Thank you for choosing the Shift on-demand ediscovery software as a service!
By creating an account and using this service, including any related services, you ("Client") agree to be bound by all the terms set forth below in the Master Services Agreement (the "Terms of Service"). Although NovitasData will attempt to notify you when major changes are made to the Terms of Service, you should periodically review the up-to-date version at http://shiftondemand.com/termsofservice. NovitasData may, in its sole discretion, modify or revise these Terms of Service at any time, and you agree to be bound by such modifications or revisions. Nothing in the Terms of Service shall be deemed to confer any third-party rights or benefits.
SHIFT SERVICE ADDENDUM TO MASTER SERVICES AGREEMENT
- The provisions of this Addendum supersede the terms of the Master Services Agreement with respect to the Shift service to the extent that they conflict.
- Unless expressly requested or initiated by Client pursuant to a support request, no human other than Client shall manage, view or otherwise interact with Client's data.
- NovitasData shall bill Client for all of Client's data that remains on the Shift service after one calendar month of upload at the agreed upon rate and for each subsequent month that the data remains on the Shift service and has not been deleted by Client.
- Client acknowledges that it is Client's obligation to delete or remove data in order to avoid recurring monthly charges.
- In the event that client has failed to fulfill payment for data that remains on the Shift service, and has failed to cure such failure within thirty (30) days following written notice, NovitasData may irrevocably delete said data from the Shift service.
- The user takes full responsibility for loss of data and the Shift service does not provide backups of the data or a backup recovery plan. Client should always maintain a copy of the original data.
- Client acknowledges that any data deletion action by Client cannot be undone.
- All sales are final. Charges incurred for uploading data to the Shift service, or for fees related to the active storage of client data may not be canceled, revoked or otherwise refunded.
MASTER SERVICES AGREEMENT
This Master Services Agreement ("Agreement"), whose Effective Date shall be the date that Client clicks "Accept" thereby accepting all of these terms, is entered into by and between NovitasData Legal, LLC, an Oregon Limited Liability Company with its principal place of business at 610 SW Alder St., Portland, OR, 97205 ("NovitasData"), and Client.
WHEREAS, Client desires to retain the services of NovitasData, and NovitasData desires to perform such services for Client.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, NovitasData and Client agree as follows:
Confidential Information and Non-Disclosure
The parties agree to enter into a confidential relationship with respect to the disclosure of certain proprietary and confidential information ("Confidential Information").
"Confidential Information" means any information, or written, that is identified orally or in writing as confidential at the time of disclosure, or that is identified in writing as confidential within thirty (30) days of disclosure, that is not generally known outside of the discloser's organization, including but not limited to information relating to its products, product development, research, business operation, business direction, marketing plans, customer lists, trade secrets and pricing methods.
Exclusions from "Confidential Information". The obligations stated above shall not apply if such information (a) is known to the recipient or in the recipient's possession at the time of disclosure, (b) is or becomes public knowledge without fault of the recipient, (c) is approved for release by the discloser, (d) is independently developed by or for the recipient, (e) is rightfully received from a third party without restriction on disclosure, (f) is furnished by the disclosing party to a third party without a similar restriction on disclosure, or (g) is disclosed by the recipient under obligation created by court or governmental action.
Obligations of Parties. Each party agrees to maintain each party's Confidential Information in trust and confidence and to use such Confidential Information only as necessary to carry out the purpose for which it was disclosed. Each party shall take reasonable steps to protect the other's Confidential Information, including:
- Following procedures each party takes to protect its own valuable proprietary information;
- Limiting disclosure to recipient personnel to a need-to-know basis and informing such personnel of restrictions on use, reproduction and disclosure by use of non-disclosure agreements, display of confidentiality and proprietary notices and other such instructions; and
- Preventing disclosure to any third party with whom the receiving does not have a validly executed non-disclosure agreement in place.
Non-disclosure. Each party agrees not to disseminate the other's written or machine-readable or other tangible Confidential Information unless expressly authorized in writing by the disclosing party, and to return or destroy the original and any copies of such tangible Confidential Information if the disclosing party so requests.
Remedies for Breach of Confidentiality. Each party agrees that a material violation of the confidentiality and non-disclosure obligations under this Agreement would cause irreparable harm to the other for which no adequate remedy at law exists and the parties therefore agree that, in addition to any other remedies available, both parties shall be entitled to injunctive relief to enforce the terms of this Agreement. The prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys' fees, incurred because of any legal action arising in relation to any breach of confidentiality and non-disclosure obligations under this Agreement.
Continuing Obligation of Confidentiality. The confidentiality and non-disclosure obligations of Recipient under this Agreement shall survive the termination of this Agreement regardless of the manner of such termination and shall be binding upon its heirs, successors and assigns.
Relationships and Intellectual Property Rights. Nothing contained in this Agreement shall be deemed to create a partnership or joint venture of any kind. The limited right to use Confidential Information in this agreement shall in no way create any right of ownership in the Confidential Information. Each party retains full rights to ownership of their respective intellectual property, as well as any physical embodiments of those rights in paper or digital form.
Obligation to Notify NovitasData in the Event of a Subpoena that requests Confidential Information – In the event that Client receives a subpoena, notice to produce, or Freedom of Information Act request for documents that contain NovitasData's Confidential Information, the Client shall immediately notify NovitasData in order to provide an opportunity to object to the request.
Project Termination - Client has the right to terminate any project at any time during the month although Client shall be responsible for any partially completed work, labor fees, processing fees, unused days on current licenses, hosting fees, load fees, technical support charges and any other incurred charges for the billing month during which the project was terminated.
TERMS OF SALE / PAYMENT AND REFUND POLICY - All billings for fees, costs, expenses, taxes or reimbursable charges under this Agreement, or any subsequent agreement between the parties, shall be invoiced monthly upon net thirty (30) day terms. Client agrees to pay all such billings within thirty (30) days of invoice date. Balances unpaid after due date shall accrue interest at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lower.
- Fees due will be billed according to services and prices that have been or will be negotiated between the parties, or in the absence of such negotiation, according to the most current services and prices advertised by NovitasData as reflected in invoices to Client. Unless Client submits a dispute in writing to NovitasData within thirty (30) days of invoice date, and pays any undisputed portion of a disputed invoice within billing terms, NovitasData's invoices shall be deemed accurate, due, and payable in full. Client hereby grants NovitasData authority to conduct a business credit investigation of Client, including but not limited to obtaining credit reports and credit references as needed in NovitasData's sole judgment. Client agrees to pay NovitasData's actual costs of collecting any balance due under the Agreement, including but not limited to collection agency fees, attorney fees and tribunal costs. Client acknowledges that it is DIRECTLY responsible for paying NovitasData any mounts due under this Agreement, and hereby waives any right or claim to defer payment until after having received payment from some other party. Client shall not assign payment obligations to any other party without an express agreement between NovitasData, the Client, and the new payor, consistent with section 16 of this Agreement, "Successors and Assigns."
Remedies for Client Nonpayment - In the event Client fails to pay any invoice or if Client defaults upon any other obligation under this Agreement, and Client fails to cure such failure to pay or other default within thirty (30) days following written notice, NovitasData may, at its sole option, exercise any or all of the following remedies to the extent necessary to recover payment due, interest, as well as fees for attorneys or collection agents: (a) accelerate any or all balances due under the Agreement, whether or not billed; (b) suspend or terminate any or all services provided by NovitasData; (c) terminate this Agreement; (d) retain Client's property until Client pays all amounts due under this Agreement; (d) exercise all remedies to which NovitasData may be entitled at law or in equity.
Scheduled Maintenance/support hours
- Support Hours - NovitasData shall provide regular support hours for its web-hosted services from 6:00am - 6:00pm Pacific Time ("Normal Business Hours"), Monday through Friday except federally recognized holidays, NovitasData shall have an on-call support to Client outside Normal Business Hours ("After Hours.") Support provided After Hours is subject to the After Hours rate as provided in the Scope of Work, Pricing Guide, Job Ticket, or other subsequent agreement. Technical support provided for products outside of the Scope of Work, Job Ticket, or other work contract will be billed at the After Hours rate.
- Scheduled Maintenance – For unscheduled maintenance, software upgrades and other purposes, between 9:00 pm and 12:00 am Pacific Time, NovitasData's computer systems may be unavailable for periods of less than fifteen (15) minutes without notice to any user currently using the hosted site."For Scheduled Maintenance requiring greater than fifteen (15) minutes of downtime, or downtime outside of the hours of 9:00pm and 12:00 am Pacific Time, NovitasData will provide 24 hours notice to Client, unless client's database or project is no longer active.
- Response Time – NovitasData shall provide a response to Client within 30 minutes of receiving a message from Client for any "Urgent" issue. An Urgent issue, is an issue that has a material relationship to the success of Client's project. NovitasData shall make best efforts to provide a response to any Client request within 30 minutes.
Service Level Agreement – Including, but not limited to, web-hosted document review and early case assessment platforms: NovitasData's computer systems shall be available 99.9% of all of the time in each month. Scheduled Maintenance shall not count against the covenant in the previous sentence.
Conflicts of Interests - NovitasData expressly covenants that it has no business interest which would conflict in any manner with the performance of this contract. NovitasData expressly covenants that it will not manage the data of, or engage in any business adverse to, the business or legal interests of a party currently engaged in a legal dispute with Client without express written consent.
LIMITATION OF WARRANTIES - NovitasData DOES NOT WARRANT ANY PARTICULAR RESULT OR CONCLUSION; NOR THAT IT'S PRODUCTS, SERVICES, SOFTWARE OR DELIVERABLES WILL RESULT IN, OR CONTRIBUTE TO, ANY PARTICULAR DECISION IN A LEGAL PROCEEDING OR CONTROVERSY. NovitasData SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY. NovitasData DISCLAIMS ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, EXCEPT WHERE NovitasData HAS EXPRESSLY AGREED TO PROVIDE EXPERT ADVICE PURSUANT TO A WRITTEN AGREEMENT. NovitasData DISCLAIMS ANY WARRANTY OR STANDARD OF PERFORMANCE ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE WITH CLIENT OR ANY OTHER PARTY.
LIMITATION OF LIABILITY – In no event shall either party be liable to the other under any claim of negligence related to this Agreement, except for gross negligence. In no event shall NovitasData be held liable for a failure of any equipment, storage media, data, materials, transmission of data, or shipment/delivery of data (whether by NovitasData directly, or via third-party). In no event shall any officer, director, owner, or employee of NovitasData be personally liable for any legal claims related to this Agreement. In no event, shall the amount of any kind of legal liability to the Client related to this Agreement exceed the greater of the fees payable to NovitasData or the amount of NovitasData's insurance applicable to any such liability.
LEGAL ADVICE, ETC. - NovitasData IS EXPRESSLY NOT BEING RETAINED TO: (I) VERIFY THE ACCURACY OF THE DATA; OR (II) RENDER LEGAL ADVICE, EXCEPT WHERE NovitasData'S LEGAL COUNSEL IS BEING RETAINED FOR THE EXPRESS PURPOSE OF PROVIDING LEGAL CONSULTATION AS PROVIDED IN A SEPARATE WRITTEN AGREEMENT SIGNED BY CLIENT.
Client's Representation and Indemnification - Client warrants to NovitasData that it is the owner of or has the lawful right to be in possession of, all data furnished to NovitasData, and that such data is furnished for a lawful purpose. Client will, at its expense, defend, indemnify, and hold NovitasData and its officers, directors, employees, agents and suppliers (the "Indemnified Parties") harmless against any damages or expenses that they incur or may incur (including reasonable attorneys' fees and costs), and pay any costs, damages, or attorneys' fees incurred by the Indemnified Parties arising from or related to this Agreement.
Data Retention Policy
- The Project Completion Date shall be the last date a deliverable is provided to the client, or, in the case of a hosting project, the date of project termination. Notice of the Data Retention Policy shall be communicated to Client within thirty (30) days of the Project Completion Date along with the Storage Fee Schedule that shall provide the various storage options and associated fees.
- Client shall have the greater of thirty (30) days after receipt of notice of the Data Retention Policy, or sixty (60) days after the Project Completion Date to choose a storage plan in accordance with the Storage Fee Schedule, or else the project data will be permanently destroyed.
- Client agrees that NovitasData may treat the date that a project is paused or placed on hold as the Project Completion Date for purposes of this Data Retention Policy.
Complete Agreement - This Agreement shall constitute the complete agreement and shall set forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and superseding all prior discussions and understandings on the subject matter of this Agreement, whether written or oral. All subsequent modifications to this Agreement must be expressly agreed upon in writing and signed by Client.
Dispute Resolution, Choice of Law, Attorney Costs. THE PARTIES AGREE THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES INCLUDING THE OPTIONAL RULES FOR EMERGENCY MEASURES OF PROTECTION, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. The place of arbitration shall be Portland, Oregon. The parties request an arbitrator with knowledge of and experience with electronic discovery. All reasonable fees and costs related the arbitration of a dispute related to this Agreement shall be awarded to the prevailing party.
No Waiver of Breach - The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.
Successors and Assigns - Neither this Agreement, nor any part of this Agreement, may be assigned by NovitasData or Client without the prior written consent of the other party; provided, however, that the Agreement shall be assignable in the event that NovitasData is acquired by or merged into Client or another business entity. In the event of an express assignment, the benefits and obligations of this Agreement shall be binding upon and inure to the parties hereto, their successors and assigns.
Uncontrollable Circumstances - Neither party will be liable for delay or failure to perform any of its obligations where such delay or failure is due to the acts or omissions of the other party, unavailability of parts or software, war, civil insurrection, natural disaster (such as flood, earthquake, hurricane, volcanic eruption or lighting strike) or other act of God or any other event or condition beyond the reasonable control of such party.