This Services Agreement (this “Agreement”) by and between TLATech Inc. (“TLA”) and
WHEREAS, Customer wishes to subscribe to the Services (as defined in Section 1 (Definitions)), and TLA wishes to
provide such Services to Customer, each on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
Definitions
All terms used but not defined herein shall have the meaning assigned to them in the TLA Terms of Service.
“Action ” means any claim, suit, action, charge, complaint, formal contractual grievance, suit,
litigation, arbitration action, audit, examination, inquiry, investigation, or other legal proceeding at law or
in equity or by or before, or otherwise involving, any Regulator or arbitrator.
“Affiliate ” of a Party means any other entity that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, such Party. All Affiliates of
Customer shall be entities incorporated in, or otherwise governed by the Laws of, the United States. No foreign
affiliate of a Customer shall be deemed to be an “Affiliate” hereunder.
“Blended Transient Data ” means (i) all intermediate outputs of AI and other algorithmic
processes that are not displayed to End Users on Syllo, and (ii) the structured version of Content reflecting,
in whole or in part, Syllo’s proprietary ontology.
“Case ” means a case created by an End User on the Site.
“Case File ” refers to the application on the Site in which the litigation record (docket items,
correspondence, deposition transcripts) may be stored, searched, and analyzed on Syllo.
“Content ” refers to materials, documents and other information, including, without limitation,
code, text, data, messages, contacts, information, files, articles, images, videos, photographs, weblinks,
graphics, software, applications, packages, designs, features, changes/edits or modifications to documents, and
other content and materials, written, created, transmitted, linked or uploaded by or on behalf of any TLA
customer (including Customer) and/or end user (including an End User), and made available on the Site. “Content”
also includes any work product, document, information or other data displayed on Syllo resulting from the
artificial intelligence component of the Site (e.g., a large language model) modifying or acting on Content.
“Custom Support Services ” means the custom services selected by Customer in any executed Support
Services Orders, and provided by TLA to support Customer or one of its End Users in relation to Customer’s
onboarding to, and use of, the Site.
“Customer Administrator ” means a Customer-designated individual who is granted “administrative”
login credentials to the Site for Customer and has administrative control over the Site for Customer, who
oversees use of the Site within Customer’s organization, and who grants access to the Site to End Users on
Customer’s behalf. A “Customer Administrator” must always be an employee of Customer.
“eDiscovery Application ” refers to the application on the Site in which, inter alia, electronic
discovery data can be uploaded, stored, searched, analyzed, and reviewed.
“eDiscovery Support Services ” means the eDiscovery support services provided by TLA to support
Customer or one of its End Users in relation to one or more of Customer’s Cases on the Site, and which include
(i) eDiscovery processing support (assist Customer with processing files in the eDiscovery Application), (ii)
eDiscovery production support (assist Customer with production of files in the eDiscovery Application), and
(iii) eDiscovery general support (assist Customer with general requests related to completion of eDiscovery
workflows, including running hit reports, application of batch tagging, configuring tagging palettes and
layouts, configuring workflows, and GenAI Document Tagging).
“End User ” means each of the individuals authorized by Customer to access and use the Site. End
Users must be partners, employees, members, owners or shareholders of Customer. Without limitation, contractors,
subcontractors, independent contractors, and any external professional service providers such as accountants,
outsourcers, public relations firms, and Customer’s own external attorneys are specifically excluded from being
End Users.
“Intellectual Property Rights ” means existing and future registered and unregistered rights
granted, applied for or otherwise in existence under or related to any patent, copyright, trademark, trade
secret, database protection or other intellectual property Laws, and all similar or equivalent rights or forms
of protection, in any part of the world.
“Law ” means any applicable statute, law, ordinance, regulation, rule, order, constitution,
treaty, common law, judgment, decree or other requirement having the force of law, of any federal, state,
provincial, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal
of competent jurisdiction, whether in existence as of the Effective Date or promulgated thereafter, as amended
or superseded.
“Losses ” means any and all losses, damages, liabilities, deficiencies, claims, actions,
judgments, demands, obligations, settlements, interest, awards, penalties, fines, costs or expenses of whatever
kind, including reasonable attorneys’ fees and expenses, court and investigation costs and fees of expert
witnesses.
“Materials ” means any operational or instructional materials (including any manuals, training
materials, how-to guides, FAQs, etc.) created, or provided, by TLA to Customer or any End User, in any form,
including videos, audio recordings, electronic downloads or other, in each case, relating to the use of the
Site.
“Order ” means any document, including documents generated by the Site during or after the checkout process, agreed to in writing by the parties specifying the particular Services that TLA will provide to the Customer and the applicable Fees for those Services. Orders are incorporated into the Agreement by reference.
“Person ” means any individual, partnership, limited liability company, corporation, estate,
trust, organization, unincorporated association, joint venture, business or other legal entity, and any
government or any governmental agency or political subdivision thereof.
“Permitted Use ” means any use of the Site or Services, by an End User, for the benefit of
Customer solely in or for Customer’s provision of legal services to the Customer’s clients, in accordance with
the terms of this Agreement and TLA Terms of Service. In no event shall “Permitted Use” include any use of the
Site or other Service to compete with TLA, to recreate the Site or a functional equivalent, to reengineer
specific features of the Site, or in any way to facilitate a third party doing any of the foregoing.
“Posting Content, ” “to Post” or words of similar import, means to post, upload, or link Content
to the Site, or to transmit Content, or make it available, through the Site.
“Regulator ” means any public body, government agency or regulator with competent jurisdiction
over a Party or one of its Affiliates.
“Representatives ” means, with respect to a Party, that Party’s and its Affiliates’ employees,
officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal
advisors.
“Seat ” means the unique login credentials to the Site granted to a specific End User under in
this Agreement.
“Services ” means access and use of the Site and the Materials, and the services selected by
Customer in any Order, which may include (i) the Custom Support Services; (ii) the eDiscovery Support Services;
and (iii) the Technical Support Services.
“Site ” means a deployment of TLA’s litigation platform, Syllo, with the features available to
End Users on Syllo from time to time (as selected by Customer). Customer agrees the GenAI Document Review Module
is not a part of this Agreement.
“Support Data ” means all data that is received by TLA related to Customer requesting or
obtaining Technical Support Services from TLA. Support Data does not include Content Posted by End Users to the
Site.
“Syllo AI Credits ” means credits that Customer and Customer’s End Users may use to utilize AI
features on the Site.
“Technical Support Services ” means technical support provided by TLA to help Customer or one of
its End Users troubleshoot or resolve a technical issue that Customer or End User encounters with its use or
access of the Site.
“TLA Policies ” means all the TLA policies set forth at https://app.syllohq.com/policies.
“TLA Terms of Service ” means TLA’s Terms of Service, as may be amended from time to time, and
available in their latest form at https://app.syllohq.com/terms-of-service.
“Usage Data ” means data generated in connection with any Customer’s and End User’s access and
use of the Site, and data derived from it.
“Violation Notice ” means any notice or communication alleging a violation of Law (including,
without limitation, copyright infringement), or a violation of the terms of this Agreement, the TLA Terms of
Service, or any TLA Policy.
License and Services
2.1. Access to Site . Subject
to the terms and conditions of this Agreement, including timely payment of Fees, and the TLA Terms
of Service, TLA shall, during the Agreement Term, provide to Customer, exercisable by and through
End Users, the Services, in each case, solely for the Permitted Use. 2.2. Seats . The Site may be
used exclusively by End Users, for the number of Seats, and for the period of time, set forth in the
applicable Order(s) in effect under this Agreement. The term (i.e., duration) set forth in a
particular Order (such term/duration of a particular Order, the “ Order Term ”) may be extended or renewed by the Parties by mutual agreement.
Customer shall ensure that any End User’s login credentials to the Site are used by one person —
i.e., a single login credential may not be shared by multiple people. 2.3. Services Changes . TLA
may make changes to the Services from time to time. To the extent TLA adds major additional
features to the Site after the Effective Date—including, in particular, additional features that
leverage generative artificial intelligence—such additional features, in TLA’s sole discretion, may
be available to the Customer only upon the execution of a separate Order that may require additional
fees. 2.4. Third Party Applications and Services . TLA shall not be responsible for Customer’s or End Users’ use of any
third-party applications, services or products, that are licensed by their provider to Customer
and/or End User(s), for use in connection with the Services (“ Third-Party
Products ”) and any exchange or other transfer of any information
between Customer and any third-party provider (“ Third-Party Data Transfer ”). 2.5. TLA License and Rights .
2.5.1. Customer grants TLA a
limited, non-exclusive, worldwide license to access and use any Content Posted by Customer
or any of its End Users (including, if applicable, any of its Customer Administrators) (i)
for the purpose of providing the Services (including all the services and applications that
are part of the Site), fixing the Site (or any part thereof), and providing any Technical
Support Services, and (ii) as otherwise instructed by Customer or its End Users. 2.5.2. Customer acknowledges
and agrees that the TLA Terms of Service shall be binding on Customer and End Users, except
that, to the extent the TLA Terms of Service conflict with the terms of this Agreement, the
terms of this Agreement control. 2.5.3. Without limitation,
Customer consents to TLA (i) monitoring and tracking use of the Site to gather Usage Data,
for the purpose of providing, managing, improving, and developing the Site, and to ensure
compliance with applicable Law, and (ii) gathering, collecting, repurposing, analyzing,
aggregating and otherwise using the Usage Data for its reasonable business purposes.
2.5.4. Usage Data and Support
Data shall be the sole and exclusive property of TLA. 2.5.5. Customer consents to
TLA storing, processing, indexing, replicating, transferring, and otherwise manipulating
Content Posted by or accessible to End Users for the limited purpose of providing,
maintaining, and fixing issues with the Site. Customer acknowledges and agrees that its
Content, and Content of its End Users, will be stored on such third-party virtual servers,
web storage, and/or data indexing and search providers as determined by TLA in its sole
discretion consistent with its data security policies. 2.5.6. TLA reserves all rights
not expressly granted herein.
2.6. Blended Transient Data . The Parties agree that each Party owns its portion of Blended Transient
Data and that, due to the nature of Blended Transient Data, each Party’s owned portion of such data
is often not distinguishable from the other Party’s portion (i.e., distinguishing such portions
would be prohibitively expensive and impracticable). Customer acknowledges that it will not have
access to Blended Transient Data and will not be able to export Blended Transient Data from the
Site. TLA shall apply the same confidentiality standards and access restrictions to Blended
Transient Data as it does to Customer’s Content.
Customer Restrictions and Obligations.
3.1. Acceptable Use, Limitations and Restrictions.
3.1.1. Customer shall, and
shall ensure its End Users, only use the Services for the Permitted Use. Customer shall not,
and shall ensure its End Users do not, use the Site (i) beyond the applicable Order Term,
(ii) in excess of the authorized number of Seats counts, or (iii) in violation of any other
restrictions or limitations set forth herein or in the TLA Terms of Service, including the
restrictions set forth in Section 4 of the TLA
Terms of Service or any TLA Policy. 3.1.2. By not prohibiting its
End Users from using the Site after a change has been made to the TLA Terms of Service, the
Site, or the TLA Policies, Customer consents to any and all such changes, subject to
Customer’s right to terminate this Agreement pursuant to Section 7 . 3.1.3. Without limiting any of
TLA’s other rights under this Agreement, Customer agrees that Customer’s or an End User’s
actual or suspected (i) violation of the terms herein or the TLA Terms of Service, or (ii)
violation of law, may result (in addition to all other remedies available to TLA) in
immediate suspension of Customer’s and one or more End User’s use of the Services. TLA may
seek all reasonable legal remedies available to it against Customer or the applicable End
User if such a violation occurs. 3.1.4. To comply with local
privacy, data protection and other Laws, Customer agrees that it shall only allow its End
Users to use the Site in the United States. If TLA suspects use of login credentials to the
Site outside the United States, TLA may immediately suspend the applicable login credentials
and require Customer to pay for any fees, costs or expenses incurred by TLA in addressing
(or responding to) such misuse.
3.2. Customer
Administrators . Subject to confirmation by TLA, Customer may specify one or more Customer
Administrators who will have the right to control the “administrative” accounts to the Site for such
Customer. All actions of a Customer Administrator shall be deemed to be actions of Customer for all
purposes hereunder (including legal, contractual and other purposes).3.3. Responsibility for Content,
3.3.1. TLA (i) is not liable
or responsible for, and does not endorse, any Content Posted by any Person (including
without limitation Customer, any TLA customer, Customer Administrator, any End User, or any
other end user) or through artificial intelligence means, and (ii) may not be held liable,
directly or indirectly, for any Liability caused to an End User, Customer, or any other
Person in connection with any Content Posted to the Site. 3.3.2. Customer is solely
responsible for (i) the Content any of its End Users Posts or that is Posted using any of
its End Users’ credentials, (ii) ensuring that the Content it or any of its End Users Posts
to the Site (x) does not violate any applicable Law (including, without limitation,
copyright Laws, privacy Laws or defamation Laws), and (y) does not infringe upon the
Intellectual Property Rights of any Person, and (iii) any Losses resulting from such
Content. 3.3.3. Customer agrees that
it, and its End Users, will not involve TLA in any Action, question, dispute or other matter
regarding the ownership of, and intellectual property rights to, Content Posted to the
Site. TLA is not responsible for protecting or defending Customer’s or an End User’s
intellectual property rights in any Content Posted to the Site.
3.4. Responsibility of
Customer .
3.4.1. Customer shall comply,
and shall ensure that every End User complies, with the TLA Terms of Service and with this
Agreement, and shall be solely responsible for its or its End Users’ breaches of the TLA
Terms of Service, this Agreement, or any TLA Policy. Customer agrees that no End User shall
have any claim, or shall bring an Action, against TLA for any use of the Site, or any
arising in relation thereto; only Customer may have a claim, or bring an Action, against
TLA. 3.4.2. Customer shall be
entirely responsible for (i) any and all activities
of its End Users, and any and all activities in, or on, such End Users’ accounts (whether or
not performed, or engaged in, by the End User who was granted a Seat), (ii) use of the Site
accessed with login credentials issued to End Users (whether or not accessed by the
applicable End User), and (iii) all of its End Users’ or Customer Administrator(s)’ actions
(or lack of actions) with respect to the Site, including (without limitation) any misuses of
Cases, Posting or misuse of Content (regardless of who Posted such Content), improper
logins, or otherwise. 3.4.3. Customer shall ensure
that its End Users have been trained in proper use of the Site. 3.4.4. Each Party shall
promptly notify the other in writing of any suspected or actual Site misuses. Customer
agrees to notify TLA of any such suspected or actual misuses (including any breaches
mentioned in Section 2(a)(v) of the TLA Terms
of Service) within one business day of such knowledge, belief or suspicion, by emailing TLA
at security@tlatech.io
and identifying the unauthorized use or breach of security, and the relevant End User
account. TLA is not liable for any loss incurred as a result of an unauthorized use of (i)
a username/password or (ii) an Account. TLA may terminate an Account if it deems it
necessary to address the unauthorized use or security breach. 3.4.5. Customer will (via the
Customer Administrator or otherwise) manage its roster of End Users and will promptly notify
TLA to deactivate an End User’s login credentials if (i) the applicable individuals is no
longer an employee, member, owner or shareholder of Customer, or (ii) Customer otherwise
wishes to terminate the End User’s access to the Site. 3.4.6. In the event of a
dispute between TLA, on the one hand, and Customer or an End User, on the other hand,
whether under the TLA Terms of Service, or under this Agreement, Customer shall not be
entitled to limit or otherwise avoid liability by relying on an End User’s breach of the TLA
Terms of Service. Customer agrees not to make a claim that it is not liable for any breach,
dispute or other issue hereunder or under the TLA Terms of Service on such basis.
Fees; Payment Terms.
4.1. Fees . TLA
shall invoice Customer on a monthly basis for, and Customer shall pay TLA, the fees set forth in any
executed Order (the “Fees ”); provided that Syllo AI Credits shall be paid by Customer on an ongoing basis
as set forth in an applicable Order. Fees shall be paid in U.S. dollars. Invoices may include any past
due amounts and any interest accrued on such amounts.4.2. Taxes . Fees
pursuant to this Agreement do not include any transaction taxes, which may include local, state,
provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature,
including value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes
(collectively defined as “General Taxes ”). All Fees invoiced pursuant to this Agreement are
payable in full and without reduction for General Taxes and/or foreign withholding taxes (collectively
defined as “Taxes ”). Customer is responsible for paying all Taxes associated with Fees due
pursuant to this Agreement, excluding income taxes imposed on TLA (the “TLA Income Tax ”).
If TLA has a legal obligation to pay or collect Taxes (expressly excluding the TLA Income Tax) for which
Customer is responsible under this Agreement, the appropriate amount shall be computed based on
Customer’s address listed in Section 16.7 (Notices) , and invoiced to and paid by Customer.
Customer hereby confirms that TLA can rely on the name and address set forth in Section 16.7
(Notices) as being the place of supply for purposes of any General Tax. If Customer is legally
entitled to an exemption from the payment of any Taxes, Customer will promptly provide TLA with legally
sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption.4.3. Payment .
4.3.1. Customer shall place, and maintain, a valid credit card
on file with TLA which will be charged by TLA automatically at the beginning of each calendar
month (or within a few days thereof) to pay for Seat Fees for the calendar month and any Fees
incurred but not yet paid. Customer shall ensure such credit card on file has a credit limit
capable of paying any used and unpaid Syllo AI Credits for the previous months.4.3.2. If Customer fails to maintain a valid credit card on
file, or if TLA’s attempted charge of the credit card on file for Syllo AI Credits is declined,
TLA shall have the right to immediately disable Customer’s and its End Users’ access to the Site
and the Services.4.3.3. Late Payment. If Customer fails to make payments for
any Fees when due, then, in addition to all other remedies that may be available, TLA shall have
the right to suspend access to the Services for Customer and its End Users. TLA reserves the
right to terminate this Agreement (or to refuse to enter into new Orders, or to renew this
Agreement or any Order) if Customer repeatedly fails to pay invoices when due, even if TLA is
ultimately able to collect payment on past due invoices.4.3.4. No Deductions or Setoffs. All amounts payable to TLA
under this Agreement shall be paid by Customer to TLA in full without any setoff, deduction or
withholding for any reason.
Intellectual Property Rights
5.1. Services and
Materials . All right, title and interest in and to the Services, the Site, and the Materials,
including all Intellectual Property Rights therein, are and will remain with TLA. Customer has no right,
license or authorization with respect to any of the Services, the Site, or the Materials except as
expressly set forth in Section 2.1 (License and Services) , in each case subject to this
Agreement. The Site and the Materials are protected by copyright, trademark, and other Laws of the
United States.5.2. Appearance and
Code . The look and feel of the Site is copyright © TLATech Inc. All rights reserved.
Customer may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design
elements or concepts of the Site without express written permission from TLA. This Agreement does not
grant Customer any right, title, or interest in the Site or its code, in the Materials, in any Content
created by end users, by other TLA customers, or by third parties, or in TLA’s intellectual property
(including, without limitation, trademarks, logos and other brand features).
Confidentiality and Security
6.1. Confidential
Information . In connection with this Agreement, each Party or one of its Affiliates (as the
“Disclosing Party ”) may disclose or make available Confidential Information to the other Party or
one of its Affiliates (as the “Receiving Party ”). Subject to Section 6.2 (Exclusions) ,
“Confidential Information ” means information in any form or medium (whether oral, written,
electronic or other) that is identified as confidential at time of disclosure or is disclosed under
circumstances that would reasonably indicate confidential treatment, including information consisting of
or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans,
strategies, customers, pricing, and information with respect to which the Disclosing Party has
contractual or other confidentiality obligations, in each case whether or not marked, designated or
otherwise identified as “confidential”.6.2. Exclusions .
Confidential Information does not include information that the Receiving Party can demonstrate by
written or other documentary records: (i) was rightfully known to the Receiving Party without
restriction on use or disclosure prior to such information’s being disclosed or made available to the
Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public
other than by the Receiving Party’s or any of its Representatives’ breach of this Agreement; (iii) was
or is received by the Receiving Party on a non-confidential basis from a third party that was not or is
not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or
is independently developed by the Receiving Party without reference to or use of any Confidential
Information of the Disclosing Party. Without limiting the foregoing, (i) all Content is and will remain
the Confidential Information of Customer, and (ii) the terms of this Agreement are Confidential
Information of both Parties.6.3. Protection of
Confidential Information . As a condition to being provided with any disclosure of or access
to Confidential Information, the Receiving Party shall:
6.3.1. not access or use Confidential Information other than
as necessary to exercise its rights or perform its obligations under and in accordance with this
Agreement; 6.3.2. except as may be permitted by and subject to its
compliance with Section 6.5 (Compelled Disclosures) , not disclose or permit access to
Confidential Information other than to its Representatives who: (i) need to know such
Confidential Information for purposes of the Receiving Party’s exercise of its rights or
performance of its obligations under and in accordance with this Agreement; (ii) have been
informed of the confidential nature of the Confidential Information and the Receiving Party’s
obligations under this Section 6.3 (Protection of Confidential Information) ; and (iii)
are bound by confidentiality and restricted use obligations at least as protective as the terms
set forth in this Section 6.3 (Protection of Confidential Information) . Notwithstanding
the foregoing, Customer may not disclose any Confidential Information of TLA to any competitor
of TLA or permit access to any Confidential Information of TLA by any competitor of TLA; 6.3.3. safeguard the Confidential Information from
unauthorized use, access or disclosure using at least the degree of care it uses to protect its
sensitive information and in no event less than a reasonable degree of care: (i) with respect to
trade secrets, for so long as such trade secrets qualify as trade secrets under applicable Law,
and (ii) with respect to all other Confidential Information, for such period as the information
remains confidential; and 6.3.4. ensure its Representatives’ compliance with, and be
responsible and liable for any of its Representatives’ non-compliance with, the terms of this
Section 6 (Confidentiality and Security) .
6.4. Disclosures Regarding
the Site and Services.
6.4.1. Customer and its End Users shall be authorized to
orally disclose and discuss the existence of the Site (and Customer’s use thereof), its
individual features, and the other Services (i) in the provision of legal services to Customer’s
clients, (ii) in Customer’s sales presentations or materials to existing or potential Customer
clients (solely for the purpose of securing new business for Customer), and (iii) to law firms,
lawyers, or other potential customers of TLA; provided that this Section 6.4.1 shall be
subject to the restrictions in the remainder of this Section 6.4 . Notwithstanding the
foregoing, Customer may not orally disclose any of the Site’s features or any Services to a
competitor or potential competitor of TLA (even if such competitor is a client or independent
contractor of Customer).6.4.2. Notwithstanding anything in this Agreement to the
contrary, Customer and its End Users shall be prohibited from (i) creating video content,
materials (printed, electronic or other), or other content, describing or discussing (including
commenting on), the Site, its individual features, or the Services, and (ii) disclosing (in any
form or manner) or discussing, the Site, its individual features, or the other Services, to
potential competitors of TLA, including providers of legal software. Such prohibition shall
include a prohibition on “screen sharing” or “screen showing” in which Customer or an End User
shows their screen (via electronic screen share, in person or otherwise) to another party who is
not an End User for the purpose of describing the Site, any of its features or the other
Services (other than for provision of legal services to the Customer’s clients).6.4.3. For the avoidance of doubt, the provisions of this
Section 6.4 (including the restrictions on the Company and its End Users disclosing or
discussing TLA Confidential Information, the Site, its features or other Services with
competitors) will survive termination of this Agreement.
6.5. Compelled
Disclosures .
6.5.1. If Customer or any of its End Users or Representatives
is compelled by applicable Law or a Regulator to disclose any Confidential Information of TLA
then, to the extent permitted by applicable Law or such Regulator, Customer shall: (i) promptly,
and prior to such disclosure, notify TLA in writing of such requirement so that the Disclosing
Party can oppose such disclosure; and (ii) provide reasonable assistance to TLA, at TLA’s sole
cost and expense, in opposing such disclosure or seeking a protective order or other limitations
on disclosure. If TLA waives compliance or Customer, after providing the notice and assistance
required under this Section 6.5 (Compelled Disclosures) , remains required by Law or such
Regulator to disclose any Confidential Information, Customer shall disclose only that portion of
the Confidential Information that Customer is legally required to disclose and, on TLA’s
request, shall use commercially reasonable efforts to obtain assurances from the applicable
court or other presiding authority that such Confidential Information will be afforded
confidential treatment.6.5.2. If TLA or its Representatives are compelled by
applicable Law or a Regulator to disclose any Confidential Information of Customer, then TLA
will adhere to its Legal Disclosure and Subpoena Policy in regard to such Confidential
Information. TLA’s Legal Disclosure and Subpoena Policy is available at
app.syllohq.com/policies/subpoenas and available on Customer’s request.
6.6. Security .
During the Agreement Term, TLA will maintain commercially reasonable technical and organizational
measures, including disaster recovery and business continuity procedures, designed to: (i) ensure the
security and integrity of the Site, and (ii) protect against accidental or unlawful destruction, loss,
alteration, unauthorized disclosure of, or access to Content. Customer is solely responsible for making
an independent determination as to whether the technical and organizational measures meet Customer’s
requirements.
Term and Termination
7.1. Agreement
Term . This Agreement shall commence on the Effective Date and, unless terminated earlier
pursuant to any of this Agreement’s express provisions, will continue for one (1) month thereafter. The
Agreement shall automatically renew for successive one (1) month terms unless either Party gives the
other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the
then-current term. The term of this Agreement, as extended, shall be the “Agreement Term. ”7.2. Termination by either
Party . In addition to any other express termination right set forth elsewhere in this
Agreement, either Party may terminate this Agreement, including all active Orders, for any reason by
providing thirty (30) days written notice to the other Party.7.3. Termination by
Customer . Customer may terminate this Agreement, including all active Orders, upon written
notice to TLA if any change to the TLA Terms of Service or any TLA Policy are unacceptable to Customer.
For termination to be effective under this Section 7.3 (Termination by Customer) , written notice
of termination must be provided to TLA within fifteen (15) days of the date of the change. Continued
use of the Site following the date of any change to the TLA Terms of Service or TLA Policy constitutes
acceptance of the change.7.4. Termination by
TLA . TLA may terminate this Agreement and any Order subject to Section 4.3.4 (Late
Payment) , or upon written notice to Customer that an End User is breaching this Agreement or the
TLA Terms of Service, and such breach continues for three (3) days after such notification. In
addition, TLA may terminate immediately upon ten (10) days’ notice if Customer fails to pay undisputed
Fees (provided that Fees are only disputed in good faith) due hereunder within sixty (60) days of due
date.7.5. Effect of Expiration
or Termination . Upon any expiration or termination of this Agreement, except as expressly
otherwise provided in this Agreement:
7.5.1. all rights, licenses, consents and authorizations
granted by either Party to the other hereunder will immediately terminate;7.5.2. Customer shall cease all use of any Services, the Site,
and the Materials, and (i) promptly destroy all documents and tangible materials containing,
reflecting, incorporating or based on any Materials or TLA Confidential Information, (ii)
permanently erase all Materials and TLA Confidential Information from all systems Customer
directly or indirectly controls, and (iii) ensure that all of End User’s comply with this
Section 7.5.2 ;
7.5.3. notwithstanding anything to the contrary in this
Agreement, with respect to information and materials then in its possession or control: (i) the
Receiving Party may retain the Disclosing Party’s Confidential Information, in its then current
state and solely to the extent and for so long as required by applicable Law; (ii) TLA also may
retain Content in its backups and disaster recovery systems until such Content is deleted or
otherwise remediated in the ordinary course of business; and (iii) all information and materials
described in this Section 7.5.3 will remain subject to all confidentiality, security and
other applicable requirements of this Agreement;7.5.4. if Customer properly terminates this Agreement,
Customer will be relieved of any obligation to pay any applicable Fees attributable to the
period after the date such termination becomes effective. However, Customer shall not be
relieved of the obligation to pay previously-accrued but not yet paid Fees, on receipt of TLA’s
invoice therefor; and7.5.5. if TLA properly terminates this Agreement, all Fees
that would have become payable had this Agreement remained in effect until expiration of the
Agreement Term (and had all Order Terms been completed) will become immediately due and payable,
and Customer shall pay such Fees, together with previously-accrued but not yet paid Fees, on
receipt of TLA’s invoice therefor.
7.6. Surviving
Terms. Sections 1 (Definitions), 2.5.6 (reservation of rights), 2.6 (Blended Transient
Data), 3.4.4 (notification of misuse of Site), 4 (Fees; Payment Terms), 5 (Intellectual Property
Rights), 6 (Confidentiality), 7 (Term and Termination), 8.5 (Disclaimer of Warranties), 10 (Limitation
of Liability), 11 (Force Majeure), 12 (Disputes), 15 (Customer Exports of Content on the Site), and 16
(Miscellaneous) will survive any termination or expiration of this Agreement.
Representations and Warranties
8.1. Mutual
Representations and Warranties . Each Party represents and warrants to the other Party that:
8.1.1. it is duly organized, validly existing and in good
standing as a corporation or other entity under the Laws of the jurisdiction of its
incorporation or other organization; 8.1.2. it has the full right, power and authority to enter
into and perform its obligations and grant the rights, licenses, consents and authorizations it
grants or is required to grant under this Agreement; 8.1.3. the execution of this Agreement by its representative
has been duly authorized by all necessary corporate or organizational action of such Party; and
8.1.4. this Agreement will constitute the legal, valid and
binding obligation of such Party, enforceable against such Party in accordance with its terms.
8.2. Compliance with
Laws .
8.2.1. TLA. TLA will comply with all Laws applicable to its
provision of the Site. However, TLA is not responsible for compliance with any Laws or
regulations applicable to Customer or Customer’s industry that are not generally applicable to
information technology service providers. TLA does not determine whether Content includes
information subject to any specific Law or regulation, or whether any TLA customer (including
Customer) or any end user (including any End User) is engaging in the unlicensed practice of law
or if it is violating the Law in any other manner.8.2.2. Customer. Customer must comply with all Laws
applicable to its use of the Site, and shall ensure that all of its End Users comply with
applicable Law in their use of the Site. Customer is responsible for maintaining privacy
protections and security measures for components that Customer provides or controls, and for
using the Site in a manner consistent with Customer’s legal and regulatory obligations. TLA has
no liability to Customer or any third party for any reason as a result of Customer’s breach of
this Section 8.2.2.
8.3. Limitation .
The warranties set forth herein are made to and for the benefit of Customer only (not individual End
Users or third parties).8.4. Customer
Representations, Warranties and Covenants . Customer represents, warrants and covenants to
TLA, during the Agreement Term, that (i) Customer is responsible for use of the Services by its
Representatives and End Users, and for ensuring that its End Users comply with the terms of this
Agreement and the TLA Terms of Service, (ii) Customer owns or otherwise has and will have the necessary
rights and consents in and relating to Content as necessary in order to grant the rights to TLA
contemplated by this Agreement and by the TLA Terms of Service, and (iii) the storage and processing of
Content does not, and will not, cause TLA to suffer any liability for violation of any Person’s rights.
8.5. DISCLAIMER OF
WARRANTIES . EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL SERVICES, THE
SITE, AND THE MATERIALS ARE PROVIDED “AS IS” AND TLA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHER, AND TLA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF
DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TLA MAKES NO WARRANTY OF ANY KIND
THAT THE SERVICES, THE SITE OR THE MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL
OPERATE WITHOUT INTERRUPTION, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT
IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE MATERIALS, OR BE ERROR FREE.
Indemnification .
9.1. TLA
Indemnification .
9.1.1. TLA shall indemnify, defend and hold harmless Customer
from and against Losses incurred by Customer arising out of or relating to any Action brought by
a third party (other than an Affiliate of Customer) against Customer to the extent that such
Losses arise from use of the Site and the Materials (excluding Content) that infringes an
Intellectual Property Right of such third party.9.1.2. Any TLA obligation to indemnify, defend and hold
harmless Customer or an End User will not apply in the event that a claim, Action or Loss arises
from or relates to:
Customer’s or an End User’s use of the Site or
the Materials (i) in violation of applicable Law or (ii) not in accordance with the
terms of this Agreement, the TLA Terms of Service, or the TLA Policies;
TLA’s compliance with specifications,
requirements or requests of Customer, or of one of its End Users;
access to or use of the Services, the Site, or
the Materials in combination with any hardware, system, software, network or other
materials or service not provided or authorized in the Materials or otherwise in writing
by TLA;
any modification, alteration, or conversion of
the Services, the Site, or the Materials other than: (i) by TLA; or (ii) with TLA’s
written approval in accordance with TLA’s written specification; or
Customer’s or one of its End User’s gross
negligence or willful misconduct.
9.2. Customer
Indemnification .
9.2.1. Customer shall indemnify, defend and hold harmless TLA
and its Affiliates, and each of its and their respective officers, directors, employees, agents,
successors and assigns (each, an “TLA Indemnitee ”) from and against Losses incurred by
such TLA Indemnitee in connection with any Actions that arise out of or relate to: (i) Content
Posted by Customer or one of its End Users infringing the Intellectual Property Right of a third
party, or which violates any other applicable Law (including, without limitation, privacy Laws,
and intellectual property Laws); (ii) any action of its End Users using the Site, or any action
taken on one of its End Users’ Accounts; (iii) Customer’s or any of its Representative’s or End
User’s breach of this Agreement (including failure to pay any Fees due hereunder), the TLA Terms
of Service, the TLA Policies, or applicable Law; (iv) any dispute between Customer or an End
User (on one hand) and another customer or another end user (including another End User) (on the
other hand) in relation to the Site, or Content Posted therein; and (v) any failure by an End
User to indemnify TLA for any Losses owed by such End User to TLA.9.2.2. Customer’s obligation to indemnify TLA for any of its
End User’s actions, breaches, indemnification obligations, or other, in each case, which arise
from events or circumstances which occurred while the End User was in Customer’s employ shall
remain in effect after an End User leaves Customer’s employ.9.2.3. Customer agrees that TLA may bring an Action against
Customer and/or (in its discretion) against an End User for any Losses incurred by an TLA
Indemnitee due to an End User’s actions, violations of the TLA Terms of Service, any TLA Policy,
or applicable law. TLA shall be entitled to bring Actions against both Customer and the
applicable End User
9.3. Indemnification
Procedure .
9.3.1. Each Party shall promptly notify the other Party in
writing of any Action for which such Party believes it is entitled to be indemnified pursuant to
Section 9.1 (TLA Indemnification) or Section 9.2 (Customer
Indemnification) . The Party seeking indemnification (the “Indemnitee ”) shall
cooperate with the other Party (the “Indemnitor ”) at the Indemnitor’s sole cost and
expense. The Indemnitor shall immediately take control of the defense and investigation of such
Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s
sole cost and expense. The Indemnitee’s failure to perform any obligations under this
Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9
(Indemnification) except to the extent that the Indemnitor can demonstrate that it has
been materially prejudiced as a result of such failure. The Indemnitee may participate in and
observe the proceedings at its own cost and expense with counsel of its own choosing.
9.3.2. Notwithstanding anything in this Agreement to the
contrary, without the prior written approval of TLA, Customer shall not have the right to assume
the defense of any third party claim (i) that is asserted directly or indirectly on behalf of a
Person that is a current or prospective customer, third party payor or supplier of TLA, (ii)
involving a component or aspect of the Site provided by a TLA supplier, or (iii) if the third
party claim (a) seeks non-monetary relief against TLA, (b) involves Taxes or criminal or quasi
criminal allegations against TLA, (c) involves a claim of which TLA reasonably believes an
adverse determination would be materially detrimental or injurious to TLA, (d) involves a claim
which, upon petition by TLA, the appropriate court or arbitrational body rules that Customer
failed or is failing to vigorously prosecute or defend, or (e) involves a claim in an amount
which, together with previous and pending claim amounts, would exceed the Fees paid to TLA
hereunder. For any Action which Customer does assume, TLA shall have the right, at its own cost
and expense, to participate in the defense of any third party claim with counsel selected by it
subject to Customer’s right to control the defense thereof.9.3.3. If Customer elects not to compromise or defend such
third party claim or fails to promptly notify TLA in writing of its election to defend, TLA may
pay, compromise, defend such third party claim and seek indemnification for any and all claims
based upon, arising from or relating to such third party claim. If Customer assumes the defense
of an Action, (i) it will be conclusively established for purposes of this Agreement that the
claims made in that Action are within the scope of and subject to indemnification; and (ii) no
compromise or settlement of such claims may be effected by Customer without TLA’s consent unless
(a) there is no finding or admission of any violation of any Law or order of any Regulator or
any violation of the rights of any Person and no effect on any other claims that may be made
against TLA, and (b) the sole relief provided is monetary damages that are paid in full by
Customer; and (c) TLA will have no liability or obligation with respect to any compromise or
settlement of such claims effected without its consent, and such compromise or settlement
provides for a complete, unconditional release in customary form from all obligations and
liabilities of TLA with respect to such claim. Customer shall be liable for the fees and
expenses of counsel employed by TLA for any period during which the Indemnitor has failed to
assume the defense thereof. With respect to any third party claim subject to indemnification
under Section 9 (Indemnification) , both Customer and TLA, as the case may be, shall keep
the other Party fully informed in all material respects of the status of such third party claim
and any related proceedings at all stages thereof where such Party is not represented by its own
counsel.
9.4. Mitigation . At
its option and sole cost and expense, TLA is entitled to mitigate the risk or Losses of any actual or
threatened infringement of any third-party’s Intellectual Property Right by:
9.4.1. obtaining the right for Customer to continue to use the
Services, the Site, and the Materials materially as contemplated by this Agreement; 9.4.2. modifying or replacing the Services, the Site, and the
Materials, in whole or in part, to make the Services, the Site, and the Materials (as so
modified or replaced) non-infringing, while providing materially equivalent features and
functionality, in which case such modifications or replacements will constitute the Services,
the Site, and the Materials, as applicable, under this Agreement; or 9.4.3. if the options in Sections 9.4.1 or 9.4.2
are not commercially reasonable, by written notice to Customer, terminating this Agreement with
respect to all or part of the Services, the Site, and the Materials, requiring Customer
immediately to cease any use of the Services, the Site, and the Materials or any specified part
or feature thereof, adjusting Fees going forward, and issuing Customer a refund equal to the
balance of any prepaid and unused amount.
9.5. THIS SECTION 9 (INDEMNIFICATION) SETS FORTH CUSTOMER’S
SOLE REMEDIES AND TLA’S SOLE LIABILITY AND OBLIGATION WITH RESPECT TO ANY INDEMNIFICATION CLAIMS ARISING
OUT OF, OR RELATED TO, THIS AGREEMENT, INCLUDING FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS
AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES, THE SITE, AND THE MATERIALS) INFRINGES,
MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
Limitation of Liability
10.1. EXCLUSION OF
DAMAGES . IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES), OR LOSS OF
PROFITS, BUSINESS, BUSINESS OPPORTUNITIES, REPUTATION, TURNOVER, OR REVENUE, LOSS OF ANTICIPATED SAVINGS
OR WASTED EXPENDITURE (INCLUDING MANAGEMENT TIME), LOSS OR LIABILITY UNDER, OR IN RELATION TO, ANY OTHER
CONTRACT, OR LOSS OF GOODWILL, IN EACH CASE, (I) DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH
THE SITE, MATERIALS, OR THE FAILURE OF ANY PARTY HEREUNDER TO PERFORM ITS OBLIGATIONS HEREUNDER, AND
(II) WHETHER DIRECT OR INDIRECT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT
LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO
THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL,
CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO THE EXTENT
PROHIBITED BY LAW. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CUSTOMER’S (AND ITS END
USER’S) INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO TLA
OR ITS THIRD-PARTY SUPPLIERS.10.2. CAP ON MONETARY
LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF TLA UNDER OR IN CONNECTION WITH THE
SITE, THIS AGREEMENT, OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE LESSER OF (A) THE
VALUE OF ALL AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE ACT OR
OMISSION ALLEGED TO GIVE RISE TO SUCH LIABILITY, (B) $50,000 USD, OR (C) CUSTOMER’S ACTUAL DIRECT
DAMAGES. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF
ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO
CUSTOMER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE. THE EXCLUSIONS AND LIMITATIONS IN THIS
SECTION 10.2 SHALL NOT LIMIT OR OTHERWISE RELIEVE CUSTOMER OF ITS PAYMENT OBLIGATIONS UNDER THIS
AGREEMENT.
Force Majeure .
11.1. No Breach or
Default . In no event will either Party be liable or responsible to the other Party, or be
deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or
performing this Agreement, except for any payment obligation, when and to the extent such failure or
delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure
Event ”), including (without limitation) (i) acts of God, (ii) acts of government, (iii) natural
disasters such as floods, earthquakes, and severe weather events, including hurricanes and tornados,
(iv) international or national hostilities, including acts of war (declared or undeclared), invasion,
insurrection, terrorism, mass casualty events, or other intentional violent actions, (v) epidemics,
pandemics, or public health emergencies, (vi) explosions, fires, or other catastrophes, (vii) power
failures or blackouts, (viii) strikes or labor protests, (ix) lockouts, (x) riots, (xi) civil unrest,
(xii) inevitable accidents, (xiii) inability to procure labor or materials, (xiv) embargoes or
blockades, (xv) national or regional shortage of adequate power or telecommunications or transportation,
or (xvi) any other event, like or unlike those listed herein.11.2. Affected Party
Obligations . In the event of any failure or delay caused by a Force Majeure Event, the
affected Party shall give prompt written notice to the other Party stating the period of time the
occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay
and minimize the effects of such Force Majeure Event.
Disputes
12.1. Informal
Resolution . Before filing a claim against TLA, Customer shall attempt to resolve the
dispute informally by sending TLA a written notice of dispute at dispute-notice@tlatech.io that
includes such Customer’s name, the affected End User’s name (if applicable), a detailed
description of the dispute, and the relief sought. TLA will contact Customer via email. If a
dispute is not resolved within sixty (60) days after submission of the original dispute notice
from Customer to TLA, Customer may bring a formal proceeding pursuant to section 12.3 ;
provided that the Parties have acted in good faith to try to resolve the dispute informally.
All claims or disputes brought against TLA, any notice of dispute, and any Violation Notice (in
each case, by Customer or one of its End Users) alleging a violation of Law by TLA, shall be
brought, sent, and/or communicated to TLA on a confidential basis, and shall not be made
public. Both Customer and TLA agree that this dispute resolution procedure is a condition
precedent which must be satisfied before initiating any arbitration against the other Party.
12.2. Waiver of
Jury Trial . TLA AND CUSTOMER ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THESE TERMS, CUSTOMER’S OR ITS END USERS’ USE OF THE SITE, ANY CONTENT ON THE SITE,
OR OTHER MATTERS BETWEEN TLA AND CUSTOMER (OR ANY OF ITS END USERS) IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE TLA TERMS OF SERVICE, CUSTOMER’S AND ITS END USERS’ USE OF THE
SITE, ANY CONTENT ON THE SITE, OR OTHER MATTERS BETWEEN TLA AND CUSTOMER (OR ANY OF ITS END
USERS). CUSTOMER CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF TLA HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A
LEGAL ACTION, (B) CUSTOMER HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) CUSTOMER MAKES
THIS WAIVER VOLUNTARILY, AND (D) TLA HAS AGREED TO PROVIDE END USERS ACCESS TO THE SITE SOLELY
DUE TO THE WAIVER AND CERTIFICATIONS IN THIS SECTION 12.2 .12.3. Mandatory Arbitration TLA AND CUSTOMER AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
12.3.1. Arbitration
Agreement and Class Action
Waiver . If the dispute remains unresolved sixty (60) days after Customer
first contacts TLA in writing under Section 12.1 (Informal Resolution) , Customer
and TLA agree to resolve any remaining dispute, controversy or claim (collectively,
“Claim”) relating to the Site or Materials, and any use or access or lack of access
thereto, will be resolved by arbitration. Customer and TLA agree that any Claim will be
settled by final and binding individual arbitration, using the English language,
administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS
Rules”) then in effect (those rules are deemed to be incorporated by reference into this
Section 12.3 (Mandatory Arbitration) , and as of the date of these Terms).
Because Customer contracts with TLA, these Terms, and this Section 12.3 (Mandatory
Arbitration) concern interstate commerce, the Federal Arbitration Act (“FAA”)
governs the arbitrability of all disputes. However, the arbitrator will apply
applicable substantive Law consistent with the FAA and the applicable statute of
limitations or condition precedent to suit. Arbitration will be handled by a sole
arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may
be entered in any court that has jurisdiction. Any arbitration under these Terms
will take place on an individual basis – class arbitrations and class actions are
not permitted. Customer understands that by agreeing to these Terms, Customer and
TLA are each waiving the right to trial by jury or to participate in a class action
or class arbitration.
12.3.2. Exceptions . Notwithstanding the
foregoing, Customer and TLA agree that the following types of disputes will be resolved
in a court of proper jurisdiction:
12.3.2.1. disputes or claims within the
jurisdiction of a small claims court consistent with the jurisdictional and
dollar limits that may apply, as long as it is brought and maintained as an
individual dispute and not as a class, representative, or consolidated action or
proceeding; 12.3.2.2. disputes or claims where the sole form
of relief sought is injunctive relief (including public injunctive relief); or
12.3.2.3. intellectual property disputes.
12.3.3. Costs
of Arbitration . Payment of all filing, administration, and arbitrator costs
and expenses will be governed by the JAMS Rules, except that if Customer demonstrates
that any such costs and expenses owed by Customer under those rules would be
prohibitively more expensive than a court proceeding, TLA will pay the amount of any
such costs and expenses that the arbitrator determines are necessary to prevent the
arbitration from being prohibitively more expensive than a court proceeding (subject to
possible reimbursement as set forth below).Fees and costs may be awarded as provided pursuant to applicable Law. If the arbitrator finds
that
either the substance of Customer’s claim or the relief sought in the demand is frivolous or
brought
for an improper purpose (as measured by the standards set forth in Federal Rule of Civil
Procedure
11(b)), then the payment of all fees will be governed by the JAMS rules. In that case, Customer
agrees to reimburse TLA for all monies previously disbursed by it that are otherwise Customer’s
obligation to pay under the applicable rules. If Customer prevails in the arbitration and is
awarded an amount that is less than the last written settlement amount offered by TLA before the
arbitrator was appointed, TLA will pay Customer the amount TLA offered in settlement. The
arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or
expenses at any time during the proceeding and upon request from either party made within
fourteen
(14) days of the arbitrator’s ruling on the merits
12.3.4. WAIVER OF
RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES
MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH
RESPECT TO
SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court
decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative
class, private attorney general, or consolidated or representative action must be brought in a
court
of proper jurisdiction and not in arbitration.
Technical Support Services
13.1. Technical Support
Services . Provided that Customer has paid TLA all Fees owed to date, and subject to the
terms and conditions of this Agreement, TLA shall provide Customer the Technical Support Services at
reasonable times during normal business hours. Customer acknowledges and agrees that any of End Users
are authorized to request Technical Support Services hereunder.13.2. Support Data;
Ownership . Support Data may be used by TLA to provide the Custom Support Services to
Customer and to improve the Services. As between the Parties, TLA holds all right, title and interest in
and to Support Data.
Custom Support Services and eDiscovery Support Services
14.1. Custom Support Services and eDiscovery Support Services . The Custom Support Services and the eDiscovery Support Services provided pursuant to this Agreement shall be provided by TLA only when specified in an Order. The fees for such services shall be charged in accordance with the applicable Order only if and when such Services are requested and TLA agrees to provide such Services. Customer acknowledges and agrees that any of End Users are authorized to request Custom Support Services and eDiscovery Support Services hereunder and that Customer shall be responsible for the associated fees.14.2. The Custom Support Services and the eDiscovery Support
Services, if any, shall be provided subject to the terms and conditions of this Agreement.
Customer Exports of Content on the Site
15.1. Notwithstanding any provision in this Agreement or the TLA
Terms of Service to the contrary, Customer agrees that only the following data may be downloaded or
exported from the Site by or on the behalf of Customer or any of its End Users:
15.1.1. such data that can be exported by Customer or its End
Users from the Site using the export and download tools that are available and authorized for
use by Customer or its End Users on the Site at the time of the export request; 15.1.2. documents that have been uploaded to the Site through
the Case File or the eDiscovery Application by Customer or any of its End Users; and 15.1.3. text content that has been Posted to the Site by
Customer or any of its End Users.
15.2. Notwithstanding any provision in this Agreement or the TLA
Terms of Service to the contrary, Customer agrees that neither Customer nor any of its End Users has any
rights, and TLA has no obligation to provide or allow Customer, to download or export any data
(including Content) in any format other than (i) in the case of documents uploaded to the Site, the
format in which the documents were uploaded or could be downloaded or exported from the Site using the
export and download tools that are available and authorized for use by Customer or its End Users on the
Site at the time of the export request; and (ii) in the case of all other data (including all other
Content), a plain text format. For the avoidance of doubt, Customer acknowledges it has no entitlement
to, and TLA is not obligated to meet, permit, or grant any Customer request for, the exporting of
Content in the form or structure in which it is displayed or maintained by the Site or by TLA.
Miscellaneous.
16.1.
16.1.1. Governing
Law . This Agreement shall be governed by and construed in accordance with the laws
of the State of New York. If any provision of this Agreement is determined to contravene the
laws of the State of Delaware, it shall be deemed to be modified to the extent necessary to
comply with any such law or, if such modification is not possible under any such law, shall be
deemed to be null and void, but shall not affect the obligations of the parties hereto under any
other provision of this Agreement. 16.1.2. Export
Compliance .
16.1.2.1. The Site and other technology TLA makes
available, and derivatives thereof, may be subject to export Laws on any U.S. government
denied-party list. Customer shall not permit End Users to access or use the Site
outside of the United States, and never in a U.S. embargoed country or in violation of
any U.S. export Law.16.1.2.2. The exportation of the Site or Materials, and
all related technology and information thereof, are subject to U.S. Laws pertaining to
export controls and trade and economic sanctions, including the U.S. Export
Administration Act, Export Administration Regulations, the Export Control Reform Act,
and the Office of Foreign Assets Control’s sanctions programs, and the rules and
regulations promulgated from time to time thereunder.
16.1.3. Use of
Subcontractors . Customer consents to TLA engaging subcontractors or other third
parties to provide services on its behalf as TLA deems necessary or appropriate, in its sole
discretion, to provide the Site or the Services.16.1.4. Further
Assurances . Upon a Party’s reasonable request, the other Party shall, at the
requesting Party’s sole cost and expense, execute and deliver all such documents and
instruments, and take all such further actions, necessary to give full effect to this Agreement.
16.1.5. Contractual
Relationship . The Parties are entering into this Agreement as independent
contracting parties. Neither Party will have, or hold itself out as having, any right or
authority to incur any obligation on behalf of the other Party. This Agreement will not be
construed to create an association, joint venture or partnership between the Parties or to
impose any partnership liability upon either Party.16.1.6. Notices .
Any notice or other communication under
this Agreement given by a Party to the other Party will be in writing and will be effective upon
delivery as follows: (i) if to Customer, an email address on record for a Customer
Administrator; and (ii) if to TLA, when sent via email to legal@TLATech.io, with a duplicate
copy sent via registered mail, return receipt requested, to: Attn: Legal Department, TLATech
Inc., 845 Third Avenue, 6th Floor, New York, NY 10022 (or such subsequent address found on www.syllohq.com/contact 16.1.7. Interpretation . For purposes of this Agreement:
(i) the words “include,” “includes” and “including” are deemed to be followed by the words
“without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,”
“hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (iv) words denoting the
singular have a comparable meaning when used in the plural, and vice-versa; and (v) words
denoting any gender include all genders. Unless the context otherwise requires, references in
this Agreement: (a) to sections, exhibits, schedules, attachments and appendices mean the
sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement;
(b) to an agreement, instrument or other document means such agreement, instrument or other
document as amended, supplemented and modified from time to time to the extent permitted by the
provisions thereof; and (c) to a statute means such statute as amended from time to time and
includes any successor legislation thereto and any regulations promulgated thereunder. The
Parties intend this Agreement to be construed without regard to any presumption or rule
requiring construction or interpretation against the Party drafting an instrument or causing any
instrument to be drafted. The exhibits, schedules, attachments and appendices referred to
herein are an integral part of this Agreement to the same extent as if they were set forth
verbatim herein.16.1.8. Headings .
The headings in this Agreement are for
reference only and do not affect the interpretation of this Agreement.16.1.9. Entire
Agreement . This Agreement and all exhibits attached hereto, together with all Orders
and any other documents incorporated herein by reference (including the TLA Terms of Service and
the TLA Policies referenced herein), constitutes the sole and entire agreement of the Parties
with respect to the subject matter of this Agreement and supersedes all prior and
contemporaneous understandings, agreements, representations and warranties, both written and
oral, with respect to such subject matter. In the event of any inconsistency between the
statements made in the body of this Agreement, the related exhibits, schedules, attachments and
appendices (other than an exception expressly set forth as such therein) and any other documents
incorporated herein by reference, the following order of precedence governs: (i) first, the main
body of this Agreement, (ii) second, any Orders entered pursuant to this Agreement; and (iii)
fourth, any documents incorporated herein by reference.16.1.10. Assignment . Neither Party may assign any of its
rights or obligations hereunder, whether by operation of law or otherwise, without the other
Party’s prior written consent (not to be unreasonably withheld); provided, however, TLA may
assign this Agreement in its entirety, without the other Party’s consent to an Affiliate or in
connection with a merger, acquisition, corporate reorganization, or sale of all or substantially
all of its assets. Any purported assignment, delegation or transfer in violation of this
Section 16.11 is void. This Agreement is binding upon and inures to the benefit of the
Parties and their respective permitted successors and permitted assigns.
16.1.11. No
Third-party Beneficiaries . Except as set forth in Section 9
(Indemnification) , this Agreement is for the sole benefit of the Parties and their
respective permitted successors and permitted assigns and nothing herein, express or implied, is
intended to or shall confer upon any other entity or natural person any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.16.1.12. Modification,
Amendment and Waiver . Except as otherwise provided herein, no modification,
amendment, or waiver of any provision of this Agreement will be effective unless in writing and
signed by both Parties.16.1.13. Severability . If any provision of this Agreement
is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of this Agreement or invalidate or
render unenforceable such term or provision in any other jurisdiction. Upon such determination
that any term or other provision is invalid, illegal or unenforceable, the Parties shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible in a mutually acceptable manner.16.1.14. Equitable
Relief . Each Party acknowledges and agrees that a breach or threatened breach by
such Party of any of its obligations under Section 5 (Intellectual Property Rights) ,
Section 6 (Confidentiality and Security) or, in the case of Customer only, Section 3.1
(Acceptable Use, Limitation and Restrictions) , may cause the other Party irreparable
harm for which monetary damages may not be an adequate remedy and agrees that, in the event of
such breach or threatened breach, the other Party will be entitled to equitable relief,
including a restraining order, an injunction, specific performance and any other relief that may
be available from any court, without any requirement to post a bond or other security, or to
prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not
exclusive and are in addition to all other remedies that may be available at Law, in equity or
otherwise.
16.1.15. Anti-Corruption . Customer agrees that it has not
received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of
value from any of TLA’s employees, agents or subcontractors in connection with this Agreement.
Customer will use reasonable efforts promptly to notify TLA at legal@tlatech.io should Customer
learn of any violation of this restriction.16.1.16. Feedback .
TLA welcomes suggestions, comments and
other feedback on the Services. If Customer or any of its End Users chooses to give TLA any
ideas, know-how, algorithms, code contributions, suggestions, enhancement requests,
recommendations or any other feedback for TLA’s products or services (including the Site, any of
its features, and any Beta Preview) (collectively, “Feedback ”), Customer acknowledges and
expressly agrees that any contribution of Feedback does not and will not give or grant Customer
any right, title or interest in the Site or Materials or in any such Feedback. All Feedback
becomes the sole and exclusive property of TLA, and TLA may use and disclose Feedback in any
manner and for any purpose whatsoever without further notice or compensation to Customer and
without retention by Customer of any proprietary or other right or claim. Customer hereby
assigns to TLA any and all right, title and interest (including, but not limited to, any patent,
copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other
intellectual property right) that Customer may have in and to any and all Feedback.
