Effective March 13, 2023
IMPORTANT LEGAL NOTICES
Legal Advice Disclaimer: The Subscription Services are not legal advice or a substitute for legal advice. Customer’s purchase or use of the Subscription Services do not establish or become part of any attorney-client relationship between Orrick and Customer. Accordingly, the attorney-client communications privilege and other protections of the attorney-client relationship do not apply to Customer’s communications and other interactions with Orrick regarding the Subscription, Services, unless Customer has separately retained Orrick to provide legal advice regarding use of the Subscription Services generally or for specific situations and such communications and interactions are for purposes of such legal advice.
With respect to a Party, any entity which (i) is controlled by, (ii) controls, or (iii) is under common control with such Party, where the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares entitled to vote for the election of directors.
1.2. “Authorized User”
An employee or officer of Customer who has (i) been assigned a unique username-password combination to access and use the Subscription Services, and (ii) downloaded and registered through the Site to access and use the Subscription Services.
1.3. “Confidential Information”
Any written, machine-reproducible and/or visual materials that (i) are clearly labeled as proprietary or confidential, (ii) are identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, or (iii) which should reasonably be understood to be confidential given the nature and circumstances of its disclosure, provided that Confidential Information shall not include information that (and subject to the receiving party being able to demonstrate by written or other documentary records): (a) is or becomes publicly known through no act or omission of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party, which independent development can be shown by written evidence.
1.4. “Customer Data”
Any data input into and/or stored by the Subscription Services by or for Customer or Authorized Users, including data and personal information about Customers’ Authorized Users who use the Subscription Services. Customer Data is Confidential Information of Customer. Customer Data does not include (i) data in which the Customer has been anonymized or de-identified (such as through the aggregation of Customer Data with data from other customers) or (ii) metadata associated solely with the behaviors or actions of Authorized Users with the Subscription Services.
Any fees paid by Customer for the Subscription Services and Implementation Services, as set forth in the Service Order.
1.6. “Implementation Services”
The services performed by Orrick to configure and launch the Subscription Services to Customer and its Authorized Users.
1.7. “Intellectual Property Rights”
Patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
Either Customer or Orrick, as applicable, and “Parties” means, collectively, Customer and Orrick.
1.9. “Service Order”
An order for Subscription Services mutually agreed between the Parties, which incorporates this Agreement by reference.
The Orrick website located at mogy.approvedlicensing.com.
Any Orrick or third-party software used by Orrick to provide the Implementation Services and/or Subscription Services.
1.12. “Subscription Services”
The Mogy®-branded online and hosted licensing software and services provided by Orrick through the Site, as further described in the Service Order.
2. CUSTOMER ACCOUNT; IMPLEMENTATION
2.1. Customer Account
To access the features of the Subscription Services, Customer must register for an account (the “Customer Account”) on the Site. Customer is responsible for maintaining the confidentiality of its Customer Account access credentials, the credentials of Authorized Users, and the security of Customer’s systems and networks that it uses to access the Subscription Services. Customer shall immediately notify Orrick in the event that Customer becomes aware, or otherwise suspects, that its Customer Account access credentials or the credentials of Authorized Users have been shared or disclosed to third parties.
2.2. Implementation Services
Subject to Customer’s cooperation and assistance in accordance with Section 4.1, Orrick will provide any applicable Implementation Services to enable Customer to use the Subscription Services.
3. SUBSCRIPTION SERVICES
3.1. Subscription Services
Orrick will provide the Subscription Services in accordance with this Agreement, commencing on the date set forth in the Service Order and continuing until such time as Customer cancels the Customer Account, or this Agreement or the Subscription Services are otherwise terminated in accordance with this Agreement or the Service Order. Customer may access and use the Subscription Services solely for its internal business purposes, and such access and use are expressly limited to the Authorized Users of Customer.
3.2. Ancillary Services
Customer hereby authorizes Orrick to use the Subscription Services to market additional products and services to Customer, as well as to provide notice or information to Customer regarding Orrick or its activities, regardless of whether such products, services, or activities relate to the Subscription Services.
Customer shall not interfere with or disrupt the Subscription Services or the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services). Customer shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. Customer shall not, and shall use commercially reasonable efforts to ensure its Authorized Users do not: (i) use the Subscription Services or Software as a service bureau or otherwise for the benefit of a third party; (ii) disrupt the functioning of the Subscription Service or Software; (iii) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Subscription Service or Software; (iv) modify or remove any copyright, trademark, or other proprietary rights notice in the Subscription Service or Software; (v) access or use the Subscription Service or Software to submit or transmit any computer virus, worm, defects, Trojan horses, or other items of destructive nature; (vi) use the Subscription Service or Software for purposes of developing, using, or providing a product or service that competes with, or provides similar functionality to, the Subscription Services or Software; (vii) copy, modify, or distribute any portion of the Subscription Services or Software, including without limitation, through screen scraping or the use of automated scripts or procedures; (viii) download, copy, remove, or otherwise transfer from the Subscription Services and Software any Materials; (iv) rent, lease or provide access to the Subscription Services on a time share or service bureau basis; or (x) transfer any of its rights hereunder (except as specified in Section 13.9).
3.4. Acceptable Use Policies
Customer shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer may not, and shall ensure that Authorized Users do not, use the Subscription Services in any manner that would violate the rights of any third party, including, without limitation, the storing or processing any third party confidential, personal, or payment information into the Subscription Services without proper lawful license or permission to do so. Customer shall not use the Subscription Services to transmit any bulk unsolicited commercial communications. Customer shall not engage in any bulk downloading of Materials or other information or content from the Subscription Services or the Software. Customer shall, and shall ensure that its Authorized Users, keep confidential and do not disclose to any third parties any user identifications, Customer Account access credentials, account numbers and account profiles.
3.5. Illegal or Improper Use of Services
Orrick may immediately suspend or terminate Customer’s access to the Subscription Services, by written notice to Customer, in the event that (i) Orrick determines that Customer has breached this Agreement or the terms of a Service Order, (ii) Orrick determines on the basis of reasonable evidence that the Subscription Services are being used for fraudulent or criminal activities, or in violation of any applicable law or regulation, or (iii) in the event that a governmental, legal or other law enforcement authority so requires or instructs Orrick to terminate or suspend services to Customer. In the event Orrick suspects or anticipates such termination, Orrick will, to the extent practical under the circumstances, use commercially reasonable efforts to provide Customer with prior written notice of the same and an opportunity to cure the same prior to (and in avoidance of) termination. Customer acknowledges that under certain circumstances such prior notice and/or cure period may not be possible or practical.
3.6. Data Maintenance and Backup Procedures
The Subscription Services are not intended to be a failsafe data warehouse or data back-up solution. In the event of any loss or corruption of Customer Data, Orrick shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Orrick. Customer acknowledges that full restoration of Customer Data may not be possible under all circumstances.
3.7. No Submission or Attestation
Customer acknowledges and agrees that the use of the Subscription Services shall not constitute a submission or attestation to any state or Federal agency. Accordingly, Customer shall be fully responsible for making its own submissions or attestations to each applicable state or Federal agency outside of the Subscription Services.
3.8. Export Control
Orrick makes no claims that the Subscription Services are accessible or appropriate outside of the United States. Access to and use of the Subscription Services may not be legal by certain persons or in certain countries. If Customer accesses the Subscription Services from outside the United States, Customer does so at its own risk and remains solely responsible for compliance with local laws. The Subscription Services are subject to export controls under the laws of the United States and any other applicable countries’ laws. Customer agrees to comply with such laws governing export, re-export, transfer, and use of the Subscription Services and shall obtain all required U.S. and local authorizations, permits, or licenses prior to exporting, re-exporting, releasing, or otherwise making the Subscription Services available outside of the United States. Customer represents and warrants that: (i) it is not located in a country that is subject to an embargo by the United States, or that has been designated by the United States as a “terrorist supporting” country; and (ii) it is not listed on any list of the United States of prohibited or restricted parties.
4. CUSTOMER OBLIGATIONS
4.1. Cooperation and Assistance
Customer shall at all times: (i) provide Orrick with good faith cooperation and access to such information and personnel assistance as may be reasonably required by Orrick in order to provide the Implementation Services and Subscription Services from time to time; and (ii) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.
4.2. Marketing Support
Customer grants to Orrick a non-exclusive, non-transferable (except as permitted under Section 12.9), revocable, limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in accordance with any Customer trademark and logo use guidelines that Customer provides to Orrick. Any public use by Orrick of the Customer Marks shall be subject to Customer’s prior consent, except that Orrick may use the Customer Marks to identify Customer as a customer of Orrick, including on the Orrick corporate website. All goodwill developed from such use shall be solely for the benefit of Customer.
Customer shall ensure that all Authorized Users comply with this Agreement, including, without limitation, with Customer’s obligations set forth in Sections 3.2, 3.3, and 3.4. Customer shall be responsible for noncompliance by Authorized Users and for any charges incurred as a result of such actions. Customer shall promptly notify Orrick of any suspected or alleged violation of this Agreement by an Authorized User or unauthorized third party and shall cooperate with Orrick with respect to Orrick’s resulting investigation and any actions to enforce this Agreement. Orrick may elect, in its sole discretion, to suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Customer in the event that Orrick reasonably determines that such Authorized User has violated this Agreement or has otherwise violated the law.
4.4. Telecommunications and Internet Services
Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services. Specifically, Customer shall use the most recent versions of either Google Chrome, Microsoft Edge, or Apple Safari Internet browsers to access and use the Subscription Services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Orrick shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
4.5. License to Customer Data
Customer shall retain all right, title, and interest in and to Customer’s intellectual property rights in Customer Data. By importing or processing Customer Data, Customer hereby grants to Orrick the right and license to reproduce, distribute, modify, and adapt Customer’s Data solely to provide the Subscription Services to Customer. In addition, Customer acknowledges and agrees that third party subcontractors of Orrick may have access to Customer Data in connection with maintaining and developing the Subscription Services. Orrick may use, display, store, disclose or transfer Customer Data as may be required by law or legal process and Orrick shall provide reasonable notice to Customer of any such disclosure.
4.6. Representations and Warranties with Respect to Customer Data
With respect to any Customer Data that Customer imports, stores, or processes through Orrick, Customer represents, and warrants that:
4.6.1. It is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use, Customer Data.
4.6.2. Customer and its Authorized Users have been authorized, by all required legal action, to input Customer Data into the Subscription Services and to have Customer Data stored by the Subscription Services.
4.6.3. Orrick (and, where applicable, Authorized Users) is authorized to use and distribute Customer Data as necessary to exercise the licenses granted by Customer in this Agreement.
4.6.4. Customer Data, and the use thereof as contemplated herein, does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
4.6.5. Customer’s privacy policies and practices allow Customer to provide Customer Data regarding Authorized Users to Orrick, and do not prohibit or conflict with Orrick’s ability to use, store, and disclose such Customer Data as set forth in this Agreement.
5. FEES; TAXES
5.1. Fees; Late Payment
Customer shall pay the Fees as set forth and defined in the applicable Service Order, in the manner described in the Service Order. Customer is responsible for maintaining complete and accurate billing and contact information and notifying Orrick of any changes to such information. If any Fees become past due, Orrick shall have the right to (i) apply interest on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount are due until the date that payment is received by Orrick, and (ii) suspend Customer’s access to the Subscription Services if Fees are past due until such Fees are paid in full. Orrick shall not pursue its rights in the foregoing sentence with respect to Fees that are under a reasonable good faith Dispute which Customer is cooperating diligently to resolve. If non-Disputed Fees remain overdue for ninety (90) days or more, Customer shall be obligated to reimburse Orrick for the reasonable costs of collection, including reasonable fees and expenses of attorneys. Except as otherwise set forth in an applicable Service Order, all Fees are non-refundable.
All amounts and fees stated or referred to in this Agreement or any Service Order, are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any Fees, other than any taxes based on Orrick’s net income.
5.3. Local Currency
All Fees will be invoiced in USD except as otherwise provided in a Service Order. To the extent a currency conversion is required, the conversion will be undertaken at the time of the purchase, at the exchange rate applicable at that time.
6.1. As between Orrick and Customer, the Subscription Services and Software (and all copies of the Software), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Orrick or its licensors. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Subscription Services and Software provided by Orrick (the “Materials”) are protected by all relevant intellectual property and proprietary rights and applicable laws. Except for the Customer Data, all Materials contained in the Subscription Service are the property of Orrick or its third-party licensors. Except as expressly authorized by Orrick, Customer may not make use of the Materials. Orrick reserves all rights to the Materials not expressly granted in this Agreement.
7. CONFIDENTIALITY AND SECURITY.
7.1. Confidentiality Obligations
During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither Party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations under this Section 7 will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. Neither Party shall disclose Confidential Information except (x) to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a reasonable need to know such information, and (y) in the case of Orrick, to third parties such as states and the Nationwide Multistate Licensing System & Registry (NMLS), that Customer directs to receive such Customer’s Confidential Information in connection with the Subscription Services, provided that any such third parties shall, before they may access such information, either (i) execute a binding agreement to keep such information confidential or (ii) be subject to a professional obligation to maintain the confidentiality of such information. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance, but in no event less than a reasonable degree of care. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide (to the extent permitted by applicable law) the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
7.2. Security Obligations
Orrick shall (i) maintain appropriate information security practices for Orrick’s systems used to provide Subscription Services, including reasonable security procedures and practices appropriate to the nature of the information, to prevent unauthorized access to, or use or disclosure of, any Customer Data (a “Security Incident”), and (ii) comply with all privacy and data security laws and regulations applicable to Orrick. Orrick shall promptly notify Customer of any confirmed Security Incident that has impacted Customer Data, investigate, and remediate any such Security Incident. Orrick shall have no responsibility or liability for any Security Incident to the extent such Security Incident is caused in whole or in part by the negligence, willful misconduct, or fraud of Customer or its Authorized Users.
8. WARRANTY AND DISCLAIMER
8.1. Customer Use and Data
Orrick shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Orrick by Customer or by any Authorized User in connection with the Subscription Services. Except as otherwise set forth herein, Orrick expressly disclaims any and all liability in connection with Customer Data. Orrick is under no obligation to edit or control Customer Data that Customer imports to or the Subscription Services. Orrick may, at any time without prior notice, remove any Customer Data that violates this Agreement or applicable law, or which violates the rights of a third party or Orrick. Orrick shall have no liability for any acts taken by Customer or an Authorized User in violation of Section 3.3.
8.2. General Disclaimer
EXCEPT AS SET FORTH IN SECTION 8.3 THE SUBSCRIPTION SERVICES, SOFTWARE, AND MATERIALS ARE PROVIDED “AS IS”. Orrick makes no representations or warranties of any kind whatsoever, express or implied, in connection with this Agreement, the Implementation Services, or the Subscription Services. Without limiting the foregoing, Orrick disclaims any warranty that the Subscription Services will be error free or uninterrupted or that all errors will be corrected. Orrick further disclaims any and all warranties with respect to the Subscription Services as to merchantability, accuracy of any information provided, or fitness for a particular purpose, or non-infringement. Orrick further disclaims any and all warranties arising from course of dealing or usage of trade. No advice or information, including, without limitation, tax advice and reporting responsibilities, whether oral or written, obtained from Orrick or elsewhere shall create any warranty not expressly stated in this Agreement. In jurisdictions that by law do not allow the exclusion of certain warranties in certain circumstances, the disclaimers in this Section 8.2 and elsewhere in this Agreement shall be construed to comply with such applicable law.
8.3. Limited Warranty
Notwithstanding Section 8.2, Orrick warrants that the Subscription Services will perform in all material respects with the functions described on the Site on the commencement date set forth in the Service Order and in such other written product documentation for the Subscription Services as Orrick may provide from time to time. This limited warranty does not apply if the Subscription Services are not administered by Customer in accordance with this Agreement or any applicable instructions and training provided by Orrick. If the Subscription Services fail to operate as warranted in this Section 8.3 and Customer promptly notifies Orrick in writing of the nature of the non-conformance (a “Warranty Notice”), Orrick will use commercially reasonable efforts to promptly repair or replace the non-conforming Subscription Services without charge. If, after a reasonable opportunity to cure, Orrick does not remedy the non-conformance, Customer may, no later than sixty (60) days after giving the Warranty Notice, terminate the Subscription Services and receive a refund of the prepaid fees for the Subscription Services for the period following the date of the Warranty Notice. THE FOREGOING PROVIDES CUSTOMER’S SOLE REMEDY AND ORRICK’S SOLE LIABILITY UNDER THE EXCLUSIVE LIMITED WARRANTY IN THIS SECTION 8.3.
9. TERM AND TERMINATION
The term of the Subscription Services shall be as set forth in the applicable Service Order (“Term”). This Agreement and the Subscription Services shall commence on the date set forth in the Service Order, and they shall continue until cancelled as set forth in the Service Order or terminated as provided in this Agreement.
9.2. Termination for Cessation of Subscription Services
At any time, Orrick may terminate this Agreement, effective immediately, if Orrick elects in its sole discretion to cease providing the Subscription Services, in the manner described in this Agreement, to Customer and to Orrick’s other customers, provided that Customer shall be entitled to a pro-rated refund of its prepaid Fees as of the date of termination.
9.3. Termination for Breach
If either Party commits a material breach of its obligations in this Agreement or the Service Order (including payment obligations), the non-defaulting Party may give written notice to the defaulting Party specifying the nature of the default, and if such default is not cured within thirty (30) days from the receipt of such notice, then the non-defaulting Party shall have the right to immediately terminate this Agreement. In the event that Customer terminates due to a material breach by Orrick, Customer shall be entitled to a pro-rated refund of its prepaid Fees as of the date of termination.
9.4. Termination for Insolvency
Notwithstanding anything hereinabove set forth, either Party may terminate this Agreement immediately by providing written notice to the other Party in the event the other Party becomes insolvent, makes an assignment for the benefit of creditors, ceases to do business, or if any bankruptcy, reorganization, arrangement, insolvency, liquidation proceeding, or other proceeding under any bankruptcy or other law for the relief of debtors is instituted by or against such Party.
9.5. Rights and Obligations Upon Expiration or Termination
Upon expiration or termination of this Agreement, (i) Customer’s and Authorized Users’ right to access and use the Subscription Services shall immediately terminate, (ii) Customer and its Authorized Users shall immediately cease all use of the Subscription Services, (iii) Orrick shall cease use of the Customer Marks within a reasonable time, and (iv) each Party shall delete or return, and make no further use of, any Confidential Information, materials, or other items (and all copies thereof) belonging to the other Party, provided that Orrick shall be permitted to retain Customer Data within the Subscription Services to the extent Orrick reasonably determines that such Customer Data cannot easily be extracted, and Orrick’s obligations under Section 7 shall survive with respect to such retained Customer Data for as long as Orrick retains the Customer Data.
Upon termination, any provision which, by its nature or express terms should survive, will survive, including, specifically, Sections 6 (Ownership), 7 (Confidentiality and Security), 10 (Limitation of Liability), 11 (Indemnification), 12 (Disputes), and 13 (General).
10. LIMITATION OF LIABILITY
10.1. Consequential Damages Waiver
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR AN INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
10.2. Liability Cap
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
11.1 Orrick Indemnification
11.1.1 Orrick will indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by Customer resulting from any third party claim, suit, action, or proceeding (“Third Party Claim”) that the Subscription Services infringe, misappropriate, or otherwise violate such third party’s intellectual property rights.
11.1.2 If a Third Party Claim covered by Section 11.1.1 is made or appears possible, Customer agrees to permit Orrick, at Orrick’s sole discretion, to: (i) modify or replace the Subscription Services, or component or part thereof, to make it non-infringing; or (ii) obtain the rights to make the Subscription Services non-infringing. If Orrick determines that neither alternative is reasonably available, Orrick may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and provide a pro-rated refund to Customer of Customer’s prepaid Fees as of the date of termination.
11.1.3 This Section 11.1 will not apply to the extent that the alleged infringement, misappropriation, or violation arises out of or is based upon: (i) use of the Subscription Services outside of the scope of the license granted herein; (ii) use of the Subscription Services in combination with data, software, hardware, equipment, or technology not provided by Orrick or authorized by Orrick in writing; (iii) any modification of the Subscription Services not made by Orrick; (iv) any unauthorized use of the Subscription Services; or (v) Customer Data.
11.1.4 This Section 11.1 sets forth Customer’s sole remedies and Orrick’s sole liability and obligation for any actual, threatened, or alleged claims that the Subscription Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
11.2. Customer Indemnification
Customer will indemnify, defend, and hold harmless Orrick and its Affiliates from and against any Losses incurred resulting from a Third Party Claim arising out of or resulting from: (i) Customer Data; (ii) the items outlined in Section 11.1.3; (iii) Customer’s breach of any of its representations, warranties, or obligations under this Agreement; or (iv) negligence or willful misconduct by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User.
11.3. Indemnification Procedures
The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
The term “Dispute” or “Disputes” means any claim, counterclaim, cross-claim, complaint, cross-complaint, controversy, or Dispute between Customer and Orrick that arises out of or relates in any way whatsoever to this Agreement. Without limiting the generality of the foregoing, the term “Dispute” or “Disputes” shall include: (i) any claim, controversy or Dispute without regard to when it arose, whether it is based in contract, tort, statute, regulation, common law, or equity; or whether the remedy sought is legal or equitable, including claims for compensatory, monetary, restitution and/or disgorgement, or injunctions, (ii) all Disputes asserted by Customer as a private attorney general, as a putative representative and/or member of a class of persons, or in any other representative capacity, all of which shall be heard on an individual basis only, and (iii) Disputes concerning the formation, existence, validity, enforceability, revocation or scope of this Arbitration Agreement, including any Disputes about the arbitrability of any claim or cause of action. Except as expressly excluded herein, all such Disputes shall be referred to the arbitrator and be decided by the arbitrator in accordance with this Arbitration Agreement.
12.2. Informal Resolution
Before arbitrating a Dispute, each Party agrees to try to resolve the Dispute by providing written notice to the other Party of the Dispute pursuant to Section 13.4. If a Dispute is not resolved within thirty (30) days of notice, either Party may bring a formal proceeding.
12.3. Agreement to Arbitrate
Customer agrees that any Dispute between Customer and Orrick shall be resolved by confidential, binding arbitration, as set forth herein. Customer acknowledges and agrees that this Arbitration Agreement results in a waiver of its right to have the Dispute resolved by a judge and jury in court in accordance with applicable rules of evidence and procedure and to have the matter heard in a public forum. Customer also acknowledges that Customer is agreeing that any Dispute will be resolved on an individual basis only and that Customer will neither bring nor participate as a representative plaintiff or class member in a class action with respect to any Dispute. Customer further acknowledges and agrees that any Dispute between Customer and Orrick will not be joined or consolidated with any other Dispute and that Customer will not bring any Dispute in any other representative capacity. To the extent permitted by law, Customer agrees not to bring any Dispute in any private attorney general capacity.
12.4. Arbitration Procedures
To initiate arbitration, a Party will serve a written demand for arbitration on the other Party pursuant to Section 13.4 setting forth the basis of the initiating Party’s claim and the amount of damages sought. The arbitration shall be conducted pursuant to the JAMS Comprehensive Arbitration Rules and Procedures before a single arbitrator who shall be a retired judge selected by the Parties. If the Parties cannot agree on an arbitrator, one will be appointed by JAMS. If JAMS is unwilling or unable to administer the arbitration, the arbitration shall be administered by the American Arbitration Association, in accordance with its Commercial Arbitration Rules, or by such other arbitration administrator as the Parties may agree to. The Parties shall share the cost of arbitration (including the administrator’s and the arbitrator’s fees) equally and bear their own legal fees and costs. The arbitration proceedings and the decision of the arbitrator will be confidential. To the extent permitted by law, no punitive or exemplary damages shall be awarded by the arbitrator. The exclusive venue for the arbitration shall be San Francisco, California. The arbitrator shall have no authority to conduct class arbitration, to consolidate or join Disputes of other customers with Customer’s Dispute, to hear claims brought in a private attorney general capacity, or to award injunctive relief beyond such relief as is necessary to remedy Customer’s individual injury or to prevent future injury to the Customer alone. The arbitrator shall hear Motions to Dismiss or their equivalent and Motions for Summary Judgment. The arbitrator shall determine such motions under Rules 12 and 56 of the Federal Rules of Civil Procedure (or their equivalents if superseded) and case law construing these rules governing at the time of decision. Unless otherwise agreed by the Parties, a motion to dismiss shall be filed no later than the 60th day following the appointment of the arbitrator and heard by the arbitrator within 30 days thereafter. The arbitrator shall rule on any motion to dismiss within 15 days of the hearing date on such motion. If the arbitrator allows an amended pleading, then the opposing Party shall have an opportunity to move to dismiss any amended pleading. A Party shall be entitled to bring a motion or motions for summary judgment at any point after the 60th day following notice of an election to arbitrate and any such motion or motions shall be heard and determined no later than 4 weeks prior to the date of any evidentiary hearing in the matter. The arbitration award will be final and conclusive on both Parties and not be subject to de novo review or appeal. The arbitrator’s award may be confirmed, and judgment thereon may be entered, in any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, related to such enforcement.
12.5. Law Governing Arbitration Agreement
Customer acknowledges and agrees that the Agreement evidences a transaction in interstate commerce. Accordingly, the Arbitration Agreement is governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq. (the “FAA”), and not by any state or local law governing consolidation or joinder of parties or claims, the arbitrability of claims, or the enforcement of class action or jury trial waivers.
12.6. Applicable Law
The arbitrator shall apply the FAA to all questions before him or her arising under the FAA. Subject to and to the extent not pre-empted by the FAA, the terms of this Arbitration Agreement, the applicable JAMS rules, and the law of the California (without reference to its choice of law rules) shall be applied (in the foregoing order of priority) by the arbitrator as the rule of decision in arbitration to issues that would be governed by state law if the Dispute were heard in court instead of in arbitration; likewise, the arbitrator shall apply federal law to all questions of federal law that arise in arbitration. The arbitrator is authorized to award on an individual basis remedies that would be available if the action were heard in a court. The arbitrator shall honor claims of privilege in accordance with federal law, if a federal claim is at issue, or California law, if a claim governed by state law or foreign law is at issue.
Either Party may bring a lawsuit in the United States District Court for the California or the Superior Court of the California, and each Party consents to the jurisdiction of these courts:
12.7.1. to enforce the arbitration provisions of this Agreement as provided by the FAA or applicable District of Columbia procedure;
12.7.2. for equitable remedies as described in Section 13.13 on a provisional basis pending arbitration. Such equitable remedies shall remain in place until the later of such time as the arbitrator’s award entering preliminary or permanent injunctive relief (or dissolving or modifying a court-entered injunction) is (a) confirmed or (b) the time for bringing a motion to confirm the arbitral award has expired without a motion or petition for confirmation having been timely filed;
12.7.3. California Residents Regarding Public Injunctive Relief: If Customer is a California resident and a Dispute involves a claim for public injunctive relief under California law, Customer may bring that claim in court. If Customer brings that claim in court, Customer further agrees that Orrick may treat such a claim as a Dispute within the meaning of this Arbitration Agreement, and that Orrick would then have the right to demand arbitration, and if Customer refuses Orrick’s demand, to move to enforce arbitration in accordance with the terms of this Arbitration Agreement pursuant to the FAA. If Orrick brings and loses that motion, Customer’s claim for public injunctive relief will be heard in court, but Customer agrees to stay its claim in court for public injunctive relief pending (a) exhaustion of Orrick’s right to appeal in court from the ruling against Orrick, and (b) completion of arbitration of all other Disputes. If Orrick wins its motion, Customer’s claims for injunctive relief will be decided in arbitration in accordance with the terms of this Arbitration Agreement, meaning that the arbitrators can award only such injunctive relief as is necessary to remedy Customer’s own alleged injury or to prevent future injury to Customer alone.
If any portion of this Arbitration Agreement cannot be enforced, the unenforceable portion will be severed and the rest of this Arbitration Agreement Arbitrate will continue to apply. However, if (a) it is finally determined that the class action waiver contained in this Arbitration Agreement cannot be enforced, or (b) the arbitrators (contrary to this Arbitration Agreement) purport to decide a Dispute on a class or other representative basis, or to award injunctive relief that extends beyond that necessary to remedy Customer’s own individual alleged injuries or to prevent future harm to Customer alone, then only this sentence will apply and the remainder of this Arbitration Agreement will be void. In no event will a claim for class relief (or for injunctive relief extending beyond Customer’s own individual alleged injuries or to prevent future harm to Customer alone) be arbitrated.
13.1. Governing Law
Subject to Section 11, this Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the California, without regard to its conflict of law provisions.
No waiver by either Party any default or breach of this Agreement shall be valid unless set forth in writing by such waiving Party. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
This Agreement may be amended by Orrick from time to time, by posting the amended Agreement on the Site, and any such amendments to the Agreement shall be effective as of the initial date of posting. Customer’s continued use of the Subscription Services following the posting of an amended Agreement shall constitute Customer’s acceptance of such amended Agreement.
Any notices provided by Orrick under this Agreement will be given: (i) via email; or (ii) by posting to the Subscription Services. For notices provided by email, Orrick shall use [email protected], emails to Customer shall use the address set forth in the applicable Service Order, and the date of receipt will be the date on which such notice is transmitted.
Subject to Section 11, if any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
13.6. Force Majeure
Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes (except by its own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, epidemic, pandemic and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
13.7. Compliance with Laws
Each Party agrees to comply with all applicable laws with respect to its activities hereunder.
13.8. Relationship Between the Parties
Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or attorney-client relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. For the avoidance of doubt, Orrick shall not be deemed to be representing Customer in any legal capacity.
Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s prior written consent, except to its Affiliate or as the result of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a Party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such Party or (ii) all or substantially all of the assets of such Party, by another entity in a single transaction or a series of transactions; or (b) the merger of such Party with another entity. Subject to the foregoing, this Agreement shall inure to the benefit of the successors and permitted assigns.
If Customer or its Authorized Users submit suggestions, ideas, comments, or questions containing product feedback about or posted through the Subscription Services (“Feedback”), Customer hereby grants Orrick and its Affiliates a worldwide, nonexclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display such Feedback in any form. Customer shall have no intellectual property right in the Subscription Services as a result of Orrick’s incorporation of Feedback into the Subscription Services.
Orrick reserves the right to, without materially affecting the functionality of the Subscription Services: (1) discontinue, impose limits on, or restrict access to any aspect of the Subscription Services at any time, with or without cause or notice, including the availability of any of the features, delivery services, databases, or content, or (2) edit or delete any documents, information, or other content appearing in the Subscription Services. In the event that changes permitted by this Section 13.11 materially impact the features available to Customer and its Authorized Users for a substantial period of time, Customer may terminate this Agreement without penalty (and shall be entitled to receive a prorated refund of any unused prepaid Fees) after providing thirty (30) days’ prior notice to Orrick.
13.12. Entire Agreement
This Agreement, together with the exhibits hereto and including any Service Orders, constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
13.13. Equitable Relief
Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
13.14. No Third-Party Beneficiaries
This Agreement is for the sole benefit of the signatories and is not intended to benefit any third party. Only the Parties may enforce this Agreement.