THIS PROFESSIONAL SERVICES & SUPPORT AGREEMENT (the “Agreement”) is entered into by and between Ex Parte, Inc., a Delaware corporation, whose principal address is 7315 Wisconsin Ave. Suite 400W, Bethesda, MD 20814 (“Ex Parte,”) and the entity identified on the applicable order form (“you” and, together with Ex Parte, each a “Party” and collectively the “Parties”).
WHEREAS, Ex Parte is a leading provider of data-driven decision-making solutions in the field of law and you wish to engage Ex Parte to provide professional services and support (“Services”) on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.2 Statements of Work. The Parties may enter into one or more Statements of Work (each, an “SOW”) setting forth the specific Services to be provided by Ex Parte, including any deliverables to be provided to you by Ex Parte (the “Deliverables”). Each SOW shall be governed by the terms of this Agreement and shall set forth, to the extent applicable: (i) the effective date of the SOW; (ii) the compensation payable to Ex Parte for the specified Services along with a fee payment schedule; (iii) an estimated delivery schedule for the specified Services; (iv) the tasks and activities to be performed by each Party related to the specified Services; and (v) any additional provisions applicable to the Services to be provided under the SOW. Ex Parte may use subcontractors in the performance of the Services. No SOW nor any amendment or modification thereto shall be binding on either Party unless executed in writing by both Parties. Ex Parte shall only provide such Services as are specifically set forth in an SOW or Order Form.
1.3 Cooperation. You shall cooperate on a timely basis with Ex Parte as reasonably necessary to enable Ex Parte to fulfill its obligations and responsibilities under this Agreement, including by performing your responsibilities described in the applicable SOW or Order Form. If you do not so cooperate on a timely basis and the same results in Ex Parte’s inability to perform or delays in performing its obligations under this Agreement, Ex Parte shall not be liable for such non-performance or delays to such extent. In performing its obligations and responsibilities under this Agreement, Ex Parte shall be entitled to rely on information and materials provided by you to Ex Parte (“Customer Materials”).
1.4 Definition of Ex Parte Solution; Not Legal Advice. The “Ex Parte Solution” means the Services, the Ex Parte Prediction Engine™, any other Ex Parte software, computer code, applications and products, and any documentation, processes, procedures, methodologies, know-how, trade secrets, discoveries, designs, ideas, inventions, and other intellectual property used by Ex Parte in providing the Services. The Ex Parte Solution does not include Customer Materials. The Ex Parte Solution is not intended to and does not constitute legal advice and no attorney-client relationship is formed by your use of the Ex Parte Solution.
2.1 Fees and Charges. You shall pay Ex Parte the fees set forth in each SOW and Order Form. You will also reimburse Ex Parte for all reasonable out-of-pocket expenses incurred by Ex Parte in connection with the provision of the Services.
2.2 Invoicing and Payment. Fees and expenses will be invoiced in accordance with the relevant SOW or Order Form. Unless otherwise specified in the SOW or Order Form, you shall pay all fees and expenses via Automated Clearing House (ACH) or wire transfer within forty-five (45) days of invoice date. All payments shall be made in United States dollars. You are responsible for providing complete and accurate billing and contact information to Ex Parte and notifying Ex Parte of any changes thereto.
2.3 Taxes. All fees and expenses to be paid by you under the Agreement are exclusive of any applicable withholding, sales, use, excise, value added or other taxes (other than Ex Parte’s income taxes). Such taxes shall be your sole responsibility; any such taxes which Ex Parte is legally responsible to collect from you shall be billed by Ex Parte and paid by you.
2.4 Payment Disputes. In the event you wish to dispute any invoiced charges reasonably and in good faith, you shall raise such disputes within thirty (30) days of the applicable invoice. You agree that disputed charges, if any, shall not be a basis for withholding payment by you on non-disputed items. Neither Party shall offset any claim or demand by it against any amounts due to the other Party hereunder. Ex Parte shall not exercise its rights under Section 2.5 hereof to the extent you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
2.5 Overdue Charges. Subject to Section 2.4 hereof, if any invoiced amount is not received by Ex Parte by the due date, then without limiting Ex Parte’s other right or remedies, those charges may accrue late interest at a rate of one and one-half percent (1.5%) of the outstanding balance per month or the maximum rate permitted by law, whichever is less, and Ex Parte may suspend provision of Services and your access to the Ex Parte Prediction Engine™ (as applicable) until such amounts have been paid. You shall pay for all collection, administration, and other reasonable costs incurred by Ex Parte in collecting or attempting to collect any past due amounts plus accrued interest, including, but not limited to, reasonable attorneys’ fees incurred during or as a result of collection.
3.1 Ownership. You shall not by virtue of this Agreement or otherwise acquire any rights whatsoever in the Ex Parte Solution, aside from the limited rights expressly granted herein, and you hereby expressly disclaim any other rights therein. Ex Parte retains all rights, title, ownership and interest in and to the Ex Parte Solution (including, without limitation, any data provided by Ex Parte or derived therefrom), as well as any modifications, refinements, enhancements, upgrades, improvements or derivatives thereof, including, without limitation, all related patent, copyright, trade secret, trademark and other intellectual property and proprietary rights. Subject to and conditioned upon your payment of all amounts due hereunder and compliance with and performance in accordance with all other terms and conditions of this Agreement, Ex Parte hereby grants to you a limited, non-exclusive, revocable, non-transferable, non-sublicensable right to use the Deliverables for your internal business purposes for the term of the applicable SOW (or, if there is no applicable SOW, the term of the applicable Order Form) and such additional rights, if any, with respect to Deliverables as are specifically set forth in the applicable SOW or Order Form. All rights not specifically granted to you hereunder are reserved by Ex Parte. In the event any suggestions, ideas, enhancement requests, feedback, recommendations, or other information are provided by you or on your behalf relating to the Ex Parte Solution (the “Feedback”), you hereby assign to Ex Parte all of your right, title and interest in and to all such Feedback (including, without limitation, all intellectual property rights therein), and Ex Parte may freely use such Feedback for any purpose, without obligation to you. You represent and warrant that you have all rights in Customer Materials and shall own and continue to own all rights in Customer Materials, including, without limitation, all rights, consents, permissions, and authorizations necessary to provide Customer Materials to Ex Parte as contemplated hereunder. You grant to Ex Parte the right to transmit, use, and disclose Customer Materials to the extent necessary to provide the Ex Parte Solution or to comply with laws.
3.3 Trademarks. Each Party will own and retain all rights in its trademarks, service marks, and logos. Ex Parte™ and Ex Parte Prediction Engine™ are trademarks of Ex Parte. You may not exploit the goodwill of Ex Parte, including, without limitation, its trademarks, service marks, or logos, without the prior written consent of Ex Parte.
Your right to reject any Services shall be solely based upon substantial lack of conformity to the written specifications as documented in the SOW or Order Form, as applicable. If you determine that Services rendered do not substantially conform to the specifications set forth therein, you shall have thirty (30) days from the rendering of Services to notify Ex Parte in writing of such non-conformity, accompanied by a detailed explanation, (a “Notice of Non-Conformity”), or the Services shall be deemed accepted by, and satisfactory to, you. In the event of a notice of Non-Conformity, your exclusive remedy and Ex Parte’s sole obligation will be, at Ex Parte’s sole discretion, a correction or workaround for the non-conforming Services or termination of the applicable SOW or Order Form, in whole or in part, and return of the portion of fees specifically paid for such non-conforming Services.
5. LIMITED WARRANTIES
5.1 Ex Parte Limited Warranties. Ex Parte represents and warrants that (i) it shall perform all Services listed in an SOW or Order Form, as applicable, in a manner conforming to generally accepted industry standards and practices; and (ii) none of the Services performed under an SOW or Order Form, as applicable, will infringe or otherwise violate any third-party intellectual property rights. In the event of any breach of this warranty, you shall have thirty (30) days from the discovery of such breach to notify Ex Parte in writing of such breach, accompanied by a detailed explanation. For any breach of this warranty, your exclusive remedy and Ex Parte’s entire liability will be, at Ex Parte’s sole discretion, a correction or workaround for the non-conforming Services or termination of the applicable SOW or Order Form, in whole or in part, and return of the portion of fees specifically paid for such non-conforming Services.
6. LIMITATION OF LIABILITY
6.1 Definition of Covered Parties. “Ex Parte Covered Parties” means Ex Parte and any of Ex Parte’s officers, directors, employees, subcontractors, agents, successors, and permitted assigns. “Your Covered Parties” means you and any of your officers, directors, employees, subcontractors, agents, successors, and permitted assigns. Each of Ex Parte Covered Parties and Your Covered Parties are referred to as the “Covered Party” and, collectively, the “Covered Parties”.
7.3 Indemnification Procedure. The Party seeking indemnification, as the indemnitee, will provide the other Party, as the indemnitor, prompt written notice of any Claim for which indemnity is sought. The indemnitee will give the indemnitor sole control of the defense and settlement of the Claim and all negotiations for the compromise or settlement of the Claim; provided, however, that the indemnitor may not settle any such Claim without the indemnitee’s prior written consent (which will not be unreasonably withheld, conditioned, or delayed) if the proposed settlement would impose liability on, or contain any admission of fault or guilt by, the indemnitee or would require the indemnitee to be bound by an injunction of any kind. The indemnitee shall provide the indemnitor all available information and reasonable assistance in connection with such defense and settlement. Notwithstanding the foregoing, to the extent that such Claim is based on the infringement or misappropriation of a third party’s intellectual property rights, the indemnitor will have the right, at its sole option and expense, to procure for the indemnitee the right to continue using such materials, or to replace or modify them with non-infringing materials.
8.1 Confidential Information. In connection with this Agreement, the Parties may disclose or may learn of or have access to certain Confidential Information (as defined below) of the other Party (including its affiliates, suppliers, customers, or subcontractors). For purposes hereof, “Confidential Information” means all non-public information (whether or not prepared by the disclosing party and whether or not marked or designated as “confidential” or “proprietary”) disclosed by one Party to the other Party, directly or indirectly and regardless of the form of disclosure. The pricing and other terms of any Order Form and SOW constitute Ex Parte Confidential Information, provided that the existence of an agreement between the Parties shall not constitute Confidential Information. Confidential Information shall not include information that: (i) is already in the public domain or becomes available to the public through no breach of this Agreement; (ii) was in the receiving party’s possession prior to its receipt from the disclosing party; (iii) is received by the receiving party from a third party free to disclose such information to the receiving party without breach by such third party of any obligation to maintain confidentiality; or (iv) is independently developed by the receiving party without access to any information originating from the disclosing party.
8.2 Obligations. Each Party agrees to not use the Confidential Information of the other Party other than as necessary to perform its obligations under this Agreement. Each Party agrees to hold the Confidential Information of the other Party in strict confidence and protect it with at least the same degree of care used to protect its own confidential and proprietary information and not less than reasonable care, and may not disclose the other Party’s Confidential Information except (i) to its and its affiliates’ directors, employees, agents, and advisors who need to know such Confidential Information for purposes of performing the Party’s obligations under this Agreement and who have agreed in writing to terms substantially similar to those set forth in this Section 8 or (ii) to the extent required to be disclosed by any applicable law or by a judicial or other governmental process, provided that the receiving party shall, to the extent permitted by law, notify the disclosing party of such disclosure in advance with reasonable time to allow the disclosing party to contest the same. These obligations shall continue for a period of three (3) years following termination of this Agreement and, with respect to information that constitutes a trade secret, for so long as such information remains a trade secret. At the disclosing party’s request, the receiving party shall return or destroy all materials in any medium that contains the requesting party’s Confidential Information and retain no copies, and certify such return or destruction to the disclosing party in writing.
8.3 No Implied Rights. Nothing contained in this Section 8 shall be construed as obligating a Party to disclose its Confidential Information to the other Party. All Confidential Information and derivations thereof remain disclosing party’s sole property and, other than as expressly provided in this Agreement, no license or other right to Confidential Information or any intellectual property is granted or implied by this Agreement or any disclosure.
8.4 Prior Non-Disclosure Agreement. The terms of this Section 8 supplement but do not supersede the terms of any agreement of confidentiality previously entered into between the Parties; provided that any information required to be treated as confidential under such agreement shall be treated as Confidential Information under the terms of this Agreement; and further provided that in the event of a conflict between any provision of this Agreement and that of any agreement of confidentiality previously entered into between the Parties, the provision affording the greater protection to the Confidential Information shall prevail.
9.1 Term. This Agreement is effective as of the “Effective Date” set forth in the first Order Form between the Parties that includes the purchase and delivery of Services (the “Agreement Effective Date”). The initial term of this Agreement shall begin on the Agreement Effective Date and shall expire on the one-year anniversary of the Agreement Effective Date, unless terminated earlier in accordance with this Agreement. The initial term shall automatically renew for an unlimited number of one (1) year renewal terms for so long as there remains any undelivered Services included in any active Order Form or SOW, unless one Party provides the other with written notice of its intent to terminate not less than ninety (90) days prior to the end of the then-current initial term or renewal term.
9.2 Termination for Convenience. Either Party may terminate this Agreement or cancel an order for the portion of any undelivered Services included in any Order Form or SOW at any time by providing ninety (90) days prior written notice to the other Party.
9.3 Termination for Cause. Either Party may terminate this Agreement or cancel an order for the portion of any undelivered Services included in any Order Form or SOW by providing written notice, with immediate effect, in the event:
(a) the other Party breaches a material provision of this Agreement and fails to cure such breach within thirty (30) days following notice specifying the nature and extent of such breach (for the avoidance of doubt, failure to pay constitutes material breach);
(b) the other Party becomes insolvent, makes a general assignment for the benefit of creditors, ceases conducting business in the ordinary course, or files a petition (or a petition is filed against it) under bankruptcy or other insolvency law providing for the relief of debtors;
9.4 Effect of Termination. Upon termination of this Agreement or an applicable Order Form or SOW, all sums owed to Ex Parte as of the effective date of termination (including, without limitation, all sums owed for professional services and support rendered by Ex Parte prior to the effective date of termination) shall be immediately due and payable. Provisions of this Agreement that, by their nature, are intended to survive termination of the Agreement shall survive such termination, including, without limitation, Sections 6, 7, and 8. In the event of your payment default or termination of this Agreement by Ex Parte under Section 9.3, you will not receive or retain any licenses or rights in any Deliverables under the applicable SOW or Order Form.
10.1 Updates to Agreement. This Agreement may be changed from time to time by Ex Parte, provided that if any changes are made to this Agreement, such changes will (a) only be applied prospectively; and (b) not be specifically directed against you but will apply to all similarly situated Ex Parte customers. The most recent version of the Agreement incorporated into an Order Form governs such Order Form and all of your prior Order Forms and SOWs.
10.2 Compliance with Laws. Each Party shall comply with all applicable laws and regulations and shall obtain any permits or licenses necessary for its operations. Neither Party shall take any action in violation of any applicable law or regulation that could result in liability being imposed on the other Party. You may not provide access to the Ex Parte Solution to anyone identified on OFAC’s list of Specially Designated Nationals, the UK’s HM Treasury’s Consolidated List of Sanctions Targets, or the EU’s Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions.
10.3 Force Majeure. No Party shall be liable for any default or delay in the performance of its obligations under this Agreement (other than a payment default) if such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, acts of government, civil war, insurrection or riot, strike, labor trouble, performance issues with underlying technology providers, computer telecommunications failures or delays involving hardware or software not within the Party’s control, network intrusions or denial of service attacks, or any other cause beyond the Party’s reasonable control.
10.4 Future Functionality. You agree that your purchases hereunder are not contingent on the delivery of any future functionality or features.
10.5 Third Party Solutions. You acknowledge and agree that use of the Ex Parte Solution may require you to separately obtain from third parties licenses or other access to certain third-party services, systems, or software (“Third Party Solutions”). You shall be solely responsible for obtaining the necessary licenses for any such Third Party Solutions and for complying with the terms and conditions of any applicable agreements.
10.6 Relationship of the Parties. Nothing in this Agreement is intended to, or will, create a partnership or joint venture or employment relationship between the Parties. Except as expressly set forth herein, no Party has any authority hereunder to bind or commit the other Party. In the performance of their respective duties or obligations under this Agreement, no Party will be deemed to be the agent of the other Party.
10.7 Notices. All notices and other communications hereunder shall be in writing. Notices shall be deemed to have been properly given on the date sent by electronic mail, if sent before 5:00 PM Eastern Time, and if not, on the following day; on the date deposited in the mail, if mailed; or on the date received, if delivered in any other manner. Legal notices to Ex Parte should be sent to Ex Parte, Inc., Attn: Chief Executive Officer, 7315 Wisconsin Ave., Suite 400W, Bethesda, MD 20814. Legal notices to you should be sent to your address specified in the most recent Order Form. A Party may change its notice address for purposes of this Section 10.7 by providing notice of such change to the other Party in accordance with the terms hereof.
10.8 Amendments; Waivers. No waiver, alteration, modification, or amendment of this Agreement shall be effective unless in writing and signed by both Parties. The failure of either Party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time and shall not imply waiver of any other provision.
10.10 Choice of Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware regardless of the law that might otherwise apply under applicable principles of conflicts of law. All disagreements or disputes arising out of or in connection with this Agreement shall be submitted to the court of proper jurisdiction in the State of Delaware and the Parties hereby agree to submit to the exclusive jurisdiction of the courts located in the State of Delaware.
10.11 Severability. This Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable, and consistent with its original intent, and (b) such invalidity or unenforceability will not affect any other provision of this Agreement.
10.13 Construction. The Parties hereby agree that the rule of construction that ambiguities are to be resolved against the drafting Party is not applicable and will not be employed in the interpretation of this Agreement to favor one Party over the other. Headings in this Agreement are for convenience only and shall not affect the interpretation thereof.
10.14 Execution; Binding Effect. This Agreement and any Order Form or SOW incorporating the terms of this Agreement may be signed in duplicate originals or in separate counterparts, each of which is effective as if the Parties signed a single original, and signed digitized copies shall legally bind the Parties to the same extent as original documents. Each of the Parties represents that it possesses all necessary powers, rights, and authority to enter into this Agreement and any Order Form or SOW incorporating the terms of this Agreement.
Revised April 25, 2022