at the fax number listed above. In order for these changes to be effective
on the date listed above, please sign and return this letter agreement no later than the 1st of <Select One>.
If you do not respond to this letter, please be advised that the Order will expire at the end of the current commitment
period and you will no longer receive updated materials.
Customer Name: Kittitas County Corrections
Authorized Signature:
Print Name:
Title:(!,ttr>r t< It
Date:&-{- L,te.\(t
N D : SLGovt-Ltr-ContractRenewa l- PrisonSolutionsOrder-S ID# 4815-6870-5543
fl' LeXiSNeXiS , uniteo States i T-1* worrdwide contact us It Feedback
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Terms & Conditions
Terms and Conditions of Use
January 7 ,2013
YOUR USE OF THIS VVEB SITE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY
THESE TERMS AND CONDITIONS OF USE.
This web site, including all of its features and content (this "Web Site") is a seruice made
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or otherwise, under any law (whether common law or statutory law), rule or regulation
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wikis, bulletin boards, discussion boards, chat rooms, email forums, and question and
answer features (the "lnteractive Areas"). You granl to Provider an irrevocable, non-
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on its behalf any ideas, expression of ideas, text, graphics, messages, blogs, links, data,
information and other materials you submit (collectively, "Postings") to this Web Site. Sa:d
license is without restrictions of any kind and without any payment due from Provider to you
or permission or notification, lo you or any third party. The license includes, the right to make,
use, sell, reproduce, publish, modiry, adapt, prepare derivative works from, combine with
other works, translate, distribute -, display, pedorm and sublicense Postings- in any form,
medium, or technology now known or hereafter developed.
4.3. You certify and warrant that the Postings: (i) are your original works or that the owner of
such works has expressly granted to Provider a perpetual worldwide royalty-free irrevocable,
non-exclusive license for said works with all of the rights granted by you in section 4.2 of
these Terms of Use and (ii) do not vlolate and will not vlolate the rights of any lhird party
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right or any proprietary right.
Ag.eefrent for PCLaw,O
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Library Ie.nts and
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may be included in the lnteractive Areas, including with your Postings. lf you have not
submitted a photo then Provider may,
image with your Postjngs. You hereby
the lnteractive Areas.
but is not obligated to, display a stock photo or legat
mnsent to the use of such stock photos or images in
4.6. By submittjng Postings to this Web Site, you acknowledge and agree thal provider may
create on its own ideas that may be, or may obtain submissions that may be, similar or
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for any alleged or actual lnfringement or misappropriation of any proprietary or olher right in
the Postings you provide to Provider.
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and deliver any and all instruments required to transfer legal ownership of postings to
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executed by you.
4.8. Additional lntellectual Property Terms for Ask A Lawyer
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in Ask A Lawyer ("AAL") agree that their Postings, and all inteltectual property rights therein,
including, without limitation, all copyrights and moral rights, (collectively, "lP Rights") will be
owned exclusively by Provider. You agree that Provider has commissioned you to provide
such Postings, and thal the Postings are works made for hire. To lhe extent ownership of
Your Postings does not vest in Provider as a work made for hire, you hereby assign to
Provider all lP Rights in and to the Postings. You also agree to prompily execute,
acknowledge, and deliver to Provider any addilional assignments or olher documents that
may be reasonably requested by Ptovider to effectuate the intent of the foregoing sentences.
You acknowledge and agree thal Provider, its parent and affiliated companies and their
licensees and assigns, may use the Postings in any manner that deems appropriate without
any atlribution or payment to you of any sort. This paragraph will survive any termination of
your participation in AAL.
4.8.2 Provider granls you a nonexclusive, nontransferable limited license to use your
Postings within your Social Media Syndication. Your Social Media Syndication inctudes your
firm's website, blog, Facebook, Linkedln, and Twitter accounts and may include any other
appropriate social media site you use for professional purposes. This limiled license refers to
the specific content which represents the questions to which you responded via AAL and
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Q&A or other pages in AAL as designated by Provider, and
4.8.2.b. Each use of lhe Designated Content is solely for the purposes of promoting and
marketing AAL and/or your contribution of the Designated Content (collectivety the
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benefits any Provider competitor.
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Designated Content including bul not limited to Provider's positioning, messaging, and
trademark and logo usage policies, as may be cotrmunicated from time lo time; (ji) you shall
only use the Mark provided to you by Provider according to these Terms Of Use, and you will
not use any other mark without Provider's prior wrilten consent; (iii) you shall not to create
any combination mark with any Provider Mark; and (jv) you do not acquire any rights to
Provider copyrights, marks, or any other intellectual property under these Terms of Use
except the limited rights necessary to fulfill the Purpose for the service under these Terms of
Use,
4.8.3. Provider may immediately terninate, in whole or with regard to a specific use, your
license to use any Mark if Provider determjnes in its sole discretion that such use dilutes.
diminishes, or blurs the value of the any of the Marks or does not comply with p.ovideas
usage policies. Upon Provider's request you agree to remove the Designated Content, Marks
and Links within 14 days of Provider's notice to you.
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promotional materials includlng your firm name, personal name, trademarks, service marks,
logos, image, and photos, for the purpose of promoting the lnteractive Areas of lhis Web
Site.
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has registered an agent with the United States Copyright Office in accordance with the terms
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Act. Provider reserues the right to remove any Content that allegedly infringes another
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your own web site's URL and b) may recomtnend third parly web sites, goods or services so
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without permission from you.
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applicable registration page for your participation in any of the lnteractive Areas allows you to
create a screen name, you may also select and use an appropriate screen name that is not
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in I nteractive Areas shall not misrepresent their idenlity or their affiliation with any person or
entity.
'10.3. Postings shall not contain protected health information. You are stricuy prohibited from
submitting Postings that are considered protected health information under the Health
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Technology for Economic and Clinical Health Act of 2009 (HITECH).
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and is not responsible for the mntent in such Postings or any content linked to or from such
Postings. Provider however reserves the right, in its sole discretion, to monitor lnteractive
Areas, screen postings, edit Postings, cause Postings not to be posted, published, uploaded
or distributed, and remove Postings, at any time and for any reason or no reason.
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defects will be corrected or that it will always be accessible. Provider does not warrant or
represent that the Content or Postings available on or through this Web Site will be correcl,
a€u.ate, timely, or olheMise reliable. Provider may make improvements and/or changes to
its features, lunctionality or Content or Postings at any time.
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the beliefs and opinions of Provider.
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as resignation or other Ioss of license, d) you acknowledge that the Rules of professional
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participation and that you will abide by these Rules. These Rules include, but are not limited
to, the rules relating to advertising, solicitation of clients, rules regarding the establjshment of
attorney-client relationships, failure to maintain client confidences, unauthorjzed practice of
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'14. Additional Terms forAttorney's Pariicipating in AskA Lawyer
1 4.1 . You ag.ee that your participation is as an unpaid, volunteer, and that the purpose of
such participation is to provide public education on legal maters and to provide you and your
llrm national exposure. You may terminate your participation in AAL at any time for any
reason or no reason by providing Provider with notice of termination at least three days prior
to the effective date of termination at mhcr@martindale.com.
'l 4.2. Your name will be associated with each of your Postings in AAL when one of your
Responses is included in the "Most Recent Q&A" section ofAAL. Each question and
corresponding Response may be archived and searchable on AAL and in other site searches
associated with Lawyers.com and Provider's media outlets. Visitors currently have the ability
to view these archives, but such public access to the archives is not guaranteed. Provider, at
its discretion, may associate your name with your archived Responses; however Provider is
not required lo do so.
14.3. You are prohibited from responding to questions via personal and professional email,
telephone or otherwise. You will not directly contact visitors who post questions on ML prior
to posting your response on AAL and any contact should be in compliance with attorney
ethics requirements. All Responses must be submitted through the Administrative Page.
14.4. You represenl and warrant to Provider that (a) you will perform your duties for the Ask a
Lawyer seruice in a highly professional manner, (b) except for public domain materials, your
Responses will not infringe any third party rights, (c) your Responses will be your originat
work not prevlously published and will not contain libelous, obscene, or unlawful material, (d)
the Responses will not invade anyone's privacy rights, and (e) your participation in the Ask a
Lawyer seryice presents no conflicts of interest for you, and You assume all liability for any
claims, suits, or grievances filed against you, including any and all damages related, due to
your participation as a National Atlofl]ey Panelist.
1 5. Assumption of Risk. You assume all liabilily for any claims, suits or grievances filed
against you, including all damages related to your participation in any of the lnteractive
Areas.
'16, DISCLAIMER. THIS WEB SITE, THE INTERACTIVE AREAS, THE CONTENI AND
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INJURY CLAIIVI, LIABILITY, OR DAMAGE OFANY KIND RESULTING FROM,ARISING
OUT OF OR ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS FROM f HIS
WEB SITE, THE INTERACTIVE AREAS, THE CONTENT, AND THE POSTINGS
INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES AND
TYPOGRAPHICAL ERRORS, (B) THIRD PARTY COMMUNICATIONS, (C) ANY THIRD
PARTY WEB SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED
THROUGH LINKS IN THIS WEB SITE, INCLUDING BUT NOT LIMITED TO ANY ERRORS
IN OR OMISSIONS THEREFROM, (D) THE UNAVAILABILITY OF THIS WEB SITE, THE
INTERACTIVE AREAS, THE CONTENT, THE POSTINGS, OR ANY PORTION THEREOF,
(E) YOUR USE OF THIS WEB SITE, THE INTERACTIVE AREAS, THE CONTENT, OR THE
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WTH THIS WEB SITE, THE INTERACTIVE AREAS, THE CONTENT. OR fHE POSTINGS.
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OF THIS WEB SITE, THE CONTENT, THE POSTINGS, THE INTERACTIVE AREAS, ANY
FACTS OR OPINIONS APPEARING ON OR THROUGH ANY OF THE INTERACTIVE
AREAS, ORANYTHIRD PARTY COMMUNICATIONS, PROVIDER SHALL NOT BE LIABLE
FORANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES OF ANY KIND \^/I_1ATSOEVER (INCLUDING, WTHOUT LIIVlITATION,
ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, ORARISING IN
CONNECTION WTH THE USE OF OR INABILITY TO USE THIS WEB SITE, THE
INTERACTIVE AREAS, THE CONTENT, THE POSTINGS, OR ANY THIRD PARTY
COMMUNICATIONS. fO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS
PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, PROVIDER'S SOLE OBLIGATION
TO YOU FOR DAMAGES SHALL BE LIMITED TO $1OO.OO.
18. lndemnifi€tion. You ag.ee to indemnify, defend and hold Provider, its officers, directors,
employees, agents, ljcensors, suppliers and any lhird party information providers to this Web
Site harmless from and against all claims, losses, expenses, damages and costs, including
reasonable attorneys' fees, resulting from any violation of these Terms of Use by you or
arising from or related to any Postings uploaded or submitted by you.
19. Third Party Rights. The provisions ofparagraphs 14 (Disclaimer), 15 (Limitation of
Liability), and I 6 (lndemnification) are for the benefit of Provider and its officers, directors,
employees, agents, licensors, suppliers, and any third parly information providers to this Web
Site. Each of these individuals or entities shall have the right to assert and enforce those
provisions directly against you on its own behalf.
20. Unlawful Activityt Termination ofAccess. Provider reserues the right to investigate
complaints or reported violations of our Terms of Use and 10 lake any action we deem
appropriate including but not limited to reporting any suspected unlaMul activity to law
enforcement officials, regulators, or other third parties and disclosing any information
necessary or appropriate to such persons or entities relating to user proflles, e-mail
addresses, usage history, posted materials, lP addresses and traffic information. Provider
may discontinue any pariy's participation in any of the lnteractive Areas at any time for any
reason or no reason_
21. Remedies for Molations. Provider reserves lhe right to seek all remedies available at law
and in equity for violations of these Terms of Use, including but not limited to the right to
block access from a particular internet address to this Web Site and any other Provider web
sites and their features.
22. Governing Law and Jurisdiction. The Terms of Use are governed by and construed an
accordance with the laws of the State of New York and any action arising out of or relating to
these lerms shall be filed only in state or federal courts located in New York and you hereby
consent and submit to the personal jurisdiction of such courts for the purpose of litigating any
such action.
23. privacy. Except with respect to Martindale-Hubbell Connected, your use of this Web Site
is subject to Provideds Privacy Policy. Wth respect to Martindale-Hubbell Connected, your
use of such Web Site is subject to this Privacy Policy.
24. Additional Terms for LexisNexis Seruices. Your use of the LexisNexis Online Seruices,
case law legal forms and other related legal materials ("LexisNexis Seruices") is also
governed by the General Terms and Conditions for Use of the LexisNexis Services, and if
applicable the LexisNexis Services SupplementalTerms for Specific Materials, (coltectively
the "Provider Services Terms") which are provided during the rcgiskation process foa these
LexisNexis Seruices, all of which are incorporated by reference herein. Your completion of
the LexisNexis Seruices registration process constitutes your acceptan€ of lhe provider
Seruices Terms. lf you do not agree with any Provider Seruices Terms, you are not permitted
to access lhe LexisNexis Services.
25. Severability of Provisions. These Terms of Use incorpotate by reference any notices
contained on this Web Site, the Privacy Policy and the Provider Services Terms and
constitute the entire agreement with respect to access to and use of lhis Web Site, the
Interactive Areas, and the Content and Postings. lf any provision of lhese Terms of Use is
unlaMul, void or uneniorceable, or conflicts with lhe Provider Servic€s Terms then that
provision shall be deemed severable from the remaining provisions and shall not affect their
validity and enforceability. Notwithstanding anything to the contrary in these Terms of Use, if
you have a separate signed written agreement with a Provider lhat applies to your use of any
of that Provider's Content, that agreement constitutes the entire agreement between you and
that Provider with respect to the affected Conlent subject thereto (the "Otheruise Covered
Content"), and these Terms of Use shall be treated as having no force or effect with respect
to the Otherwise Covered Content.
26. Modifications to Terms of Use. Provider reserves the right to change these Terms of Use
al any time. Updated versions of the Terms of Use will appear on this Web Site and are
effective immediately. You are responsible for regularly reviewing the Terms of Use,
Contjnued use of this Web Site afler any such changes constitutes your consent to such
changes.
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Lexisnexis@ Professional Services Agreement
This Professional Services Agreement (the "Agreement"), effective as of
("Effective Date"), is entered into by and between LexisNexis, a division of RELX lnc- a
lvlassachusetts corporation havlng its principal place of business at 1 25 park Avenue, 23rdFloor,NewYork,NY10017(..company'')'and-haVingitSpfincipalplaceof
business at _ ("Client"). ln mutual consideration of the mutual promises set
forth in this Agreement, the parties agree as follows:
1. Services
'1.1 Scope of Services. Subject lo the terms and conditions of this Agreement, Company will
perform those seruices ("Services") with respect to the Company products separately
purchased by Client ("Company Commercially-Available Software") as set forth in one or
supplemental document(s) ("Seruice Specs"), attached hereto as Exhibit A and as amended
and/or supplemented from time to time by the mutual written agreement of the parties and
incorporated herein by reference. A Seruice Specs will be, at a minimun, a written document
that (i) references this Agreement, (ii) describes the Services to be perlormed (and if said
Services shall include lhe creation of object code, such object Code is defined herein as
"Deliverable"), (iii) specifies the corresponding rate schedule or other fee information, and (iv)
is signed by both parties or is issued by one parly and signed by the other party. Company
will use commercially reasonable efforts to complete the Seruices by the applicable dates set
forth in lhe attachment ("Target Dates").
1.2 Change Orders. Any changes to the scope of the Services must be made in writing and
signed by bolh parties ("Change Order") or if the Change Order is made via email to the
other party's designated contact person, the receiving party will have five business days to
reject the Change Order. lf said rejection is not made within the 5 business day period, the
Change Order is deemed mutually accepted. Each accepted Change Order will be
incorporated herein by reference and subject to the terms and conditions of this Ag.eement.
2. Client Duties and Responsibilities
Client will make available in a timely manner for Company's use, at no charge to Contpany,
all technical data, computer facilities, programs, files, documentation, test data, sample
output, or other information, resources, and personnel required by Company as set forth in
the applicable document for the performance of the Services. Client will be responsible for,
and assumes the risk of any issues or problems resulting from the content, accuracy,
completeness, competence, or consistency of all Client computer facilities, programs, files,
documentation, test data, sample output, or other information, resources, and personnel
supplied by Client. Client will provide, at no charge to Company, reasonable oflice space and
equipment at Client's facilities (such as copiers, fax machines and modems) as Company
requires in performing the Seruices.
3, lnterd6pendencies; Client and Third Party Delays
Client acknowledges that meeting the Target Dates is contingent upon timely completion of
activities by Client as contemplated by the parties under this Agreement including, without
limilation, those activities designated to Client in Article 2 above and/or in the applicable
Service Specs document ("Client Obligation"). Client will immediately advise Company in
writing as soon as it becomes aware of any developments that may delay completion of a
scheduled Deliverable including, wilhout limitation, Client's failure or inability to perform a
Client Obligation. The Target Dates (though only an estimate) will be equitably adjusted by
the parties (bui in no event less than a day-for-day adjustment) in wrjting in the event of: (a)
any delay caused by Clients failure or inability to perform a Client Obligation; (b) any delay
due to Client's request for changes (whether pursuant to a Change Order or otheMise); (c)
any delay due to a third party's act, failure to act or delay in performing any obligation
whatsoever; or (d) any other delay incurred as a result of Client's action(s) or omission(s). No
such delay will relieve or suspend Client's obligation to pay Company under Ariicle 4 and, in
addition to such payment obligations, Client will pay for any and all costs and expenses
incurred by Company relat:ng to re-staffing as a result of any delay caused by Client.
4. Fees and Payment
4.1 Fees and Expenses. Client will pay Company all fees set forth in Exhibit A ("Fees").
Such fees assume that the Seruices commence within one hundred eiqhty (1 B0) days after
the Effective Date. lf the Services do not commence on or before lhe date that is one
hundred and eighty ('180) days after the Effective Date, such fees will automatically be
adjusted to Company's then-current rates and fees for such services. Client will reimburse
Company for all reasonable costs and expenses incurred by Company in its performance of
the Services under this Agreement including, reasonable travel and lodging expenses.
4.2 Payment. Unless otherwise set forth in the applicable Service Specs, Client will make alt
payments under this Agreement in U.S. dollars within thirty (30) calendar days after the date
of Company's invoice. ln addition to any other remedy available to Company for late
payments, Clienl will be obligated to pay Company interest on the overdue amount at the
rate of one and one half percent (1.5olo) per month or the maximum rate allowed under law,
whichever is less, for each month, or parlial month, calculated from the date such payment
was due until the date paid, Client will reimburse Company for all costs incurred by Company
(including reasonable attorneys' fees, collection fees, court costs, if any) in connection with
any collection efforts related to or arising out of this Agreement.
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4.3 Taxes. The Fees for the Services do not include any excise, sales, use, value added or
other taxes, tariffs or duties that may be applicable to the Services. When Company has the
legal obligation to collect such taxes, lariffs or duties, the amount of such taxes, tariffs aDd
duties will be anvoiced to Client, and Client will pay such amount unless Client provides
Company with a valid tax exernption certificate authorized by the appropriate taxing authority.
All payments by Client for the Seruices will be made free and clear of, and without reduction
for, any withholding taxes. Any such taxes which are otherwise imposed on payments to
Company will be Client's sole responsibilily. Client wil! provide Company with official receipts
issued by the appropriate taxing authority or such other evidence as is reasonably requested
by Company to establish ihat such taxes have been paid.
5. Term and Termination
5.1 Term. The term of this Agreement will commence on the Effective Date and will continue
in effect unless earlier terminated pursuant to lhe terms of this Agreement.
5.2 Termination for Convenience. Either party may terminate this Agreement upon sixty
(60) calendar days'written notice. Unless otheMise agreed by the parties, tennination
pursuant to thls Section 5.2 will not relieve Company of its obligations under any open
Service Specs, which obligations will continue to be goveflred by this Agreement.
Termination pursuant to this Section 5.2 will not relieve Client of its obligation to pay for any
Services or expenses performed pursuant to any Seruice Specs.
5.3 Termination for Cause. Either party may terminate this Agreement upon written nofice if
the other party has materially breached any provision of this Agreement and has not cured
such breach within thirty (30) calendar days after receivinq written notice from the Don-
breaching party describing such breach in reasonable detail and stating the non-breachlng
party's intent to terminate this AOreement.
5.4 Suspension of Seruices. Notwithstanding any other provision of this Agreement,
Company may, in its sole discretion, suspend Services and the delivery of a Deliverable if:
(a) Clienl materially breaches any of its obligations under this Agreement including, without
limitation, failure by Client to pay any amount under this Agreement within thirty (30) days
after the date of Company's invoice therefor; or (b) Company determines that Client may be
unable to make any scheduled or expected payment. Any such suspension by Company: (i)
will not constitute termination of this Agreentent or any Service Specs (and Client will
continue to be bound by its obligations under this Agreement); (ii) will be deemed to modib/
the Target Date outward to the same edent as the period of delayed payment, performance
or other material breach, without penalty to Company; (iii) will entitle Company to
reimbursement by Client for any and all costs and expenses incurred by Company in
connection with any such suspension: and (iv) may be cancelled or revoked in Company's
sole discretion. Wthout limiting the foregoing, any such suspension will be considered a
delay caused by Client pursuant to Article 3.
5.5 Return of Materials. Upon any expiration or lermination of ihis Agreement, except as
necessary to exercise the rights granted by Company to Client pursuant to Section 7.2, each
party will return promptly or, at the other party's request, destroy all documents and other
tangible objects containing or representing Confidential lnformation of the other party except
to the extent that such documents must be retained to satisfy auditing or regulatory
requirements. lf requested by the other party, each party will provide the other party with
written certification of compliance with the foregoing obljgations under this Section 5.3.
5.6 Suruival. Notwithstanding any expiration or termination of this Agreement, all payment
obligations incurred prior to expiration or terminatiou will survive, and lhe following provisions
will survive: Articles 4, 6, 7, I and 10, and Sections 5.5, 5.6 and 8.2. All other rights granted
under this Agreement will cease upon expiration or termination of this Agreement,
6. Confidential lnformation
6.1 "Confidential lnformation" means any information disclosed under this Agreement by
either parly ("Disclosing Party") to the other party ("Receiving Party") that: (a) is in written,
graphic, machine readable or other tangible fornt and is marked "Confidential," "Proprietary"
or in some other manner to indicate its confidential nature; (b) oral information disclosed by
the Disclosing Party to the Receiving Party pursuant to this Agreement, provided that such
information is designated as confidenlial at the time of disclosure and reduced to a written
summary by the Disclosing Party, marked in a manner to indicate its confidential nature and
delivered to the Receiving Par{y within ten (1 0) calendar days after its oral disclosure; and (c)
information otheruise reasonably expected lo be treated in a confidential manner under the
circumstances of disclosute. Notwithstanding the foregoing, the following information will be
deemed the Confidential lnformation of Company whether or not so designaled upon
disclosure or confirmed in writing: (i) Company pr:cingi (ii) Company Pre-Existing Technology
and Company Work Product (both defined in Section 7); and (iii) any know-how, des:gns,
layouts, configurations, methods, processes, formulae, specifications, functionality,
performance data, test results or error or bug information provided by Company to Client
under this Agreement or otheMise obtained by Client from use or examination of the
Deliverables. Confidential lnformation may also include information of a third party that is in
the possession of lhe Disclosing Party and is disclosed to the Receiving Party under this
Agreement. Confidenlial lnformation w:ll not include any information that: (1 ) was publicly
known and made generally available in the public domain prior to the time of disclosure by
the Disclosing parly; (2) becomes publicly known and made generally available after
disclosure by the Disclosing Party to the Receiving Party through no aclion or inaction of the
Receiving Pa.ty; (3) was already in the possession of the Receiving Party without
confidentiality obligations at the time of disclosure by the Disclosing Party as shown by the
Receiving Parly's files and records immediately prior to the lime of disclosure; (4) is obtained
without confidentiality obligations by the Receiving Party from a third parly without a breach
of such third party's obligations of confidentiality; or (5) is independently developed by the
Receiving Party without use of or reference to the Disclosiug Party's Confidential Information.
6.2 Non-Use and Non"Disclosure. The Receiving Parly will use the Disclosing Party's
Confidential lnformation solely for the purposes of performing ils obligations and exercising
its righls under this Agreement. The Receiving Party will not disclose any Confidential
lnformation of the Disclosing Party to third parties or to such party's employees, except that,
subject to Section 6.3 below, the Receiving Party may disclose the Disclosing Party's
Confidential lnformation to those employees and contractors of the Receiving Party who are
required to have the information in order to perform Receiving Party's obligations and
exercise the Receiving Party's rights under this Agreement, provided however that such
employees or contractors are subject to a conlidentiality agreement with terms no less
restriclive than those contained herein. lf the Receiving Party is required by law to make any
disclosure that is prohibited or otheMise constrained by this Agreement, the Receiving party
will provide the Disclosing Party with prompt wr:tten noti€ of such requirement prior to such
disclosure so that the Disclosing Party may seek a proteclive order or other appropriate
relief. Subject to the foregoing sentence, the receiving party may furnish that portion (and
only that portion) of the Confidential lnformation that it is legally competled or is otheMise
legally required to be disclosed; provided, however, that the Receiving Party provides such
assistance as the Disclosing Party may reasonably request in obtaining such order or other
relief at the Disclosing Party's option and expense.
6.3 Maintenance oi Confidentiality. The Receiving Party will use commercially .easonable
efforts to prevent unauthorized use or disclosure of the Disclosing party,s Confidential
lnformation. The Receiving Party will ensure that its employees who have access to
Confidential lnformation of the Disclosing Party have signed a non-use and non-disclosure
agreement in content at least as protective of the Disclosing party's Confidential lnformation
as the provisions of this Agreement prior to any disclosure of the Disclosing Party's
Confidential lnformaiion to such employees. The Receiving Party will prompfly return all
copies of the Disclosing Party's Confidential lnformation as requested by such Disclosing
Party at any lime in writing; provided, however, the parties agree that Company's continued
access to Client's Confjdential lnformation which is required for the Services will be deemed
a Client Obligation.
6.4 Authorized Disclosure. Notwithstanding any other provision of this Agreement, each
party may disclose the terms of this Agreement: (a) subject to Section 6.2, in connection with
the requirements of an initial public offering or other filing in connection with applicable
securities law; (b) in confidence, in connection with a merger or acquisition or p.oposed
merger or acqujsition, or the like: (c) in confidence, to accountants, banks, attorneys and
financing sources and their advisors; and/or (d) in confidence, in connection with the
enforcement of lhis Agreement or rights under this Agreement.
7. Proprietary Rights
7.1 Definitions of Proprietary Rights.
(a) "lntellectual Property Rights" means all curent and future worldwide patents and
patent applications (including, without limitation, all reissues, divisions, renewals, extensions,
continuations and continuations-in-part), inventions (whether patenlable or not), copyrights
(including, without limitation, rights in audiovisual works and moral rights), trade secrets,
trademarks, service marks, trade names, and all other intellectual property rights and
proprietary right, whether arising under the laws of the United States, or any other country,
state or jurisdiction.
(b) "Company Pre-Existing Technology" means any Technology (defined below) made,
conceived, or reduced to practice by Company or its contractors or agents prior to or
independently of this Agreement, and all modifications, enhancements and derivative works
thereof, including all lutellectual Property Rights in and to any of the foregoing.
(c) "Company Work Product" means any Technology made, conceived, or reduced to
practice by Company or its contractors or agents during performance of the Seruices (but
excluding all Company Pre-Existing Technology), and all modifications, enhancements and
derivative works thereof, including all lntellectual Property Rights in and to any of the
foregoing.
(d) "Technology" means all inventions (whether patentable or not), discoveries, literary
works and other works of authorship (including, wilhout limitation, sottware in object code
and source code format), designs, know-hoW ideas and inlormation.
7.2 Deliverables.
(a) Rights. Subject to the lerms and conditions of this Agreement, Company grants Client a
limited, non-transferable (subject to Section 10.8), non-sublicenseable, nonexclusive right,
under Company's lntellectual Property Rights in the Deliverables (excluding all Company
Commercially-Available Software), to USe and reproduce the Deliverables solely for Client's
internal business use in conjunction with Client's use of the Commercially-Available Software
as authorized by Company in writing and solely for so long as Client is authorized to use
such Company Commercially,Available Software. Except as expressly granted in this Article,
Company retains all right, title and interest in and to all Company Pre-Existing Technology,
Company Work Product and Deliverables, including all lntellectual Property Rights therein.
(b) Use Restrictions. Client shall not itself, or through any affiliate, agent, or third party: (a)
decompile, disassemble, reverse engineer, or otheMise attempt to (i) derive source code or
underlying ideas, algorlthms, structure or organization from the Deliverables or (ii) defeal,
avoid, bypass, remove, deactivate or otheM;se circumvent any software protection
mechanisms in the Deliverables, including without limitation any such mechanism used to
restrict or control the functionality of the Deliverables (except that the foregoing provision
shall not apply to the extent that such activities may not be prohibited under applicabte law);
(b) sell, lease, license, sublicense, dislrlbute or olherwise provide to any third party or any
other person the Deliverables, in whole or in parl; (c) modify or create derivative works of the
Deliverables; (d) use or reproduce the Deliverables, except as specifically permitted under
this Agreement; or (e) use the Deliverables to provide processing services to any third party
or otheMise use the Deliverables on a service bureau basis. Client shall not remove, alter,
cover or obfuscate any patent, copyright, trademark or other proprietary notices, labels or
marks of Company or ils licensors on or in the Deliverables, and Client shall reproduce such
notices, labels and marks on any copies of the Deliverable that Client make in connection
with Clients perntitted use of the Deliverables pursuant to Section 7.2(a). Ctient shall
promptly notify Company of any unauthorized use, disclosure, reproduclion, or distribution of
the Deliverables, which comes to Ctient's attention, or which Client reasonably suspects.
Client is solely responsible for obtaining all equipment, and the compatibility thereol with the
Deliverables, and for paylng all fees including, without limitation, all taxes and any related
costs or fees, necessary to use the Deliverables.
7.3 Client Materials. Subject to the terms and conditions of this Agreement, Client grants
Company and its contractors and agents a limited, nontransferable (subject to Section 10.8),
fully-paid, royalty-free, non-sublicenseable, nonexclusive right during the term of this
Agreement to use, reproduce, modih/, prepare derivative works of, perform, display, transmit,
make, have made and import any pre-existing Technology provided by Client to Company or
its contractors or agents in connection with the performance of the Services under this
Agreement as necessary or useful to perform the Seruices. Except as expressly set forth in
this Arlicle 7, Client retains all right, title and interest in and to any client materials, including
all Client pre-existing lntellectual Property Rjghts.
8. Limited Warranties and Disclaimer
8.1 Limited Warranty. Wlh respect to each Deliverable, Company warrants to Client lhat,
for a period of 90 calendar days after the date of delivery of such Deliverable to Client
("Deliverable Wananty Period"), such Deliverable will substantially conlorm to any applicabte
functional specifications for such Deliverable that are described in the applicable Service
Specs or any Change Order thereto. lf any Deliverable does not perform as expressly
warranted in this Section 8.1, Client will notify Company in writing and Company will, at its
sole option and expense: (a) replace or modify such Deliverable with a Deliverable that
perfonns as expressly warranted in this Section 8.1; or (b) if Company determines that the
foregoing is not commercially reasonable, accept return of such Deliverable (if applicable)
and refund to Client the Fees paid by Client associated wilh such Deliverable under this
Agreement. The foregoing limited warranty does not cover repair or replacement of or
refunds for any Deliverable if the nonconformity to such limited waranty is caused, in whole
or in part, by; (i) alteration, moditicalion or correction other than by Company; (ii) soitware,
hardware or interfacing not provided or specified in the applicable Service Specs by
Companyi (iii) abuse, misuse or improper installat:on; or (iv) a change to Clienfs computing
environmenl that would affect the specific Deliverable. THE FOREGOING PROVISTONS OF
THIS SECTION 8.1 STATE THE ENTIRE LIABILITYAND OBLIGATIONS OF COMPANY
AND THE EXCLUSIVE REMEDY OF CLIENT, VMTH RESPECT TO ANY BREACH OF THE
LIMITED WARRANTY IN THIS SECTION 8.1.
8.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH tN SECTTON 8.1,
COMPANY DOES NOT MAKEANY OTHER REPRESENTATIONS, WARRANTIES OR
CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS.
IMPLIED, OR ARISING BY STATUTF, CUSTOM, COURSE OF DEALING OR TRADE
USAGE, WTH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, IN
CONNECTION WTH THIS AGREEMENI COMPANY SPECIFICALLY DISCLAIMS ANY
AND ALL Ii\4PLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY FITNESS
FOR A PARTICULAR PURPOSE, AND NON-INFRINGEIV]ENT. COMPANY DOES NOT
WARRANT THAT THE DELIVERABLES OR ANY SERVICES PROVIDED UNDER THIS
AGREEMENT WLL MEET CLIENT'S REQUIREMENTS, THAT THE OPERATION OF THE
DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN
THE DELIVERABLES WLL BE CORRECTED.
9. Limitation of Liability
EXCEPT FOR ANY BREACH OF ARTICLE 6 OR SECTION 7.2(b), IN NO EVENT WLL
EITHER PARTY BE LIABLE FOR ANY INDIRECI SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR COSTS OF
PRQCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING OUT OF OR
RELATED TO THISAGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR
LOST DATA, REVENUE OR PROFITS, HOWEVER CAUSED AND ARISING UNDER ANY
THEORY OF LIABILITY INCLUDING BUT NOT LIMITED TO CONTMCT OR TORT
(INCLUDING PRODUCTS LIABILITY, STRICT LIABILITYAND NEGLIGENCE), AND
WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE, IN NO EVENT SHALL COMPANY'S
AGGREGATE LIABILITYARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED
THE NET AMOUNT COMPANY HAS ACTUALLY RECEIVED FROM CLIENT UNDER THE
SERVICE SPECS APPLICABLE TO SUCH CLAIM.
10.1 lndependent Contractors. The relationship of the parties under this Agreement is that
of independent contractors. Neither party will be deemed to be an employee, agent, partner,
franchisor, franchisee nor legal representative of the other for any purpose and neither will
have any right, power or authority to create any obligation or responsibility on behalf of the
other.
10.2 Export Control. Client agrees not to export, or re-expo.t, or €use to be re-exported,
any Company materials or portion thereof, to any country which, under the laws of the United
States, Client is or might be prohibited from expotting its technology.
1 0.3 Non.Solicitation. Client acknowledges and agrees that the employees of Company
who perform the Services are a valuable asset to Company and are difficult to replace.
Accordingly, during the term of this Agreement and for a period of one (1 ) year thereafler,
Client shall not solicit, whether directly or indirectly, the entployment of any Company
employees without the prior written consent of Company. lf Client violates this Section 10.3,
the parties agree lhat Client shall pay to Company the sum of one hundred thousand dollars
($1 00,000) as liquidated damages. The parties further agree that precise monetary damages
for Client's violation of this Section 1 0.3 would be difficult to ascertain and that the foregoing
sum represents a lair and conseruative approximation of cost of recruitment, hiring and
training that would be incurred by Company.
10.4 lndependent Development. Noth;ng in this Agreement (including, without limitation, the
receipt of information under this Agreement) shall: (a) limit Company's development,
marketing or distribution of software or other technology involving any functionality or ideas,
whether similar to those disclosed by Client or otherwise; (b) limit Company from undertaking
similar efforts or discussions with third parties who may compete with Client; or (c) create
obligations binding in any way on Company limiting or restricting the assignments, activities,
or training of employees or contractors of Company.
10.5 Subcontractors. Company may, in its sole discretion, use third party contractors to
fulfil: its obligations under this Agreement.
10.6 Notices, Any notice, other than a Change Order, required or permitled under the terms
of this Agreement or required by law must be in writing and must be delive.ed (a) in person,
(b) by fi.st class registered mail, or air mall, as appropriate, posted and iully prepaid to the
appropriate address set forth in the preamble to this Agreement, or (c) via facsimite. Notices
will be considered to have been given at the time of actual delivery in person, four (4)
business days after deposit in the mail as set forth above, or upon receipt of facsimile
conlirmation. Either party may change ils address for notice by notice to lhe other party given
in accordance with this Section.
10.7 Governing Law. This Agreement will be iuterpreted and construed in accordance wilh
the laws of the State of New York, United States, without regard to conflict of laws pritrciples.
The United Nations Convention on the Sale of Goods will not be applicable to this Agreement
or any of the transaclions contemplated by the Agreement.
10.8 Assignment. Neither this Agreement nor any rights under this Agreement may be
assigned or otheMise transferred by either party, in whole or in part, whether voluntarily or
by operation of law, including by way of sale of assets, merger, consolidation or otheMise,
without the prior written consent of the other party; provided Company will have the right to
assign lhis Agreement without the prior written consenl in the evenl of a transter to a
Company affiliate. Subject to the foregoing, this Agreement will be binding upon and will
inure to the benefit of the parties and their respective successors and assigns. Any
assignment in violalion of this Section 10.8 will be null and void.
10.9 Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies
under this Agreement must be in wriljng to be effective. Failure, neglect, or delay by a party
to enforce the provisions of this Agreement or its rights or remedies at any time, will not be
construed as a waiver of such party's rights under this Agreement and will not in any way
affect the validity of the whole or any part of this Agreement or prejudice such party,s right to
take subsequent action. No exercise or enforcement by either party of any right or remedy
under this Agreement will preclude the enforcement by such party of any other right or
remedy under this Agreement or that such party is entitled by law to enforce.
10.10 Severability. lf any provision or portion thereof, of this Agreernent is found to be
invalid, unlaMul or unenforceable to any extent, such provision of lhis Agreement will be
enforred to the maximum extent permissible by applicable law so as lo affect the intent of the
parties, and the remainder of this Agreement will continue in full force and effect. The parties
will negotiate in good faith an enforceable substitute provision for any invalid or
unenforceable provision that most nearly achieves the intent and economic effect of such
provision,
1 0.1 1 Construction. lf there is a conflict belween any term in the body of this Agreement
and any term of the applicable Service Specs, the term in the body of lhis Agreement will
prevail with respect to such conflict. This Agreement and any instrument referred to herein or
executed and delivered in connection herewith, will not be construed against any party as the
principal draftsperson hereof or thereof. The section and paragraph headings used in this
Agreement are inserted for convenience only and will not affect the meaning or interpretation
of this Agreement. Unless otheruise expressly stated to the contrary herein, all remedies are
cumulative, and the exercise of any express renredy by either party herein does not by itself
waive such party's right to exercise its other rights and remedies available at law or in equity.
10.12 No Third Party Beneficiaries. The parties hereto expressly agree that there are no
third party beneliciaries of this Agreement.
1 0.1 3 Force Majeure. Neither party will incur any liability to the other party on account of any
loss or damage resulting from any delay or failure to perform all or any part of this Agreement
if such delay or failure is caused, in whole or in part, by events, occurrences, or causes
beyond the reasonable control and without negligence of the parties. Such events,
occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots,
acts of war, failures of the lnternet, earthquakes, fire and explosions, but the inability to meet
llnancial obligations is expressly excluded.
10.14 Entire Agreement. ThisAgreement (including the Exhibits and any addenda hereto
signed by both parties) contains the entire agreement of the parties with respect to the
subject matter of this Agreement and supersedes all p.evious communications,
representations, understandings and agreements, either oral or written, between the parties
with respect to said subject matter. No terms, provisions or condltions of any purchase order,
acknowledgement or other business form that either party may use ln connection with the
transactions contemplated by this Agreement will have any effect on the rjghls, duties or
obligations of the parties under, or otheMise modifr/, this Agreement, regardless of any
failure of a receiving party to object to such terms, provisions or conditions. This Agreement
may not be amended, except by a writing signed by both parties.
10.15 Execution. ThisAgreement may be executed and delivered by facsimile and the
parties agree that such facsimile execution and delivery will have the same force and effect
as delivery of an original document with original signatures, and that each party may use
such facsimile signatures as evidence of lhe execution and delivery of this Agreement by all
parties to the same extent that an original signature could be used. lN WTNESS
WHEREOF, the parties by their duly authorized representatives have executed this
Agreement as of the Effective Date.
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