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Exterro Review Services Master Service Agreement

Revision Date 11/24/2021

Master Service Agreement

By using Exterro’s software applications, Customer agrees to the terms and conditions set forth below. 

  1. Exterro’s Role. Exterro does not offer, dispense, or agree to provide legal advice of any kind to anyone and Customer and Counsel, if any, acknowledge and agree that Exterro does not and is not authorized to practice law, the Services do not constitute and are not intended to constitute the rendering of legal advice or services, and there is no attorney-client relationship between Exterro and Counsel or Customer.
  2. Customer’s Role. Customer agrees that Customer, and any of their employees or agents, including Counsel, if any, shall comply with any EULA’s or Terms of Use of any tool or software company provided by Exterro to Customer or their employees or agents. Customer shall, directly, by their Counsel, or by their authorized agents, provide materials, discovery, and/or data (“Source Material”) to Exterro in form and format acceptable to Exterro. All Source Material shall remain the property of Customer. To the extent Customer’s Source Material contains personal health information as defined in HIPAA, personal data as defined under the GDPR, or any other type of data covered by a government law or regulation, Customer agrees to provide written notice of this issue to Exterro prior to delivery of any such Source Material to Exterro.
  3. Statement of Work. Exterro shall provide to Client and Counsel services (“Services”) pursuant to a Statement of Work (“SOW”) or as otherwise agreed to in writing by the parties. 
  4. Payment. Exterro shall invoice Customer, and Customer shall pay Exterro, according to the prices and terms set forth in the SOW or other written agreements among the parties. All invoices are net 30 days. A 1.5% per month service charge will be added to all invoices not paid within 30 days from the invoice date. Exterro will provide Customer a copy of Customer’s Source Material or any other data or information in Exterro’s possession, so long as Customer’s account remains in good standing and all outstanding amounts are paid in full prior to Exterro releasing data to Customer. Customer acknowledges and agrees that Exterro has a possessory lien over any Customer Source Material or other data stored on the System. At any time an invoice remains unpaid for more than 30 days, Exterro will have the right to retain possession of any Customer Source Material in Exterro’s possession or any other data stored on the System, and any images produced or databases created or modified by Exterro, and Exterro may suspend performance on any work in process, including but not limited to, availability of the System until payment is made.
  5. Retainer. At any time an invoice remains unpaid for more than 30 days, Exterro may in its sole discretion insist on a retainer or prepayment for additional Services.
  6. Term and Termination.
    1. This Agreement shall remain in force perpetually unless terminated as provided herein, which includes the termination or completed performance of all SOWs or other written agreements among the parties.
    2. Either party may terminate this Agreement upon not less than thirty (30) days’ written notice to the other party. Either party may terminate this Agreement without written notice if the other party materially breaches this Agreement and, if such breach is capable of cure, fails to cure within 30 days of receipt of written notice of the breach. Exterro may terminate this Agreement without notice if Customer fails to pay any amount when due: (i) and such failure continues for 10 days after Customer’s receipt of written notice of breach; or (ii) more than 3 times in any six-month period.
  7. Media Handling. Exterro does not store physical media. If data is shipped to Exterro for data handling, Exterro will upload Customer data and return physical media to Customer. 
  8. System Availability.
    1. Exterro will provide Customer or any designated agent access to eDiscovery software, computer networks, databases and servers used by Exterro in connection with providing the Services (collectively “System”).
    2. Exterro shall use reasonable efforts to give Customer thirty (30) days’ notice of any Update to the Subscription Services or the Exterro Platform. Exterro shall use reasonable efforts to give Customer ten (10) days’ notice of any upgrade to the infrastructure network, hardware or software used by Exterro to operate and deliver the Subscription Service, if Exterro in its reasonable judgment believes that the cloud infrastructure upgrade will impact Customer’s use of its production instances of the Subscription Service. Exterro will perform regular maintenance of all hosted sites. Maintenance will be performed typically on Thursday nights, in a window that extends from 6:00 p.m. to around 2:00 a.m. (Pacific Standard Time) the following morning. Exterro will use commercially reasonable efforts to limit the period of time during which the Subscription Service is unavailable due to the application of Updates to no more than two (2) hours per month (“Maintenance Downtime”). Notwithstanding the foregoing, Exterro may provide Customer with a shorter, or no, notice period of an Update if necessary, in the reasonable judgment of Exterro, to maintain the availability, security or performance of the Subscription Service for Customer or other Exterro customers. (“Maintenance Period”).
    3. If Exterro fails or is unable to provide the Services, or any portion thereof, Customer’s sole remedy shall be that Exterro will, at Exterro’s discretion (i) use commercially reasonable efforts to re-perform, re-deliver or furnish functionally equivalent services or (ii) refund or credit Customer the fees paid or due for such Services that Exterro has failed or is unable to perform.
    4. Except during Maintenance Periods, the System will be available and connected to the Internet. If the System is not available for ninety (90) minutes or more on any one occasion or for more than three (3) hours in any month (excluding in both cases any Maintenance Period), then Customer will be entitled to, as its sole remedy, a service credit equal to one (1) day of hosting charges for each day in which the System is not available for sixty (60) minutes or more. To be entitled to this credit, Customer must provide written notice to Exterro of the unavailability of the System promptly upon its discovery.
  9. Intellectual Property Rights of Exterro. Exterro reserves all of its and its suppliers’ rights with respect to any proprietary computer software programs and websites and related documentation (“Documentation”) provided by Exterro to Customer under all applicable laws for the protection of intellectual property, including, but not limited to, trade secrets, copyrights, trademarks and patents. All trade secrets, proprietary programs, technical know-how, guides and instruction videos, methods of operation, designs and related Documentation developed by Exterro or one of its suppliers and provided to Customer or developed for Customer pursuant to this Agreement (collectively, “Exterro Proprietary Material”) shall remain the property of Exterro or its respective supplier. Except as otherwise provided in this Agreement, Customer shall not cause or permit unauthorized copying, reproduction, or disclosure of any portion of the Software or Documentation or the delivery or distribution of any part thereof to any third person or entity, for any purpose whatsoever, without the prior written permission of Exterro. This restriction shall continue to bind Customer and its agents beyond the termination of this Agreement. Customer and its agents shall have no right to use the any software, website, or Services other than as designated in this Agreement, any SOW, or any other written agreements among the parties.
  10. Confidentiality. 
    1. From and after the date hereof each party shall not, directly or indirectly, disclose or communicate to any person any Confidential Information (as defined below) without the advance and express written consent of the party that disclosed the information, unless and to the extent disclosure thereof is (i) to each party’s designated tax, legal and/or accounting advisors in connection with the fulfillment of this Agreement; (ii) required by applicable law, provided that the disclosing party shall provide the other with reasonably prompt notice of such requirement prior to any disclosure so that the other party may seek an appropriate protective order. 
    2. “Confidential Information” is defined as follows: (i) for Exterro, all Exterro intellectual property, Exterro Proprietary Material, customer information, customer contacts, vendor information, business information, marketing and sales information, strategies and business processes, and the material terms, including pricing, of this Agreement and any SOW or any other written agreements among the parties; and (ii) for Customers, all Source Material, communications between Customer and Counsel in relation to the same, and any privileged communications or information. Confidential Information does not include information that (i) is or becomes generally available to the public or the industry other than as a result of an otherwise impermissible disclosure, (ii) is independently developed without use or reference to Confidential Information, or (iii) is rightfully received from a third party without obligation of confidentiality. 
    3. Except pursuant to this Agreement, no Party will: (a) make any use of another Party’s Confidential Information; or (b) acquire any right in or assert any lien against the other Party’s Confidential Information or permit any third party to do so. The receiving Party shall only disclose Confidential Information to employees, independent contractors, subcontractors, attorneys, vendors, and accountants (“Personnel”) to the extent such Personnel have a need to know such information for the purposes described in this Agreement, and provided that such Personnel treat Confidential Information as strictly confidential whether by a signed agreement or under obligation of law.
  11. Indemnification. Customer and Exterro each agree to indemnify, defend and hold harmless the other and its agents, officers, attorneys (including with respect to Customer, Counsel), and employees, from and against all loss or expense, including related costs and reasonable attorneys’ fees arising from liability for damages, including suits at law or in equity, that are brought by a third party against the party seeking indemnification and caused by any negligent, grossly negligent, reckless, or intentional acts or omissions of the other party, or its agents, which may arise out of or are connected with the activities covered by this Agreement.
  12. Limitation of Liability. EACH PARTY AGREES THAT, EXCEPT AS PROVIDED IN SECTIONS 10 AND 11, THE OTHER WILL NOT BE LIABLE TO IT FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR REVENUES RESULTING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT. EACH PARTY AGREES THAT THE OTHER SHALL NOT BE LIABLE TO THE OTHER FOR ANY ACTS OR OMISSIONS WHICH ARE NOT THE RESULT OF THE OTHER’S GROSS NEGLIGENCE, RECKLESSNESS OR INTENTIONAL MISCONDUCT. EXTERROS TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS AND ANY SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO EXTERRO DURING THE FOUR MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THE PARTIES ACKNOWLEDGE THAT THE PRICES SPECIFIED IN ANY SOWs OR ANY OTHER WRITTEN AGREEMENTS AMONG THE PARTIES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THE FOREGOING LIMITATIONS OF ITS LIABILITY AND THE DISCLAIMERS OF LIABILITY SET FORTH HEREIN.
  13. Contraband. If Customer transmits to Exterro contraband (e.g., child pornography) the possession, control, or distribution of which violates any law, Exterro may dispose of such contraband in strict accordance with applicable law, after consultation with Counsel of Customer. Exterro reserves the right to, and shall, with concurrent notification to Customer and/or Counsel, report the existence of, and surrender any such contraband to law enforcement officials. By executing this Agreement, Customer expressly agrees to this policy and its implementation, and Customer agrees to hold harmless and indemnify Exterro for any liability in connection therewith.
  14. Non solicitation. During, and for a period of 12 months after, the term of this Agreement, the parties shall not (i) solicit, approach or appeal to any individual who currently is, or during the term of this Agreement was, an employee, consultant or contractor, to leave the employ of the other; or (ii) employ or otherwise engage an employee or contractor of the other.
  15. Modification; Waiver; Cumulative Remedies. Exterro reserves the right to modify this Agreement as it deems necessary. The rights, remedies, powers and privileges herein are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
  16. No Third-Party Beneficiaries. This Agreement does not confer any right, remedy, or claim to any third party.
  17. Force Majeure. No party shall be responsible for delay or failure in performing any obligations under this Agreement resulting from the occurrence of an event beyond its reasonable control.
  18. Choice of Law, Arbitration and Venue. This Agreement shall be governed by and construed in all respects in accordance with the laws of the state of Oregon (without regard to conflicts of law principles thereof). Any dispute or claim that arises out of or that relates to this agreement, or to the interpretation or breach thereof, or to the existence, validity, or scope of this agreement, shall be resolved by arbitration in accordance with the then effective arbitration rules of (and by filing a claim with) Arbitration Service of Portland, Inc., and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. The parties will keep all facts and other information relating to the arbitration confidential to the fullest extent permitted by law.

Attorneys' Fees. In the event suit or action is brought, or an arbitration proceeding is initiated, to enforce or interpret any of the provisions of this agreement, or that is based thereon, the prevailing party shall be entitled to reasonable attorneys' fees in connection therewith. The determination of who is the prevailing party and the amount of reasonable attorneys' fees to be paid to the prevailing party shall be decided by the arbitrator(s) (with respect to attorneys' fees incurred prior to and during the arbitration proceedings) and by the court or courts, including any appellate court, in which such matter is tried, heard, or decided, including a court that hears a request to compel or enjoin arbitration or that hears any exceptions or objections to, or requests to modify or vacate, an arbitration award submitted to it for confirmation as a judgment (with respect to attorneys' fees incurred in such proceedings).