Terms of Service Agreement ("Agreement") is entered into as
of the date on which the Customer first uses the RedShift Legal,
Inc., services (as defined below) ("Effective Date") by and
between RedShift Legal, Inc ("RedShift") and Customer
WHEREAS, RedShift is a service provider that offers access to, and use of, certain applications including its fully integrated set of web-based modules ("RedShift Services") and implementation support to initiate such access and use.
WHEREAS, Customer wants to retain RedShift to allow Customer to access and use the RedShift Services under the terms and conditions set forth in this Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, Customer and RedShift agree to the foregoing and as follows:
ARTICLE 1 – GENERAL
1.1 Overview of Agreement. This Agreement represents the terms and conditions under which RedShift shall provide Customer access to and use of the RedShift Services package or packages subscribed to ("RedShift Services Package"), which may be amended from time to time to reflect additional or amended RedShift Services ordered by Customer. RedShift Services shall be provided to Customer via the Internet's world wide web. Additional services and/or deliverables may be procured consistent with the terms of this Agreement. Any attempt to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in any other document shall be void and of no force and effect.
ARTICLE 2 – REDSHIFT SERVICES
2.1 Equipment. Customer will be responsible for procuring, at Customer's sole expense, all equipment or other software ( including licenses necessary to use currently-supported versions thereof) , if any, required to use RedShift Services. For such third party hardware or software, Customer shall only receive the manufacturer's warranty, if any, and shall receive no warranties from Licensor for any such third party hardware or software.
2.2 Access Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer's employees ("Authorized Users") to use the RedShift Services Package and related documentation solely for Customer's business purposes consistent with the terms and conditions of this Agreement. RedShift will issue to one Authorized User ("RedShift Administrator") an individual logon identifier and password (''Administrator's Logon'') for purposes of administering the RedShift Services Package. Customer acknowledges and agrees that only its RedShift Administrator shall be authorized to bind Customer in connection with any service provided to Customer under this Agreement. Using Administrator's Logon, the RedShift Administrator shall assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules that control each such Authorized User's access to the RedShift Services Package. Customer shall use its reasonable efforts to see that each Authorized User will: (a) be responsible for the security and/or use of his or her logon identifier; (b) not disclose such logon identifier to any person or entity; (c) not permit any other person or entity to use his or her logon identifier; (d) use the RedShift Services Package consistent with the assigned business rules; and (e) use the RedShift Services Package in accordance with the terms and conditions of this Agreement. Customer will be responsible for: (f) advising each Authorized User of his or her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (g) any and all costs and expenses incurred through the authorized use of Customer's Logon. RedShift reserves the right to deny, suspend or revoke access to the RedShift Services, in whole or in part, if RedShift believes Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the RedShift Services inconsistent with the terms and conditions of this Agreement.
2.3 Restrictions. The customer is expected to be familiar with and to practice good Internet etiquette ("Netiquette"). The customer will comply with the rules appropriate to any network to which RedShift may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, tortuous, indecently depicts children or is likely to result in retaliation against RedShift by offended users. RedShift reserves the right to refuse or terminate service at any time for violation of this section. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group. Customer agrees that Customer and its Authorized Users will not: (a) sell, lease, license or sublicense the RedShift Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the RedShift Services in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the RedShift Services by, any third party; (d) copy or reproduce all or any part of the RedShift Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the RedShift Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the RedShift Services; (g) knowingly introduce into or transmit through the RedShift Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the RedShift Services; or (i) engage in or allow any action involving the RedShift Services that is inconsistent with the terms and conditions of this Agreement.
2.4 Non-Exclusivity. The parties acknowledge and agree that RedShift is providing access to and use of the RedShift Services to multiple customers and that such services are non-exclusive.
2.5 Availability. RedShift shall use commercially reasonable efforts to keep the RedShift Services Package available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes, unscheduled maintenance and systems outages. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, RedShift makes no guarantees that any given user will be able to access the RedShift Services Package at any given time, and RedShift shall not be liable to Customer for failure of accessibility to the RedShift Services Package.
2.6 RedShift's Licensors.
2.6.1 Terms and Conditions applicable to services provided by RedShift's Licensors. Customer acknowledges and agrees that RedShift Services are provided, in some cases, by third party Licensors to RedShift (hereinafter "Third Party Licensors"). For all RedShift Services contained in the RedShift Service Package that are provided by Third Party Licensors to RedShift, Customer agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Such Third Party Licensor terms and conditions are available upon request (the "Additional Terms and Conditions"). Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Customer acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into the terms and conditions of this Agreement as if set forth fully herein. Customer further agrees that it will be subject to all Additional Terms and Conditions where Customer elects to add services to its RedShift Services Package.
2.6.2 Changes to RedShift Licensors. Customer acknowledges that RedShift may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the RedShift Services. RedShift agrees to use reasonable efforts to prevent any service interruptions associated with RedShift's decision, if any, to change Third Party Licensors. In the event that RedShift changes Third Party Licensors, RedShift may provide Customer with notification of changes in Third Party Licensors and refer Customer to information posted on RedShift's website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement.
ARTICLE 3 – FEES; PAYMENT TERMS
3.1 Application and Use Fee. Customer shall pay any application fees, user fees, including but not limited to monthly fees and any taxes according to the RedShift's then-applicable fee schedule. Fee amounts are subject to change at any time, at RedShift's sole discretion. Customer shall pay all amounts due under any invoice to RedShift within thirty (30) calendar days of due date.
3.2 Late Payments. If Customer fails to pay any fees by the applicable due date, RedShift will have the right to: (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the RedShift Services and/or performance of the services provided by RedShift hereunder and/or terminate this Agreement. Any such suspension or termination will not relieve Customer from paying any outstanding fees plus interest and late charges. Customer will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys' fees, court costs and collection agency fees.
3.4 Taxes. Customer will pay or reimburse RedShift for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by RedShift under this Agreement, excluding, however, income taxes or gross receipts taxes which may be levied against RedShift. Such taxes may be reflected on Customer invoices.
ARTICLE 4 – LIMITED WARRANTIES
4.1 Customer Warranty. Customer represents and warrants to RedShift that: (a) Customer has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Customer and its Authorized Users will only use the RedShift Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (c) Customer warrants that it is not located in a country where export or re-export of the contents of information received via the Internet is prohibited. Should Customer receive notice of any claim regarding the RedShift Services, Customer shall promptly provide RedShift with a written notice of such claim.
4.2 RedShift Warranty. RedShift warrants that: (a) RedShift has the authority to enter into this Agreement and perform its obligations under this Agreement; and (b) RedShift will perform the services required under this Agreement in a professional and workmanlike manner.
4.3 Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, RedShift MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE SERVICES AND/OR ACCESS TO OR USE OF THE RedShift SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. RedShift SPECIFI-CALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MER-CHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ARTICLE 5 – LIMITATION OF LIABILITY RedShift'S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO RedShift THROUGH THE DATE RedShift'S LIABILITY TO CUSTOMER ACCRUES. IN NO EVENT SHALL RedShift BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS.
ARTICLE 6 –INDEMNIFICATION Customer agrees to indemnify, defend (at RedShift's sole option and at Customer's sole expense) and hold harmless RedShift, its managers, directors, officers, employees, independent contractors and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim arising out of or relating to Customer's use of and/or access to the RedShift Services or services provided hereunder, including but not limited to any claims arising out of the sale or offer for sale of any illegal, infringing, counterfeit products or services or any other misuse of the RedShift Services by Customer or its customers. Customer specifically acknowledges that RedShift shall not be liable to Customer for losses, if any, incurred as a result of fraudulent or unauthorized misuse of RedShift Services.
ARTICLE 7 – CONFIDENTIAL INFORMATION "Confidential Information" will include the terms of this Agreement, any software provided by RedShift under this Agreement, the logon identifiers and/or passwords provided to Customer and each Authorized User, the prices and fees charged under this Agreement, any other materials marked confidential by Customer or RedShift and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance. Each party acknowledges and agrees that: (a) the Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party's prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (d) publicly available; (e) already in the other party's possession and not subject to a confidentiality obligation; (f) obtained by the other party from any source without any obligation of confidentiality; (g) independently developed by the other party without reference to the disclosing party's Confidential Information; or (h) required to be disclosed by order of a court or other governmental entity; provided no less than ten (10) days written notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.
ARTICLE 8 – PROPRIETARY RIGHTS No right (except for the license granted in Section 2.2), title or interest of intellectual property or other proprietary rights in and to the RedShift Services and/or other products or services made available under this Agreement is transferred to Customer hereunder. RedShift and its Third Party Licensors retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the RedShift Services and/or other products or services provided under this Agreement. Customer will retain all right, title and interest to the documents created by Customer using the RedShift Services, subject to any rights of RedShift in underlying works from which such documents were derived.
ARTICLE 9 – TERM AND TERMINATION
9.1 Term. This Agreement will commence as of the Effective Date and shall continue thereafter on a month to month basis unless terminated pursuant to WRITTEN NOTICE MAILED DIRECTLY TO REDSHIFT AT: 101 Cambridge Place, Brooklyn, NY 11238
9.2 Termination by RedShift. RedShift shall have the right, upon written notice to Customer, to terminate this Agreement if: (a) Customer fails to timely pay RedShift any amount due to RedShift under this Agreement; (b) Customer materially breaches any term or condition this Agreement, provided such breach is not cured by Customer within thirty (30) calendar days following RedShift's notice to Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
9.3 Termination by Customer. Customer will have the right, upon written notice to RedShift, to terminate this Agreement if RedShift is in material breach of this Agreement and RedShift fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice.
9.4 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason: (a) Customer's access to, and use of, the RedShift Services will terminate; and (b) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.
9.5 Survival. Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement.
ARTICLE 10 – MISCELLANEOUS
10.1 Notices. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) upon transmission if sent via fax, with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier, in each case addressed, in the case of Customer, the address listed in RedShift's records, or in the case of RedShift, to 101 Cambridge Place, Brooklyn, NY 11238 (or to such other address as may be specified upon notice).
10.2 Assignment . Customer will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without RedShift's prior written consent, which consent may be withheld, delayed or conditioned in RedShift's discretion. RedShift will have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to Customer.
10.3 Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.
10.4 Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of RedShift and Customer. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by an authorized representative of RedShift and Customer; (b) any oral modifications to this Agreement; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.
10.5 Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless RedShift in good faith deems the unenforceable provision to be essential, in which case RedShift will have the right to terminate this Agreement in accordance with Section 10.2.
10.6 Public Announcements. Customer grants RedShift the right to use Customer's name in press releases, product brochures and financial reports indicating that Customer is a customer of RedShift.
10.7 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
10.8 Third Party Beneficiaries. Customer acknowledges that some RedShift Services may be provided by Third Party Licensors. Third Party Licensors are third party beneficiaries to this Agreement, and there are no other third party beneficiaries to this Agreement.
10.9 Governing Law; Jurisdiction; Dispute Resolution with Third Party Licensors. This Agreement will be interpreted and construed in accordance with the laws of the State of Illinois , without regard to conflict of law principles. All disputes arising out of this Agreement shall be brought only in the district and federal courts located in or for St. Clair County, Illinois. EACH PARTY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN OR FOR St. Clair COUNTY , ILLINOIS .
10.10 Non-solicitation. Customer acknowledges and agrees that the employees and consultants of RedShift are a valuable asset to RedShift and difficult to replace. Accordingly, Customer agrees that, during the term of this Agreement and for a period of twelve (12) months after the expiration and non-renewal or termination of this Agreement, Customer will not solicit or attempt to solicit any employee or consultant of RedShift.
10.11 Customer Security Responsibilities. The Customer is solely responsible for any breaches of security affecting servers under Customer is involved in an attack on another server control. If a Customer's server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the Customer is responsible for the cost to rectify any damage done both to the customer's item and any other related area affected by the security breach. The labor used to rectify any such damage is categorized as emergency security breach recovery and is currently charged at $250 USD per hour. Enquiries regarding security matters may be directed to Head of Security at security@RedShift.com .
10.12 System And Network Security. Violations of system or network security are prohibited, and may result in criminal and civil liability. RedShift may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following: Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network. Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks. Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting. Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by RedShift. Such labor is categorized as emergency security breach recovery and is currently charged at $250 USD per hour required. Enquiries regarding security matters may be directed to Head of Security at security@RedShift.com . RedShift is concerned with the privacy of online communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, RedShift urges its customers to assume that all of their online communications are insecure. RedShift cannot take responsibility for the security of information transmitted over RedShift's facilities.
10.13 Copyright Infringement - Software Piracy Policy. The RedShift service may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights. Making unauthorized copies of software is a violation of the law, no matter how many copies you are making. If you copy, distribute or install the software in ways that the license does not allow, you are violating federal copyright law. If caught with pirated software, you or your company may be liable under both civil and criminal law, and you may be liable for up to $150,000 per infringement. In compliance with the Digital Millennium Copyright Act (the "DMCA"), please send DMCA notifications of claimed copyright infringements to: Legal Department, RedShift Legal, Inc., 101 Cambridge Place, Brooklyn, NY 11238
or by e-mail to legal@RedShift.com, RedShift will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
10.14 Network Responsibility. Customers have a responsibility to use the RedShift service responsibly. This includes respecting the other customers of RedShift. RedShift reserves the right to suspend and or cancel service with any Customer who uses the RedShift service in such a way that adversely affects other RedShift customers. This includes but is not limited to: Attacking or attempting to gain unauthorized access to servers and services that belong to RedShift or its customers (i.e. computer hacking), and/or Participating in behavior, which result in reprisals that adversely effect the RedShift service or other customers' access to the RedShift service. RedShift will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a RedShift customer, whether or not the attacked account or computer belongs to RedShift, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or customer, of RedShift is strictly prohibited. Violations of this policy may be reported directly to the FBI's Infrastructure Protection & Computer Intrusion Squad at http://www.fbi.gov/programs/ipcis/ipcis.htm . RedShift will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
10.15 Lawful Purpose . All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or AUP is prohibited. This includes, but is not limited to: copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fraudulent content. Using any RedShift service or product for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited. Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of RedShift services or products is prohibited. Using the RedShift network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited. Servers hosted within RedShift network are open to the public. You are solely responsible for your usage of the RedShift network and servers and any statement you make on servers hosted within the RedShift network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.
Article 11 – MISCELLANEOUS
11.1 Headings . The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
11.2 Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.