MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“Agreement”) is made effective as of the 9th day of July, 2012 (the “Effective Date”) by and between LexBlog Inc., a corporation organized under the laws of the State of Washington, with corporate headquarters located at 95 S. Jackson Street, Seattle WA 98104 (“Provider”), and Mayer Brown LLP, a limited liability partnership organized under the laws of the State of Illinois, with offices located at 71 S. Wacker Drive, Chicago, Illinois 60606-4637 (“Mayer Brown”).
NOW, THEREFORE, the parties hereto agree as follows:
1.SERVICES
1.1 Services. Services as further described in this Agreement and Statements of Work (“Services”) will be provided to Mayer Brown and its Affiliated Entities on an as-needed basis, upon written request by Mayer Brown. “Affiliated Entities” means those domestic and foreign entities, partnerships and other entities that operate in combination with Mayer Brown LLP, each of which has agreed to be governed by a single management committee,
as such other entities as may be designated by Mayer Brown from time to time. The Affiliated Entities as of the Effective Date include Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. The Mayer Brown Practices are known as Mayer Brown JSM in Asia. “Mayer Brown” and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions. Provider understands that Mayer Brown has made no promises or representations whatsoever as to the amount or potential amount of business Provider can expect at any time during the term of this Agreement. Provider will reasonably cooperate with any other third parties that Mayer Brown may designate in connection with any of the Services or Deliverables (as defined below) provided by Provider pursuant to this Agreement.
1.2 Statements of Work. The specific Services to be provided by Provider will be documented in a written statement of work under this Agreement and executed by Provider and Mayer Brown (each, a “Statement of Work” or “SOW”). Each Statement of Work will contain at least the information in Exhibit A hereto. The provisions of this Agreement are hereby incorporated into each Statement of Work, and each Statement of Work is hereby incorporated by reference into this Agreement. If the provisions of a Statement of Work conflict with the provisions of this Agreement, the provisions of this Agreement will prevail except to the extent that the Statement of Work expressly states that it supersedes the conflicting provision(s) of this Agreement (and in such case, only with respect to Services to be performed under such Statement of Work). The Services will include all related services, functions or responsibilities, that are inherent, necessary or a customary part of the Services or that are required or reasonably necessary for the proper performance and the provision of the Services, even if said services, functions or responsibilities are not specifically described in this Agreement or a Statement of Work.
1.3 Reports.
(a) If requested by Mayer Brown or required under a Statement of Work, Provider will, without additional charge, provide Mayer Brown a report at the beginning of each month in a form acceptable to Mayer Brown that specifies, for each active project under this Agreement, the activities performed by Provider during the previous month by project; the time spent to date and during the previous month by project and by each billable employee, agent and contractor of Provider; Provider’s current work plan for completion of each project; Provider’s progress toward completion of each project, and other such information as Mayer Brown may reasonably request.
(b) If Provider anticipates at any time that it will not reach one or more milestones or complete one or more assignments within the timetable prescribed in any Statement of Work, Provider will immediately so inform Mayer Brown by written notice, submit proposed revisions to the timetable and milestones that reflect Provider’s best estimates of what can realistically be achieved, and continue to work under the original timetable and milestones until otherwise directed by Mayer Brown. Such notice and proposed revisions will not excuse or relieve any of Provider’s obligations hereunder except as mutually agreed upon in writing by Mayer Brown and Provider.
1.4 Records. Provider will keep and maintain complete and accurate accounting records in accordance with generally accepted accounting principles to support and document all amounts invoiced by Provider hereunder. Upon any request from Mayer Brown, Provider will provide to Mayer Brown (or a representative designated by Mayer Brown) access to such records for the purpose of auditing such records during normal business hours. Provider will retain all records required under this Section 1.4 for six (6) years after the amounts documented in such records come due.
1.5 Changes. Mayer Brown may, at any time, by notice to Provider, request changes to a Statement of Work, As may be described in greater detail in the applicable Statement of Work, Provider will provide Mayer Brown with an estimate of the impact, if any, of such requested change on the payment terms, completion schedule and any other applicable provision of the Statement of Work, and if Provider and Mayer Brown mutually agree to such changes, a written description of the agreed changes (a “Change Order”) will be prepared that Provider and Mayer Brown will sign. In the event of any conflicts or inconsistency, the terms of a Change Order prevail over those of the Statement of Work. No verbal agreement will have any effect until a Change Order is signed by Provider and Mayer Brown,
1.6 Acceptance. Each Service or deliverable provided by Provider (each, a “Deliverable”) will be subject to acceptance by Mayer Brown in accordance with the following procedures. Acceptance criteria for a Deliverable may be set forth in the applicable Statement of Work.
(a) Review. After a Deliverable has been performed or delivered, or installed and configured and is ready for production in Mayer Brown’s environment (in the case of software or other technical Deliverables) or is otherwise in final form, Mayer Brown will have thirty (30) days (or such other time period as may be specified in the applicable Statement of Work) (the “Review Period”) to review and verify that the Deliverable is in compliance with the requirements of this Agreement and the applicable Statement of Work (“Compliance”). Provider will provide all reasonable assistance to Mayer Brown in connection with this review and verification.
(b) Correction. If, during the Review Period, Mayer Brown finds that a Deliverable is not in Compliance, Mayer Brown will describe to Provider in reasonable detail why the Deliverable is not in Compliance. Within five (5) business days (or such other time period as may be agreed in writing by the parties) after receipt of that description (the “Correction Period”), Provider will, at no additional cost to Mayer Brown, render the Deliverable in Compliance and redeliver such corrected Deliverable to Mayer Brown. If Provider fails to render the Deliverable in Compliance and redeliver such corrected Deliverable to Mayer Brown within the Correction Period, Mayer Brown may (i) extend the Correction Period (while reserving the right to exercise the remedy in clause (ii) below) or (ii) terminate the applicable Statement(s) of Work and/or this Agreement, in whole or in part, for material breach immediately upon notice to Provider and obtain from Provider a full refund of all amounts paid by Mayer Brown under the terminated Statement(s) of Work.
(c) Acceptance. If Mayer Brown determines that a Deliverable is in Compliance, Mayer Brown will notify Provider that the Deliverable has been accepted by Mayer Brown (“Acceptance”). Acceptance does not waive any of Mayer Brown’s rights to warranty and maintenance service for the Deliverable, even if Mayer Brown knows of the problems prior to Acceptance.
2. PAYMENT FOR SERVICES
2.1 Fees and Expenses. Provider’s rates and charges for all Services provided under this Agreement will be specified in the applicable SOW and for hourly work will not exceed the rates and charges specified in the proposal, and in either case will take into account any and all discounts for which Mayer Brown is eligible. When agreed to in the applicable Statement of Work, Mayer Brown will pay reasonable and actual, pre-approved travel and communications expenses incurred by Provider to perform services under this Agreement and in accordance with Mayer Brown’s then-current travel and expense policy. Provider will be responsible for all expenses not so approved by Mayer Brown or otherwise incurred in performing its obligations hereunder.
2.2 Payment. Mayer Brown will pay any undisputed amounts within sixty (60) days after receipt of a reasonably detailed invoice from Provider, along with any supporting documentation as may be reasonably requested by Mayer Brown including, at a minimum, with respect to Services provided on a time and materials basis, a detailed description of the work performed, the individuals performing the work, the hours of time worked by each such individual, and the rates charged for each such individual. No invoice provided to Mayer Brown by Provider will include any charges other than charges for Deliverables provided to and Accepted by Mayer Brown before the date of such invoice and Mayer Brown-authorized expenses incurred in providing such Deliverables.
2.3 Prompt Pay Discount. Mayer Brown will receive a prompt pay discount of one and one-half percent (1.5%) net fifteen (15) for all undisputed amounts paid fifteen (15) days after approval of any applicable invoice by Mayer Brown.
2.4 Timely Invoicing. Provider will issue invoices to Mayer Brown as specified in the applicable SOW, or if not specified in such SOW then on a monthly basis, to the appropriate Contact Name, Title, Company/Firm Name, Address and Phone Number in the following format:
Contact Name: Doug Ladendorf
Title: Marketing DB/CRM Manager
Company/Firm Name: Mayer Brown LLP
Address: 1675 Broadway
Address: New York, NY 10019
Telephone: 212-506-2152
Mayer Brown will have no obligation to pay any fees or expenses that Provider fails to invoice to Mayer Brown within sixty (60) days following the end of the month in which the Deliverables subject to such fees were rendered. Within sixty (60) days of termination or expiration of this Agreement or a Statement of Work for any reason, Provider will submit to Mayer Brown a final itemized invoice for any fees theretofore accrued under this Agreement or Statement of Work, as applicable.
2.5 Taxes. Provider will (1) pay and be solely responsible for any and all taxes, including income, employment related taxes or charges, incurred or due as a result of Provider’s performance hereunder (excluding United States sales or use tax on Provider’s professional fees, if any, which will be the responsibility of Mayer Brown), as well as taxes that may be imposed by taxing authorities in jurisdictions outside of the United States (e.g., India) where or from which Provider will provide the Services, and (ii) be responsible for all obligations, reports and timely notifications relating to such matters.
3. INDEPENDENT CONTRACTOR.
3.1 Independent Contractor. The relationship of Provider and its personnel to Mayer Brown will be that of independent contractors. All persons that Provider furnishes to provide Services to Mayer Brown will be the employees or subcontractors of Provider, and will be neither the employees nor agents of Mayer Brown. Provider and its personnel will not be eligible to participate in any employment benefit plans or other benefits or conditions of employment available to Mayer Brown employees. Provider will have exclusive control over its personnel and over the labor and employee relations, and policies relating to wages, hours, working conditions or other conditions of its personnel. Provider will have the exclusive right to hire, transfer, suspend, lay off, recall, promote, assign, discipline, discharge and adjust grievances with its personnel. Provider will be responsible and therefore solely liable for all acts and omissions of Provider personnel, including any failure of such individuals to comply with Provider’s obligations under this Agreement, as well as any acts and omissions constituting gross negligence, willful misconduct and/or fraud.
3.2 Employment. Provider will be solely responsible for all salaries and other compensation of its personnel who provide Services to Mayer Brown. Provider will be solely responsible for making all deductions and withholdings from its employee’s salaries and other compensation, and for the payment of all contributions, taxes and assessments and will comply with all other requirements of federal or state laws or regulations regarding conditions of employment including federal or state laws or regulations regarding minimum compensation, unemployment compensation, Social Security, worker’s compensation insurance and payments, environmental regulation, occupational safety and health, overtime, hours of work and equal opportunities for employment.
3.3 Staffing. Provider will consult with Mayer Brown on all personnel decisions which relate to each project, and will staff each project with personnel with sufficient skill, experience and ability to complete the project on the schedule specified in the Statement of Work. Mayer Brown may, at its sole discretion, at any time require Provider to remove from any Mayer Brown related activity any personnel objectionable to Mayer Brown, and may require Provider to replace any such personnel with other personnel requested by Mayer Brown. Mayer Brown’s right hereunder to require Provider to remove and/or replace any personnel will not in any way limit Provider’s obligation to perform under this Agreement.
3.4 Subcontractors. Provider may not subcontract any of the Services to be provided or any of Provider’s obligations hereunder, in whole or in part, without the express prior written consent of Mayer Brown, which Mayer Brown may withhold in its sole and absolute discretion. Notwithstanding Mayer Brown’s consent, Provider will be responsible and liable, both operationally and financially, for all obligations under this Agreement and the Statements of Work for Provider’s subcontractors who are involved in the performance of any Services.
3.5 Key Personnel. The parties agree that the Services of the Provider’s personnel designated as “Key Personnel” in the applicable Statement of Work (the “Key Personnel”) are essential to the satisfactory performance by Provider of the Services to be provided thereunder. Mayer Brown reserves the right to approve the appointment of and replacements for all Key Personnel. Except for disability, death or involuntary termination, Key Personnel will not be removed by Provider from the applicable Mayer Brown project without Mayer Brown’s consent.
3.6 Non-Solicitation. During the period specified below, Provider may not solicit for employment, hire or otherwise retain any employee of Mayer Brown assigned to work on a project hereunder, without the prior approval of Mayer Brown. The foregoing restriction will remain in place during the period of the employee’s assignment to a project hereunder and continue for twelve (12) months thereafter.
3.7 Security Policies. Provider will cause its personnel, while working at or visiting the premises of Mayer Brown, to comply with all the internal rules and regulations of Mayer Brown, including security procedures, and all applicable foreign, federal, state and local laws and regulations applicable to the location where said employees are working or visiting.
4. TERM AND TERMINATION
4.1 Term.
(a) Agreement. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with its terms, will remain in effect until twenty-four (24) months after the date that no Statement of Work is any longer in effect under this Agreement.
(b) Statements of Work. Each Statement of Work will have the term set forth in such Statement of Work (each, a “SOW Term”). If a Statement of Work does not establish a SOW Term, the SOW Term will commence upon the date such Statement of Work is executed by both parties and continue until the Services and other Deliverables to be provided thereunder have been completed by Provider and finally Accepted by Mayer Brown, unless terminated earlier in accordance with this Agreement. Unless otherwise provided in a statement of Work, Mayer Brown may, at Mayer Brown’s discretion, by providing written notice to Provider prior to the expiration of the then-current term of any Statement of Work, extend the term of such Statement of Work (upon the same terms and conditions as contained herein, including price) for up to two (2) additional one (1) year periods.
4.2 Termination Without Cause. Following one (1) year after the Effective Date, Mayer Brown may immediately terminate this Agreement or any Statement(s) of Work, in whole or in part, without cause and for its convenience upon five (5) days’ written notice to Provider, which termination will be without having any liability or obligation to Provider except for the charges specified in Section 4.4.
4.3 Termination for Cause.
(a) This Agreement may be terminated by Provider upon thirty (30) days’ prior written notice, if Mayer Brown materially breaches any term or condition of this Agreement and fails to cure such breach within such 30-day period.
(b) In addition to Mayer Brown’s rights of termination provided elsewhere in this Agreement, this Agreement and/or any Statement(s) of Work may be terminated by Mayer Brown, in whole or in part, for cause (i) upon five (5) days’ written notice to Provider if Provider materially breaches any term or condition of this Agreement (other than as described in clauses (ii) below) and does not cure such breach within such five (5)-day period or (ii) immediately if Provider violates any applicable laws or any of Mayer Brown’s or its clients’ safety, security, personnel, anti-corruption, or confidentiality policies, or (iii) immediately upon the insolvency or bankruptcy of Provider or the filing of a petition in bankruptcy or similar arrangement.
4.4 Effect of Termination; Survival. Upon any expiration or termination of this Agreement or a Statement of Work, Mayer Brown will be liable only for payment of undisputed fees earned as a result of Deliverables actually provided by Provider and upon Acceptance by Mayer Brown prior to the date of termination, which will be calculated in accordance with the applicable Statement of Work. Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement, including Articles 5, 6, 8, 9 and 10, will survive any termination or expiration of this Agreement and continue in full force and effect.
5. CONFIDENTIALITY
5.1 General. “Confidential Information” means any and all information provided or obtained in connection with or arising out of this Agreement, including (i) the Services, (ii) the Deliverables and Developed Works, (iii) the provisions of this Agreement, (iv) the business or matters of Mayer Brown or its Affiliated Entities, suppliers, licensors or clients, including business plans, forecasts, projections, analyses, partner, employee, client, customer and vendor information, software (including all documentation and codes), hardware and system designs, architectures and protocols, specifications, and business processes, (v) existing or contemplated technology, trade secrets, technical procedures, methodologies or proprietary rights of Mayer Brown or a supplier or contractor of Mayer Brown, which has been or will be furnished by or through Mayer Brown and (vi) Mayer Brown Client Information. In addition, Confidential Information will include any other information, data, and/or materials that have been or will be furnished by or through Mayer Brown (or its Affiliated Entities, clients, agents or suppliers) and identified as “Confidential”, “Proprietary”, or other similar marking, or which, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary. Without limiting the generality of the foregoing, any and all data, information and materials associated with any of Mayer Brown’s or its Affiliated Entities’ clients or prepared in the representation of such clients (“Mayer Brown Client Information”) will be considered the Confidential Information of Mayer Brown. Confidential Information will be kept by Provider in secure areas with restricted access. In addition, with respect to Mayer Brown Client Information, such information will be disclosed to only those people at Provider, if any, who are directly assisting Mayer Brown personnel in their representation of the applicable client as part of Provider’s provision of the Services. Confidential Information will not be utilized by Provider for any purpose other than the performance of Services for Mayer Brown under this Agreement and will not be copied, distributed, modified, sold, assigned, leased or otherwise used, transferred, disposed of or provided to third parties by Provider or commercially exploited by or on behalf of Provider or any Provider personnel. Provider will not possess or assert any lien against or to Confidential Information. Mayer Brown will not have any obligation to maintain the confidentiality of any information or other items provided by Provider, unless identified by Provider as being confidential.
5.2 Use of Confidential Information. Provider (i) will use the Confidential Information only in connection with Provider’s performance of its obligations under the applicable Statement of Work, and (ii) will not disclose the Confidential Information except to Provider’s employees and contractors who have first agreed to be bound by the terms and conditions of this Article 5 and who have a need to know such Confidential Information in connection with the performance of Provider’s obligations under this Agreement or any Statement of Work and then only to the extent they need to know. Provider will not, and will ensure that Provider’s personnel do not, share Confidential Information with Mayer Brown personnel, except those personnel authorized by Mayer Brown to receive such Confidential Information. If requested by Mayer Brown, prior to such disclosure Provider will cause its employees, agents, and contractors who are involved in the Services or who may have access to the Confidential Information to execute a writing, satisfactory to Mayer Brown, acknowledging and agreeing to be bound by the terms consistent with those of this Article 5. In all instances Provider will be responsible and liable for any unauthorized disclosure, publication or dissemination by or through any of Provider’s employees, agents or contractors of any Confidential Information. This Article 5 does not apply to any information (other than Mayer Brown Client Information or personally identifiable data that is protected under applicable laws) that Provider can demonstrate (a) it possessed prior to the date of this Agreement from a source other than Mayer Brown (or its Affiliated Entities, agents, clients or suppliers) without any obligation of confidentiality, (b) it rightfully receives from a third party (other than any Affiliated Entity, client, supplier or agent of Mayer Brown) without any obligation of confidentiality to such third party, or (c) is or becomes publicly available without breach of this Agreement or wrongful act or fault of Provider or personnel. If, in the reasonable opinion of its legal counsel, Provider is required by law to disclose any of the Confidential Information in connection with any legal or regulatory proceeding, Provider may disclose such Confidential Information, provided that Provider notifies Mayer Brown a reasonable time prior to disclosure, allows Mayer Brown a reasonable opportunity to seek appropriate protective measures prior to disclosure, and discloses only the minimum amount of the Confidential Information required by law.
5.3 Term of Confidentiality Obligations. The confidentiality obligations set forth herein will continue in perpetuity and will survive any termination or expiration of this Agreement and any Statement of Work. Provider acknowledges that Mayer Brown Client Information is attorney-client privileged or work product privileged and confidential, and will remain confidential indefinitely or for the maximum time permitted by law.
5.4 Data Security. Provider will take the necessary measures, including the measures that Provider takes to protect its own most confidential data: (i) to preserve the security of the Confidential Information; (ii) to prevent unauthorized access to or unauthorized modification of any Confidential Information or a Provider system (including all associated interfaces, hardware and software); (iii) to establish and maintain environmental, safety, facility and data security procedures and other safeguards against destruction, loss, alteration or theft of, or unauthorized access to, any Confidential Information; and (iv) to establish and maintain appropriate disaster recovery plans and facilities to ensure Mayer Brown will be able to continue receiving the Services in the event of a disaster. Such measures will include, at a minimum, using firewalls, password protection and virus protection software, and performing periodic, but in any event, periodic internal security audits of the Provider system and Services and tests of such disaster recovery plans and facilities. Upon reasonable request, Provider will provide Mayer Brown with written reports detailing the results of such audits and tests, and will take appropriate measures to resolve issues thereby identified. Provider will immediately notify Mayer Brown’s relationship manager if Provider detects any targeted attempt to access or modify any Confidential Information or any security breach involving release of Confidential Information, or any other actual or suspected breach of security with respect to the Confidential Information or any Provider system, and will fully cooperate with Mayer Brown in investigating and mitigating the adverse effects of such breach.
5.5 File Access. If the Services involve the handling of Confidential Information on systems under the possession, custody or control of Provider, Provider will at all reasonable times provide Mayer Brown with unlimited and complete access via physical and remote access) to the Confidential Information. Provider will not deny Mayer Brown complete access thereto for any reason whatsoever and will provide to Mayer Brown all logins, passwords and other information necessary for Mayer Brown to gain such access. It is understood and agreed, however, that Provider may limit the methods of such access so as to protect confidential information of Provider’s other clients. Further, if Mayer Brown is given such access, Mayer Brown will limit such access and use solely to access Confidential Information within the scope of this Agreement and will not attempt to access any computer system, electronic file, software or other electronic services of Provider other than those specifically required to access such Confidential Information. Provider will not, and will ensure that the Provider personnel do not, break bypass or circumvent, or attempt to break, bypass or circumvent, any security system of a Provider system or Mayer Brown or obtain, or attempt to obtain, access to any Confidential Information, except as expressly permitted hereunder. Provider will not withhold any Confidential Information as a means of resolving any dispute.
5.6 Return of Materials. Provider will promptly deliver to Mayer Brown, or at Mayer Brown’s option, destroy, upon any expiration or termination of this Agreement or any Statement of Work and at any other earlier time Mayer Brown may so request, all memoranda, documents, notes, manuals, lab notebooks, computer diskettes, passwords, encryption keys, electronic mail and other written or electronic records (and all copies thereof) that contain any Confidential Information. If Mayer Brown requests, Provider will provide written certification by one of its officers that it has returned or destroyed all such materials.
5.7 Online Access. If Provider is given access, whether at Mayer Brown’s site or through remote facilities, to any Mayer Brown computer or electronic data storage system in order for Provider to perform the Services, Provider will limit such access and use solely to perform Services within the scope of this Agreement and will not attempt to access any Mayer Brown computer system, electronic file, software or other electronic services other than those specifically required to perform the Services specified in the applicable SOW. Provider will () limit such access to those Provider personnel with an express requirement to have such access in connection with this Agreement, (ii) if requested by Mayer Brown, advise Mayer Brown in writing of the name of each individual who will be granted such access, and (iii) strictly follow all Mayer Brown security rules and procedures for use of Mayer Brown’s electronic resources provided to Provider from time to time. All user identification numbers and passwords disclosed to Provider and any information obtained by Provider as a result of such access to, and use of any Mayer Brown computer and electronic storage systems will be deemed to be, and will be treated as, Confidential Information. Provider will cooperate with Mayer Brown in the investigation of any apparent unauthorized access by Provider to Mayer Brown’s computer or electronic data storage systems or unauthorized release of Confidential Information by Provider or its personnel.
5.8 Audit. Provider will provide to Mayer Brown, and to Mayer Brown’s auditors, inspectors and representatives, at Mayer Brown’s sole cost and expense, access at all reasonable times to the part of any facility or other location at which Provider is providing the Services, to the personnel of Provider, and to all data and Provider records (including financial books and records) relating to the Services for purpose of performing audits and inspections, to verify the integrity of data owned or controlled by Mayer Brown, to examine the systems that process, store, support and transmit that data, and to examine Provider’s performance of the Services, the accuracy of billings, and its compliance with the terms of this Agreement. Provider will provide to Mayer Brown, its auditors, inspectors, and representatives, all reasonable assistance they require in connection with such audits and inspections and will meet with Mayer Brown to review cach audit and inspection promptly after the issuance thereof. If any such audit or inspection determines that Provider is not in compliance with the terms of this Agreement or has overcharged and collected overpayments from Mayer Brown, Provider will (i) remedy such non compliance no later than five (5) days after the issuance of the audit report and (ii) reimburse Mayer Brown for the reasonable and actual costs of the audit or inspection. Mayer Brown’s failure to conduct such audits will in no way relieve any of Provider’s obligations under this Agreement.
5.9 Publicity. Provider will not, without Mayer Brown’s prior written consent, use or permit the use of the names, service marks and/or trademarks of Mayer Brown or any of its Affiliated Entities, or reveal the existence of this Agreement or its terms and conditions in any manner, including in any advertising, publicity release or sales presentation.
6. DELIVERABLES
6.1 Works. “Works” means ideas, inventions, discoveries, processes, methods, designs, know-how, strategies, techniques, formulas, specifications, computer programs including software (in source and object code forms), firmware and related operating instructions and documentation, trademarks, service marks, and work products and works of authorship of all kinds, including notes, reports, memoranda, writings, plans, outlines, research, data, figures, descriptions, drawings, diagrams, charts, sketches, patterns, compilations, lists, surveys, interview guides, and recordings (in each case, in any form or medium and whether or not patentable, reduced to practice or copyrightable).
6.2 Ownership of Outside Materials. As between the parties, Provider will retain ownership of all Works owned or acquired by Provider prior to the Effective Date or independently from the performance of the Services and Deliverables, and not based on any Confidential Information, together with all related copyright, patent and other intellectual property rights throughout the world (“Outside Materials”).
6.3 Ownership of Developed Works.
(a) Mayer Brown will own exclusively all right, title and interest in all Works prepared, developed or otherwise created, in whole or in part, by or on behalf of Provider in connection with a Statement of Work, including all related copyright, patent and other intellectual property rights therein throughout the world, including all partial or incomplete versions thereof (collectively, “Developed Works”) and, except as expressly specified in Section 6.3(b), Provider will and hereby does, irrevocably, in perpetuity and without further consideration, assign to Mayer Brown (and its successors and assigns) all right, title and interest that Provider has or may have in the future anywhere in the world in or to each of the foregoing, including all United States and foreign intellectual property rights therein.
(b) Mayer Brown will be considered the **person for whom the work was prepared” for purposes of determining the authorship of any copyright in the Developed Works, and all copyrightable aspects of the Developed Works will constitute “works made for hire” as that term is defined under Section 101 of the U.S. Copyright Act, 17 U.S.C. $ 101, as amended (the “Copyright Act”), or analogous provisions under other applicable laws, and will be owned exclusively by Mayer Brown LLP upon creation. If (and to the extent) any of the foregoing (or any part or element thereof) is found as a matter of law not to be a “work made for hire” within the meaning of the Copyright Act or analogous provisions under other applicable laws. Provider will and hereby does, irrevocably, in perpetuity and without further consideration, assign to Mayer Brown (and its successors and assigns) all right, title and interest that Provider has or may have in the future anywhere in the world in and to all United States and foreign copyrights in the Developed Works and all copies of any of the same.
(c) Mayer Brown represents and warrants that works provided to Provider for inclusion in the blog is owned by Mayer Brown or that Mayer Brown has the permission of the owner to so use such Works.
6.4 Incomplete Developed Works. Promptly upon Mayer Brown’s request or upon termination of any Statement of Work, Provider will provide to Mayer Brown the then-current version in source and object code form of any Developed Works in the possession or under the control of Provider or its personnel.
6.5 Further Assurances to Perfect Ownership. At Mayer Brown’s request, Provider will execute and deliver to Mayer Brown all documents and provide all testimony necessary to register and enforce intellectual property rights in the Developed Works solely in the name of Mayer Brown (or its designee) in any and all countries. Provider irrevocably designates and appoints Mayer Brown, and its respective legal representatives and nominees, as Provider’s agent and attorney-in-fact to act for and on Provider’s behalf to execute, register and file any applications, and to do all other lawfully permitted acts, to further the registration, prosecution, issuance and enforcements of the intellectual property rights in the Developed Works with the same legal force and effect as if executed, registered and filed by Provider.
6.6 Outside Materials and Third Party Works.
(a) License to Outside Materials. During the term of this Agreement, Provider hereby grants to Mayer Brown (and its Affiliated Entities and their respective successors and assigns) (each, a “Licensed Person”) a limited royalty-free, non-exclusive right and license to all intellectual property rights in all Outside Materials that Provider embeds in or otherwise provides with the Services or other Deliverables and/or the Developed Works or that are otherwise necessary or appropriate for each Licensed Person to fully and completely use and enjoy the Services, Deliverables and the Developed Works. The foregoing right and license includes the right for each Licensed Person to (1) use, import, copy, modify, create and own derivative works, sublicense, distribute, display and perform the Outside Materials, (ii) designate third parties, including consultants, agents, outsourcers and other third party service providers to exercise those rights and licenses on behalf of any Licensed Persons, and (iii) sublicense, transfer or assign its right and license to Outside Materials in connection with any assignment by any Licensed Persons of the associated Developed Works or any intellectual property rights there in.
(b) Consent Required for Use of Third Party Works. Provider will identify in each Statement of Work all Works not owned by Provider (“Third Party Works”) (if any) that will be embedded in or provided with, or that are required for Licensed Persons to use and enjoy, the Services, Deliverables and Developed Works. Provider will not embed or incorporate any Third Party Works into, or provide to Mayer Brown any Third Party Works with, the Services, Deliverables or Developed Works without first obtaining Mayer Brown’s prior written consent, which Mayer Brown may withhold in its sole discretion. Prior to seeking such consent from Mayer Brown, Provider will inform Mayer Brown of all license restrictions and costs associated with the use of such Third Party Works. If any Third Party Work is embedded or incorporated into or provided to Mayer Brown with any Service, Deliverable or Developed Work without first obtaining Mayer Brown’s prior written consent, Provider will, at no additional cost to Mayer Brown, obtain on behalf of each Licensed Person license rights respect to such Third Party Work that are at least as broad as the those granted by Provider pursuant to Section 6.6(a).
6.7 No Liens. No mechanics’ or other lien, or notice creating such lien, or claim or action thereon, will be filed by Provider or any person or entity acting through Provider, for Services, Deliverables or Developed Works under this Agreement. Where applicable, Provider, will, upon request of Mayer Brown, deliver to Mayer Brown contemporaneously with any payment, recordable partial waivers of lien for any partial payments, and recordable final waiver of lien for final payment.
7. INSURANCE
7.1 Required Insurance. At all times during the term of this Agreement, Provider will maintain at Provider’s own expense (1) Comprehensive General Liability Insurance with limits of not less than $2,000,000 per occurrence for bodily injury and property damage combined, (2) Worker’s Compensation Insurance with limits of liability of not less than $100,000 per accident or disease and $500,000 aggregate by disease, (3) Professional Liability Insurance for errors and omissions with limits of not less than $2,000,000 per claim, and (4) such other insurance in forms and amounts as may be reasonably required by Mayer Brown, which insurance will provide coverage for liabilities or claims for damages resulting from the Deliverables or the Services. Certificates of Insurance will be furnished to Mayer Brown from time to time upon reasonable request. Provider will cause Mayer Brown to be named as an additional insured under the policies of insurance (1) and (4) above.
7.2 Additional Insurance Requirements. Policies of insurance will be provided by insurance carriers having a minimum AM Best rating of A- The required insurance policies will be primary with respect to any other insurance or self-insurance that may be maintained by Provider or Mayer Brown. Provider agrees that the procurement and maintenance of the required insurance policies will not limit or affect any liability that Provider may have by virtue of this Agreement or otherwise. Provider shall provide Mayer Brown with certificates of insurance evidencing Provider’s compliance with this Section 7.2 signed by authorized representatives of the respective carriers (1) each year that this Agreement is in effect, and (ii) upon Mayer Brown’s reasonable request.
8. INDEMNIFICATION; LIMITATION OF LIABILITY
8.1 Intellectual Property Claims. Provider will indemnify and hold harmless Mayer Brown and its Affiliated Entities, and their respective partners, directors, employees and agents (each, an “Indemnified Person”) from and against any and all claims, demands, suits and other proceedings (“Claims”), and will pay as incurred all liability, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) associated with the same (“Losses”) arising from or relating to any claimed infringement, misappropriation or violation of any third party’s trade secrets, proprietary information, trademark, copyright, patent rights or other property rights in connection with the Services, Deliverables or Developed Works or Outside Materials. At Mayer Brown’s option, Provider will conduct the defense in any such third party Claim arising as described herein and each Indemnified Person will reasonably cooperate, at Provider’s expense, with such defense. The foregoing indemnity will not cover infringement Claims to the extent resulting from (i) modifications to the Services, Deliverables, Developed Works or Outside Materials that are not made or authorized by Provider, or (ii) infringement caused by materials provided by Mayer Brown in the form provided by Mayer Brown) for Provider to provide the Services. No settlement or compromise that imposes any liability or obligation on any Indemnified Person will be made without Mayer Brown’s prior written consent.
8.2 Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFITS, BUSINESS REVENUE, GOODWILL OR ANTICIPATED SAVINGS) HOWEVER CAUSED AND EVEN IF FORESEEABLE, NOR ANY DIRECT DAMAGES EXCEEDING THE AMOUNTS PAYABLE TO PROVIDER UNDER THE STATEMENT OF WORK GIVING RISE TO SUCH LIABILITY. THE PARTIES EXPRESSLY AGREE THAT THE FOREGOING LIMITATIONS ARE AGREED TO ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT THESE LIMITATIONS WILL SURVIVE THE DETERMINATION BY ANY COURT OF COMPETENT JURISDICTION OR DISPUTE RESOLUTION BODY THAT ANY REMEDY PROVIDED HEREIN OR AVAILABLE AT LAW FAILS OF ITS ESSENTIAL PURPOSE.
8.3 Mayer Brown Affiliated Entities. The parties acknowledge and agree that any Losses suffered by a Mayer Brown Affiliated Entity in connection with this Agreement will be deemed to be damages suffered by Mayer Brown LLP under this Agreement, and Mayer Brown LLP will be entitled to recover such Losses directly against Provider on behalf of such Mayer Brown Affiliated Entity.
9. WARRANTIES
9.1 General. Provider represents and warrants to Mayer Brown as follows: (a) Authority. (i) Provider has full power to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights, licenses and sublicense granted to Mayer Brown in this Agreement; and (ii) Provider’s compliance with the terms and conditions of this Agreement will not violate any foreign, federal, state or local laws, regulations or ordinances or any third party agreements.
(b) Conformity. All Deliverables will be and remain in Compliance, and be free from any liens and defects.
(c) Quality. Provider will perform all Services in a good, workmanlike, efficient, timely, ethical and professional manner using qualified personnel fully familiar with the underlying technology, and will be in Compliance and in accordance with all applicable laws, regulations, orders and decrees.
(d) Infringement. Neither the Services nor the Deliverables (including the Developed Works) will infringe or misappropriate any patent, trademark, trade name, service mark, copyright, trade secret or other intellectual property right of any third party.
(e) Unauthorized Code. Services and Deliverables will be free of any time bomb, viruses, trap doors, back doors or other code inserted in the Deliverables which destroys, erases, damages or otherwise disrupts the normal operation of the Deliverables or other programs, hardware or systems utilized by Mayer Brown or allows for unauthorized access to the Deliverables or other programs, hardware or systems utilized by Mayer Brown.
(f) No Inducements. Provider has not provided, and will not provide, to (1) any Mayer Brown personnel or contractor, (2) any political candidate or political party, or (3) any official or employee of any government agency, government instrumentality, government-owned enterprise, public international organization, or political party, any gift, gratuity, service, or other inducement or favor to influence or reward that personnel, contractor, candidate, party, official, or employee or to secure any improper advantage in connection with any Statement of Work.
9.2 Warranty Period. If at any time from the date of delivery or performance until the end of the twelve (12) month period following the last date of Mayer Brown’s Acceptance of the Services or Deliverables under a Statement of Work (the “Warranty Period”) the Services and Deliverables provided thereunder do not conform to the warranties set forth in Sections 9.1(b) and 9.1(c), Provider will promptly and diligently correct such nonconformities. If correction is not possible or not promptly completed by Provider, Provider will promptly replace the defective Deliverables or reperform the defective Services, or, at Mayer Brown’s option, promptly refund the entire fees paid with respect to such defective Deliverables and Services within thirty (30) days of the date that Mayer Brown notifies Provider. The Warranty Period for any reperformed Services or repaired or replaced Deliverables will restart upon Mayer Brown’s Acceptance of such Services or repaired or replaced Deliverables.
9.3 Pass-Through. To the extent assignable, Provider will and hereby does assign to Mayer Brown all warranties, representations and indemnities granted to Provider in respect of the Services and other Deliverables, including the Developed Works and any Third Party Works, and all remedies for breach of the foregoing.
9.4 Time Is Of The Essence. Provider acknowledges that time is of the essence in performing its obligations hereunder.
9.5 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN A SOW, MAYER BROWN AND PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. GENERAL
10.1 Rights in Bankruptcy. All rights and licenses granted under this Agreement by Provider to Mayer Brown and its Affiliated Entities are, and will otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (11 U.S.C. $101 et seq. or any similar law in any other country (the “Bankruptcy Code”)) or any replacement provision thereof, licenses of rights to “intellectual property” as defined under Section 101 of the Bankruptcy Code. The Parties agree that Mayer Brown and its Affiliated Entities, as licensees of such license rights under this Agreement, will retain and may fully exercise all of its rights and elections under the Bankruptcy Code. The parties further agree that, if bankruptcy proceedings are commenced by or against Provider or its licensors, Mayer Brown and its Affiliated Entities will be entitled to retain their right to use the licenses granted under this Agreement. In addition, Provider agrees that, if bankruptcy proceedings are commenced by or against Mayer Brown or its Affiliated Entities, then such debtor or its trustee in bankruptcy will have the right to exercise the licenses granted under this Agreement.
10.2 Agreement Binding: Assignment. This Agreement will be binding upon and inure to the benefit of the parties (including Mayer Brown LLP’s Affiliated Entities and their respective successors and assigns); provided, however, no assignment by Provider will be of any force, except with the prior written consent of Mayer Brown. Mayer Brown may assign this Agreement without consent from Provider.
10.3 Changes to the Agreement or Statement of Work. No waivers, amendments, modifications or other changes to or rescission of this Agreement or any Statement of Work hereunder will be binding unless executed in writing by Provider and Mayer Brown.
10.4 Governing Law. The rights and duties of the parties will be governed by the local law of the State of Illinois, excluding any choice-of-law rules that would require the application of the laws of any other jurisdiction; provided, however, that the Uniform Computer Information Transactions Act, whether now or hereafter enacted in Illinois (“UCITA”), will not apply to this Agreement or any performance hereunder and the Parties expressly opt out of the applicability of UCITA to this Agreement. The parties expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods. Each party has agreed to follow the dispute resolution procedures identified in Section 10.5 below. Each party has further agreed that any legal action or proceeding to enforce (i) the provisions of Section 10.5, (ii) any other provision of this Agreement for which judicial proceedings are a permitted recourse, (iii) a dispute resolution hereunder, or (iv) any other obligations or agreement, document or other instrument executed in connection with this Agreement, will be brought in the courts of the State of Illinois or in the United States District Court for the Northern District of Illinois.
10.5 Dispute Resolution.
(a) Negotiation. Provider and Mayer Brown will attempt to settle any dispute, controversy or claim arising out of this Agreement, its construction, interpretation, breach or performance, through consultation and negotiation in good faith and the spirit of mutual cooperation. The parties agree to first refer the matter for consideration and solution by the responsible executives of the parties. Either party may commence such proceedings by delivering to the other party a written request for such a meeting. Such request will describe the dispute and identify the requesting party’s responsible executive for purposes of resolving the dispute. The party receiving such a request will have seven (7) days to designate in writing to the requesting party its responsible executive for the purpose of resolving the dispute. The responsible executives will meet to resolve the dispute within seven (7) days after said designation or at a later date if mutually agreed upon, and at time and location as may be mutually agreed upon.
(b) Binding Arbitration. If the responsible executives are unable to resolve the dispute, then the dispute will be resolved by binding arbitration in a mutually agreed location. Provider will not withhold, and will continue to provide to Mayer Brown, the Services, Deliverables and Developed Works to be provided hereunder while the parties are proceeding to resolve their differences pursuant to this Section 10.5. Either party may invoke this arbitration provision by giving written notice to the other of the subject of the dispute. The arbitration will be conducted by a panel of three (3) arbitrators selected in accordance with the commercial rules of the American Arbitration Association (“AAA”), or other arbitration rules as may be mutually agreed to by the parties. Each arbitrator will be an attorney familiar with the factual subject matter relevant to the dispute. Each party will be entitled to discovery to the same extent permitted by the Federal Rules of Civil Procedure. In all other respects, the parties and the arbitrators will conduct the arbitration proceedings in accordance with the commercial rules of the AAA, except where preempted by federal statute, rule or regulation. The arbitrators will issue a written opinion stating the bases of the opinion and include detailed findings of fact and conclusions of law. The judgment of the arbitrators will be final and binding upon the parties to this Agreement and may be entered in any court of competent jurisdiction. Each party will choose and pay the fees and costs for the one arbitrator chosen by such party; these two arbitrators will agree and choose a third arbitrator, and the fees and costs of the third arbitrator will be shared equally by the parties to this Agreement. Each party to this Agreement will pay its own costs and attorneys’ fees. Notwithstanding the foregoing, the arbitration panel may include in its ruling a different allocation of costs, arbitrators’ and/or attorneys’ fees and/or costs.
(c) Judicial Proceedings. Notwithstanding Sections 10.5(a) and (b), nothing in this Section 10.5 will preclude either party to this Agreement from resorting to judicial proceedings, if (i) good faith efforts to resolve the dispute have been unsuccessful, (ii) the claim or suit involves intellectual property rights, or (iii) interim or provisional relief from a court, including a restraining order or an injunction, is necessary to prevent serious and irreparable injury to that party or to others.
(d) Injunctive Relief. Provider acknowledges and agrees that (i) the Confidential Information constitutes the trade secrets of Mayer Brown and its licensors, is vital to the success of Mayer Brown, its Affiliated Entities and their respective clients, and has been and will be developed at great expense to Mayer Brown and its Affiliated Entities and their respective clients, and (ii) Provider’s failure to comply with any of the terms of Section 3.7, Article 5 or Article 6 will irreparably harm Mayer Brown and money damages would not be an adequate remedy. Accordingly, Mayer Brown will have the right to enforce Section 3.7, Article 5 and/or Article 6, in any court of equity to obtain injunctive relief without the posting of any bond or other security or the proof of actual damages, which remedies will be in addition to, and not in lieu of, any other remedies available to Mayer Brown at law or in equity.
10.6 Termination Assistance Services. In addition to Provider’s other obligations under this Agreement, as requested by Mayer Brown following any termination, notice of termination, or expiration of this Agreement or any Statement of Work (in each case, regardless of the reason for termination, even if due to breach by Mayer Brown), Provider will provide to Mayer Brown (or its designee), subject to reasonable compensation, termination assistance with respect to the terminated Services, which may include, among other things, the continued performance of a portion of or all of the Services, under the terms and conditions of this Agreement as requested by Mayer Brown(“Termination Assistance Services”) for up to one-hundred eighty (180) days following such termination or expiration. Such Termination Assistance Service will be documented in a Statement of Work.
10.7 Notices. All notices required or permitted to be given by one party to the other under this Agreement will be in writing and be sufficient if sent by either certified mail, return receipt requested, facsimile or hand delivery to the parties at the respective addresses set forth below or to such other address as the party to receive the notice has designated by notice to the other party:
If to Mayer Brown: Mayer Brown LLP 71 S. Wacker Drive Chicago, Illinois 60606-4637 Attn: General Counsel Facsimile: 312-701-7711
With a copy to: Attn: Global Procurement Director
If to Provider: LexBlog, Inc 95 S. Jackson , Suite 200 Seattle, WA 98104 Attn: General Counsel Facsimile: (866) 513-5806
All notices will be effective () when delivered personally, (ii) five (5) days after deposit, postage prepaid, by certified mail, return receipt requested, (iii) the business day after deposit when delivered to a nationally recognized courier, or (iv) the business day on which facsimile transmittal is complete before 4 p.m., provided transmission is followed by notice under clauses (i) through (iii) above. Parties may change address, by giving notice of change, provided that such notice is effective only on receipt.
10.8 Anti-Corruption Compliance. Through effective internal controls, Provider shall comply and shall ensure that all Provider’s employees comply with all applicable laws and regulations relating to anti-bribery and anti corruption, including but not limited to the U.S. Foreign Corrupt Practices Act (“FCPA”) and the UK Bribery Act 2010. In connection with Provider’s services on Mayer Brown’s behalf Provider shall either (a) comply and ensure that all Provider’s employees comply with Mayer Brown’s Global Anti-Corruption Policy as updated from time to time and available on Mayer Brown’s website or (b) maintain throughout the term of the Agreement and comply with and ensure that all Provider’s employees comply with Provider’s own no less stringent policies and procedures to prevent bribery (a copy of which Service Provider will provide to Mayer Brown on request). Any request or demand for anything of value or any undue financial or other advantage of any kind received by Provider or Provider’s employees in connection with this Agreement or any proceedings or investigation against Provider’s firm or Provider’s employees in connection with anti-bribery or anti-corruption compliance must be promptly reported to Mayer Brown.
10.9 Severability. If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or over too great a geographic area, or by reason of its being too extensive in any other respect, such covenant will be interpreted to extend only for the longest period of time and over the greatest geographic area, and to otherwise have the broadest application as will be enforceable. The invalidity or unenforceability of any particular provision of this Agreement will not affect the other provisions hereof, which will continue in full force and effect.
10.10 No Waiver; Cumulative Remedies. The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, will not be construed as a waiver or relinquishment of the future performance of any rights, and the obligations of the party with respect to such future performance will continue in full force and effect. All remedies provided for in this Agreement will be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.
10.11 Limited Recourse. Notwithstanding any other provision of this Agreement, Provider’s recourse with respect to any matter (including any obligation of Mayer Brown hereunder) will be limited to the assets of Mayer Brown or the affected Affiliated Entity of Mayer Brown, and Provider will have no recourse against, and will bring no claim against, any individual partner, director, employee or agent of Mayer Brown or any of its Affiliated Entities.
10.12 Interpretation. The Article and Section headings of this Agreement and of the Statements of Work hereunder are for convenience only and will not be deemed part of this Agreement. As used herein, (a) “include” and its derivatives (including “e.g.”) will be deemed to mean “including but not limited to”, and (b) references to day, month, quarter and year refer to calendar day, month, quarter and year, respectively, unless specified otherwise, This Agreement is the joint work product of representatives of the parties hereto, accordingly, in the event of ambiguities, no inferences will be drawn against either party, including the party that drafted the Agreement in its final form.
10.13 Entire Agreement. This Agreement and the Statements of Work, together with all exhibits and schedules thereto, constitute the complete, final and exclusive statement of the terms of the agreement among the parties pertaining to the subject matter hereof and supersede all prior understandings, negotiations, discussions, and agreements of the parties with respect to the subject matter hereof.
10.14 Signatures. This Agreement and Statements of Work hereunder may be executed in counterparts, which together will constitute one and the same agreement. Each party may rely on a facsimile signature on this Agreement or a Statement of Work, and each party will, if the other party so requests, provide an originally signed copy of this Agreement or the applicable Statement of Work to the other party.